Deputy President William Ruto is received by his lawyer Karim Khan in The Hague in this file picture. FILE PHOTO | DPPS
Senior members of the Jubilee administration and a number of Deputy President William Ruto’s advisers have held multiple crisis meetings in response to the massive blow dealt to his case at the International Criminal Court (ICC) that would allow evidence from witnesses who refused to testify or recanted their evidence altogether.
At
least three meetings have been held since Wednesday night in the
backdrop of the sobering reality interpreted by lawyers that the case
had taken a sharp turn for the worse and that it would take longer to
break free from the stranglehold of The Hague court.
After
the judges released their decision, more than 40 Jubilee MPs called a
press conference on Thursday where they criticised the court and vowed
to stand by the Deputy President.
“Having thrown out
the case against President Uhuru Kenyatta, the strengthening of the case
against Mr Ruto, through a favourable ruling for the prosecution side,
is seen as a calculated move to weaken the coalition,” said Meru Senator
Kiraitu Murungi.
But beyond the public display of confidence, the Sunday Nation
has learnt that Mr Ruto has summoned his advisers to behind-the-scenes
strategy meetings to craft a legal and political plan to fight back what
they consider an “unfair decision”.
Interviews
with those in the loop revealed that it is out of one of the meetings
held at Mr Ruto’s Karen residence in Nairobi that the Thursday press
conference, headed by Leader of the Majority in the National Assembly
Aden Duale, was held.
LOBBY ASP
A leading figure in Mr Ruto’s camp told the Sunday Nation
in confidence that the purpose of the meetings is to “appropriately
respond to the court’s decision in a way that preserves the country’s
sovereignty”.
He hinted that some of the meetings have
been held at Mr Ruto’s offices in Harambee House Annex, his Karen
residence and other private locations in and outside Nairobi.
A
senior TNA lawmaker from central Kenya said they are keen to help
“remove the yoke of ICC from the DP’s neck lest we are accused of
abandoning him at his time of need.”
“You gauge the
value of your friends at your time of need. You will, therefore, see
more deliberate efforts to slay the ICC dragon,” the MP, who did not
wish to be named, said.
He indicated that among the
options was for Kenya to lobby the Assembly of State Parties (ASP) of
ICC to intervene. ASP President Sidiki Kaba held talks with President
Uhuru Kenyatta on cooperation at State House a week before the ruling
was made. Mr Kaba did not meet the deputy president and there were no
indications that the case was discussed.
The latest meetings bringing together TNA and URP politicians
were unlike secret meetings held by Mr Ruto’s allies after charges
against President Uhuru Kenyatta at the ICC were withdrawn last year
following concerns that the government would remove its foot from the
diplomatic pedal and leave the Deputy President exposed.
After
the press conference, the next phase is said to be getting experts to
punch holes into the ruling in the media. However, politicians will
continue labelling the court as pursuing a political agenda, while
diplomatic pressure through the African Union is also expected to start
afresh.
In case the defence decides to seek an appeal,
which appears more likely, the downside is that it will prolong the case
beyond 2016 and further interfere with political activities of Mr Ruto
ahead of the 2017 General Election.
In addition, an
appeal will put on hold any plans the defence had to request the court
to declare that the accused persons have no case to answer. An
unsuccessful appeal could also point to a similar ruling in the
no-case-to-answer motion.
From a legal standpoint,
public international law expert Mokaya Orina says that as much as the
decision remains controversial, it could be a setback for the defence
who will not be getting an opportunity to test the evidence through
cross-examination.
“The admission of the evidence at
this point is that it has some sign of reliability. The evidence can
also be used by the Chamber to fill in the gaps that may have been
there,” said Mr Mokaya.
In that case, he said, it will
be unlikely for a no-case-to-answer call to succeed unless the court
discovers some inconsistencies in the statements that would prevent them
from validating a criminal conviction.
'POORLY INVESTIGATED'
Mr Ruto’s lead defence counsel Karim Khan has led the chorus of condemnation of the decision that came out on Wednesday.
“The Rule 68 decision creates new law on the application of a new, controversial and previously unused rule,” Mr Khan told the Sunday Nation.
He
added: “Regardless of the decision on Rule 68, the essential
characteristics of the case remain largely the same, as far as I am
concerned. This is a case that has been poorly investigated and wrongly
focused from the start. I remain confident that the Trial Chamber will
be more than able to assess the veracity or otherwise of the case
against William Ruto at the appropriate time.”
The
majority decision of Trial Chamber V (A) on Wednesday allowed ICC
Prosecutor Fatou Bensouda’s request to use evidence witnesses had given
to the prosecution before disowning.
“The Chamber
considers that the admission of the prior recorded testimony of
[Redacted] pursuant to Rule 68(2)(d) of the Rules is in the interest of
justice. Further, the Chamber notes the element of systematicity of the
interference of several witnesses in this case which gives rise to the
impression of an attempt to methodically target witnesses of this case
in order to hamper the proceedings. The Chamber will not allow such
hindrance and will safeguard the integrity of the proceedings,” judges
Olga Carbuccia and Robert Fremr stated in the majority decision.
Presiding
judge Chile Eboe-Osuji gave a separate, partly concurring opinion “to
the effect that the out-of-court statements of [redacted] — should be
accepted and considered for the truth of their contents.” His major
point of divergence, however, was on the application of Rule 68.
Large
portions of the evidence that was admitted, Sunday Nation understands,
go to the heart of the case of a planned rather than spontaneous
violence in 2007/2008.
In her request, Ms Bensouda had
argued that the witnesses’ behaviour had “deprived (her) of a
significant portion of the incriminating evidence that it intended to
present to Trial Chamber V(A) (“Chamber”) in support of its charges.”
The
decision, therefore, is seen as a win for Ms Bensouda. According to the
executive director of International Centre for Policy and Conflict
Ndung’u Wainaina, the decision affirms ICC’s position that no amount of
interference in the administration of justice can deter truth seeking.
“The
decision is a clear demonstration of the court’s determination to put
an end to impunity for the perpetrators of the most serious crimes and
contribute to the prevention of such crimes,” he said.
Even
with the drawbacks, Mr Mokaya said, an appeal by Mr Ruto is a likely
option. “What I foresee is that the defence may want to get a final
determination on the matter from the Appeals Chamber,” said the expert.
Mr Khan is, however, playing his cards close to his chest regarding whether or not he will appeal.
“Whether
we seek leave to appeal or not will be revealed to the Trial Chamber
(and not) before any other party,” he said. In any case, he said the
Trial Chamber “repeatedly stated … that oft repeated allegations of
interference by William Ruto and/or the defence generally, remain
unproven.”
The allegations of interfering with witnesses, he added, remain vigorously contested by the defence as “absolutely false.”
Despite
the bravado of the defence lawyer, there is palpable panic about Mr
Ruto’s future place in the country’s politics. According to political
scientist Dr Joshua Kivuva, the decision means that he will have no
choice but to stick with President Kenyatta in 2017.
“Ruto knows very well that being a deputy president still gives him some power,” he said.
Mr
Ruto could also use the decision to play to the emotions of his Rift
Valley backyard, a section of which has been drifting from his grasp.
The
only challenge is that as long as the case remains, he will continue
playing a peripheral role in the country’s foreign relations. His trial
was a point of speculation when US President Barack Obama visited Kenya
last month
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