Kenya: Lawyer's Surrender Opens ICC Can of Worms for Ruto

William Ruto, Henry Kiprono Kosgey and Joshua Arap Sang appear before the ICC (file photo).
3 November 2020

The surrender of Kenyan lawyer Paul Gicheru to the International Criminal Court (ICC) Monday has opened a new window that could see Deputy President William Ruto's case revived at the Hague-based court.

The advocate, who is accused of corruptly influencing witnesses who were to give evidence against DP Ruto at the ICC, could, if found guilty, provide fresh links between the DP and the 2007/08 post-election violence that caused the deaths of more than 1,200 people and displacement of hundreds of thousands.

Mr Gicheru, whose warrant of arrest was issued in March 2015, faces a maximum of five months in prison, or a fine, or both, if found guilty.

"In the (DP) Ruto and (Joshua Arap) Sang case, the court found that there was interference of witnesses. What will need to be determined now is the extent to which that interference was if a case against the DP is to be restarted, it will follow the same procedure of the other case: Witnesses have to come out to record statements that they were enticed and give evidence of what happened in the 2007/08 post-election violence, and then what happened when they are said to have been enticed," said the common legal representative of victims in the DP Ruto and journalist Sang case, Mr Wilfred Nderitu, in an interview on Monday.

He added that there is a possibility of the DP's case, which was vacated in 2016, being started afresh; with a new confirmation of charges hearing if the evidence by the lawyer points to culpability of any of the two accused.

Mr Gicheru has been accused jointly with Philip Kipkoech Bett.

"There has existed, from at least April 2013, a criminal scheme designed to systematically approach and corruptly influence witnesses of the prosecutor through bribery and other methods of inducements in exchange for their withdrawal as prosecution witnesses and/or recantation of their prior statements to the prosecutor," the ICC said in March 2015 when it issued a warrant of arrest against Mr Gicheru and Mr Bett.

The evidence, the ICC says, showed that the scheme "has been run in an organised manner and with a clear distribution of tasks."

"In particular, Paul Gicheru has been a manager and coordinator of the scheme, meaning that he has finalised agreements with corrupted witnesses, organised the formalisation of their withdrawal and handled the payments. The role of Philip Kipkoech Bett has been to contact the witnesses, at least some of whom they knew previously, and to make initial proposals before bringing them to the managers, particularly Paul Gicheru," the ICC said.

In issuing the warrants, the ICC also fingered journalist Walter Barasa, for whom a warrant was issued by the ICC in August 2013, for playing "a similar role within the same scheme."

On its own, Mr Nderitu explained, Mr Gicheru's surrender might not mean much on the status of the Ruto case at the ICC, but if found guilty of witness interference, then the Kenyan lawyer now in the hands of the Dutch authorities waiting to be handed over to the Hague court may be used as a witness in the DP Ruto and Sang case.

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"A plea bargain (in the Gicheru case) is possible. Ordinarily, the interest of the court will be for him (Gicheru) to be useful for the main case (Ruto/Sang), for showing the witness interference and so on," Mr Nderitu told the Nation in an extensive phone interview Monday.

The next course of action is likely to be an "initial court appearance" by Mr Gicheru, while the full trial is likely to deal with issues of witnesses intimidation as well as disappearance of those who were lined up to appear at the ICC in the DP Ruto case.

Careful not to overstate the ICC's reach, Mr Nderitu warned that in the end, the Hague-based court depends on the political goodwill of member States, and, therefore, makes it difficult to prosecute cases where the accused hold political office -- as is the case with the DP who currently ranks as the country's second-in-command.

Political goodwill is necessary, Mr Nderitu said, because the summoning and processing of witnesses, issuance of passports, their travel arrangements and other related logistics "operate within a political environment".

"The ICC draws legitimacy and operationalisation from what the government of the day is going to do. If they are dealing with just an ordinary citizen, it is easy to be charged and for the matter to go the whole hog. But if you are talking about someone in power and at that level, and that political goodwill is not forthcoming, then the court is completely shackled," said Mr Nderitu.

The culmination of a five-year battle with the ICC and the Kenyan authorities, including a November 2017 ruling by High Court Judge Luka Kimaru quashing a local warrant of arrest by Kenyan authorities to hand Mr Gicheru and Mr Bett to the ICC, the surrender by Mr Gicheru baffles many as he was not under any pressure to surrender. Additionally, he had a valid High Court order protecting him from arrest in Kenya for onward transmission to the Hague court.

"The minute the High Court invalidated the Kenyan warrant of arrest, by all intents and purposes, Gicheru and Bett were free men," Mr Nderitu, the victims' lawyer, explained.

The cases against DP Ruto and Mr Sang were vacated in April 2016 after the prosecution applied for their acquittal citing a weak case against the accused.

And while the prosecution had called for acquittal of DP Ruto and Mr Sang, the court refused to grant acquittal, saying while indeed the prosecution's case was weak, there was not enough evidence to acquit the two.

The court reasoned that because there was evidence which suggested that witnesses had been interfered with and because there had been political interference in a manner that was likely to have intimidated witnesses, the case should be declared a mistrial, leaving the possibility for a future prosecution.

DP Ruto's Director of Communication Emmanuel Talam on Monday declined to link Mr Gicheru's surrender to what he had said was a scheme to revive the case against the DP "for selfish political gain".

"I have no idea if there is any relationship between the scheme to revive the deputy president's case at the ICC and the surrender of Mr Gicheru," Mr Talam told the Nation in a text message response.

"I do not know how deep the scheme is. How do I know? It is the schemers who can tell the magnitude of the scheme."

Mr Talam had last week told the Nation in a separate interview that his boss was aware of a scheme, one the DP himself had addressed in a TV interview early this year, to revive the ICC cases against Kenya's second-in-command.

"The DP is aware about the plot to revive The Hague case for political reasons but is not bothered. It is a hopeless scheme to take the country back. Kenyans are wiser and can see through the schemes," said Mr Talam in the interview last week.

He added, "There are people who believe we should use tribes as a basis of our political conversation. They are the ones behind the scheme with the motive of igniting ethnic tension."

Jubilee Deputy Secretary-General Caleb Kositany, the de-facto Ruto camp political spokesman, said the Gicheru surrender was all part of a scheme that he said the Ruto team is ready to tackle.

"We have nothing to fear at all," the Soy MP declared Monday.

"We shall wait and see what happens in the Gicheru case. What we know is that we had been cleared and so we have nothing to fear. We never participated in the interference of any witnesses," Mr Kositany said, seemingly owning what was a Ruto case as part of a group.

Mr Gicheru is alleged to have bribed or attempted to bribe six prosecution witnesses, offering them each between Sh500,000 and Sh5 million, so that they could withdraw as witnesses.

The processing of Mr Gicheru by the Dutch authorities to be handed to the ICC may take between two to three days, after which a lawyer will be appointed for him once in the court's custody.

While Mr Gicheru can represent himself in court, with no precedent having yet been set, the procedure is usually for a duty counsel to be appointed to represent him, or for him to hire a different advocate.

While it is possible to arrange initial appearance in a week or so, Mr Nderitu, the victims' lawyer, says the absence of Mr Bett complicates the fast clearance of the case.

"Because they are cited in one case, it is expected that all accused persons are brought before the court at the same time. While it is possible to separate the cases, there is the consideration of the expenses that will be incurred considering that the accused persons will likely be dealing with the same witnesses," Mr Nderitu explained.

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