Kenya: Ruto and Sang Cases Still Alive - Bensouda

Initial appearance of William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang before the ICC (file photo).
4 December 2020

International Criminal Court (ICC) Chief Prosecutor Fatou Bensouda has said The Hague-based court is open to receive fresh information relating to Deputy President William Ruto and radio host Joshua arap Sang cases.

Dr Ruto was among six individuals charged and deemed to bear the greatest responsibility for crimes against humanity perpetrated in the 2007/2008 post-election violence.

The cases against the DP and Mr Sang were vacated in April 2016 after the prosecution applied for their acquittal, citing paucity of evidence.

The judges, however, cited political interference as one of the reasons for vacating the charges.

"The proceedings are declared a mistrial due to a troubling incidence of witness interference and intolerable political meddling," read part of the ruling.

However, they said the decision did not preclude future prosecution at the ICC or in a national jurisdiction.

And whereas the Directorate of Criminal Investigations (DCI) has clarified it will not reopen the post-election violence cases, Ms Bensouda told the Nation that since the cases against the duo were not terminated, her office is ready for any fresh information from either the government of Kenya or any individual.

"As you are aware, on April 5, 2016, Trial Chamber V (A) vacated the charges against William Samuel Ruto and Joshua Arap Sang, without prejudice to the Prosecution bringing a new case in the future, or in a different form, in light of new evidence," she said.

"As a general matter, in accordance with Art. 15 of the Rome Statute - the founding treaty of the ICC - any individual or group from anywhere in the world may send information on alleged crimes to the ICC Prosecutor, who is duty-bound to protect the confidentiality of the information received. The office analyses any such materials submitted, as appropriate, in accordance with the Rome Statute and with full independence and impartiality," Ms Bensouda said in an email to the Nation.

Legal experts have argued that fresh investigations could unravel issues that may see the duo's cases reopened.

The victims' legal representative in the Ruto and Sang cases, Mr Wilfred Nderitu, said fresh investigations may unearth persons to be tried locally, but who could double up as witnesses in the ICC case against the duo.

"To that extent, I would say those are two different processes, although there is a possibility that investigations may unearth persons who could even be tried locally but could be of concern as witnesses at ICC," said Mr Nderitu in an interview.

He added that Dr Ruto and Mr Sang's cases could be started afresh - with a new confirmation of charges hearing - if evidence from local investigations points to culpability of any of the two accused.

Mr Nderitu clarified that new issues would not necessarily mean that Dr Ruto and Mr Sang will be found guilty.

In an interview with the Nation, lawyer Katwa Kigen said the case at the ICC was that the people charged did not plan, nor organise nor support the violence hence they have nothing to fear.

President Uhuru Kenyatta and his deputy have criticised the DCI over a move to revive criminal cases related to the 2007/08 post-election violence. The President warned the move would be a recipe for ethnic conflicts.

In a clear dig at DCI boss George Kinoti, the President said the decision to reopen the cases was taken without proper thinking on the reality and declared he would not support it.

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