Saturday, February 21, 2015 Fatou Bensouda grip on William Ruto may be too tight for Jubilee

 
Deputy President William Ruto and his defence team at The Hague. So far, 29 witnesses have testified against Mr Ruto and former radio journalist Joshua Sang, and only one remains to conclude the prosecution’s case. FILE PHOTO |  ICC


By WALTER MENYA
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In Summary

• Bid to have the trial stopped gained urgency after prosecutor withdrew charges against President Kenyatta.

Efforts by Jubilee politicians to extricate Deputy President William Ruto from the International Criminal Court (ICC) could come a cropper because of the strides made by Prosecutor Fatou Bensouda in the case, legal experts say.

The experts told the Sunday Nation that Mr Ruto’s fate rests squarely with the ICC judges, and neither the uproar by Kenyan politicians nor the African Union can help.

“Legally, a case in court can only be resolved using judicial ways. I am not sure non-judicial ways are going to be effective,” said George Kegoro, executive director of the Kenyan Section of the International Commission of Jurists.

Mr Ruto is charged together with former radio journalist Joshua Sang with crimes against humanity for their alleged key roles in perpetrating the 2007/08 post-election violence.

The trial is scheduled to resume tomorrow in The Hague before ICC judges Chile Eboe Osuji, Olga Herrera and Robert Fremr, with the last prosecution witness 727 testifying via video link.

The judges on February 17 directed the government of the country where the witness was relocated “to facilitate, by way of compulsory measures as necessary, the appearance of witness 727 for testimony by video-link before the Chamber”.

GAINED URGENCY

The government’s push to have the case against Mr Ruto dropped has gained urgency after Ms Bensouda withdrew charges against President Uhuru Kenyatta.

While welcoming the withdrawal of charges against President Kenyatta on December 5, 2014, Foreign Secretary Amina Mohammed had said the government would pursue ways to have the ICC drop the charges against Mr Ruto and Mr Sang “with the same energy and passion”.

“At The Hague, the prosecutor has dismissed the charges (against President Kenyatta). We are not done yet; we will pursue the dropping of charges of the other cases,” she said.

Kenya then went to the ICC’s Assembly of State Parties (ASP) in New York seeking to have its proposed amendments discussed.

A key plank of the amendments to the Rome Statute was to grant immunity to sitting heads of state and senior officials in government.

The effort failed, with criticism that the executive appeared less committed in its lobbying at the ASP after President Kenyatta’s case was withdrawn.

Then came the lobbying at the 24th African Union Summit in Addis Ababa where Kenya was seeking to have at least 14 other countries sign the Malabo Protocol on the establishment of an African Court of Justice and Human Rights.

That did not yield tangible results either, and the Kenyan delegation came back more or less empty handed. The matter could take centre stage again at the June AU summit in South Africa.

PACIFY RUTO

The proposed amendments to the Rome Statute and the AU lobbying have largely been seen as efforts by the TNA wing of the Jubilee administration to pacify Mr Ruto and his Rift Valley political constituency.

However, “unfixing” the Deputy President is a tall order, given the progress the ICC prosecutor has made so far in the case. Ms Bensouda is left with just a single witness to conclude her case.

So far, 29 witnesses have testified against Mr Ruto and Mr Sang. Once witness 727 testifies, the prosecution will give way to the defence to either file a no-case-to-answer motion, or if that is denied, to begin calling their witnesses.

“They can’t get anywhere. The court process has kicked in, and one would recall that the appellate chamber of the ICC had determined that the only way the case could be dropped was if a similar case was taking place in the national courts. That isn’t the case,” said Mr Mokaya Orina, a public international law expert.

Mr Orina further said the diplomatic and political agitation by Kenya and the AU outside the ICC will have no impact on the case.

“Amending the Rome Statute is a long shot. I don’t understand why anyone would think of it. The African court also can’t help, even if it was established today, because it is not complementary to the ICC,” he explained.  

According to Article 127 of the Rome Statute, not even the motion of Bumula MP Boniface Otsiula for withdrawal of Kenya from the ICC can help Mr Ruto in his case.

Jumping the ICC summons, based on such a motion, could land him in trouble as the judges could lift his conditional excusal from being present during the trial and even issue arrest warrants.

Article 127 of the Statute states: “A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations accrued.”

In any case, a withdrawal from the Rome Statute is not instantaneous; it can only take effect one year after the date of receipt of the notification.

Mr Otsiula told the Sunday Nation that the motion he has drafted was not meant to save any particular individual “but for posterity”.

Nandi Senator Stephen Sang recently demanded that the Waki report on the post-election violence, sections of which have been admitted as evidence against Mr Ruto, be brought to Parliament to be “scrutinised”.

“The report has many grey areas and the Waki team had very limited time to compile it. It is, therefore, grossly misleading,” Mr Sang said.

He said the defence lawyers, as a way of countering the prosecution’s allegations, could benefit from the inconsistencies that could have been raised in Parliament.