15 January 2016

Kenya: Heated Debate Characterise Ruto Poll Violence Case At ICC

A heated debate on the standard to be applied in making a decision on Deputy President William Ruto's ICC case characterised the final day of oral submissions on the 'no case to answer motion' in The Hague.

Prosecution lawyer Anton Steynberg and the victims lawyer Wilfred Nderitu on Friday argued that the defence was seeking to unnecessarily alter the criteria to be applied which anticipated only the consideration of quantity and less of the quality of the prosecution evidence.

On the other hand, the defence of Mr Ruto and Mr Joshua Sang wants the trial judges to make a decision on whether the suspects have a case to answer based on the credibility.

"The defence wants the chamber to apply a different standard, not even at the eleventh hour but after the clock has struck midnight yet the parties have operated on the criteria that only requires that the evidence be taken at its highest level without analysis at this stage," Mr Steynberg told the trial judges Chile Eboe-Osuji, Robert Fremr and Olga Carbuccia.


On Thursday, the defence delved into the credibility issues surrounding the witnesses as well as the facts of the case.

Mr Ruto's lead counsel, Karim Khan, had poked holes into the prosecution evidence which he suggested cannot hold the guilt of the accused beyond reasonable doubt.

"The prosecution vehicle cannot carry the weight. The chassis is broken and the wheels are off. The vehicle cannot move," Mr Khan told the trial judges.

But on Friday, the prosecution told the trial judges that the defence was using a different standard other than the one set by the trial judges on the no case to answer submissions.

Furthermore, the prosecution accused the defence of selectively and subjectively interpreting events to suit their circumstances.

"As predicted, the defence has relied on biased interpretation of evidence without looking at the whole body of evidence," said Mr Steynberg who added that the time to analyse the evidence was after the defence had also presented its case.


Mr Nderitu also accused the defence of misunderstanding proceedings of the no case to answer and instead seeking to discredit the evidence, which was not envisioned at the current stage.

With a lot of difficulty and frequent interruptions by judge Osuji who later apologised for his frequent interventions, Mr Nderitu argued that the standard required at the no case to answer stage is whether there is "sufficient evidence" not credible evidence, that a reasonable court could convict the suspects.

"The prosecution evidence at this stage would be assumed to be worthy of credence irrespective of whether at the defence stage, there would be issues of credibility. At this stage however, what is necessary is the existence of evidence that a reasonable chamber could convict. It is a question of the existence of evidence rather than the strength of the evidence, meaning the evidence rendered in court in its totality," Mr Nderitu presented his case under extremely difficult circumstances as a result of Mr Osuji's interruptions.

Often times, Mr Nderitu's submissions degenerated into arguments with the trial judges with the victims' lawyer visibly agitated by the interruptions.

But Mr Khan accused the prosecution of insisting on the sufficiency rather than the strength because the latter is lacking.

"No wonder they are asking for consideration of quantity rather than quality," said Mr Khan.

On his part, Katwa Kigen, Mr Sang's lawyer said the prosecution has not proved any case.

"Even taking the lowest standard of the prosecution case at its highest we are still able to show that there they have not made a case. It doesn't need to wait to the point of beyond reasonable doubt," he said.


In his submissions, Mr Nderitu had also asked the judges to consider the political context in which the accused used certain words.

According to Mr Nderitu's submission, the politics followed a tribal line and the alleged use of strong words as 'weeds' must be seen in that context.

"The standard of care (of those in position of authority) gets higher in a society where the people are more sensitive to issues. When used figuratively, 'weeds' become very easy to resonate with the people," he said.

Mr Steynberg and Mr Nderitu also rejected the defences' argument that Mr Ruto was not a leader of the Kalenjin.

According to Mr Steynberg, Mr Ruto was the senior most politician in the region and his influence, though not absolute, could not be underestimated.

The trial chamber will notify the parties in due course when the decision on the no case to answer motions, by which Mr Ruto and Mr Sang are seeking acquittal, will be made.


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