
Then Deputy President William Ruto (right) when he appeared at the International Criminal Court in the Hague in 2013.
Lightning, as African wisdom decrees, does not strike the same tree twice. Science does not agree.
The rising number of deaths in the wake of the abduction and disappearance of youth for their online activism has provoked some Kenyans to write to the International Criminal Court (ICC) seeking its intervention. History invites us to hold that thought. The last time the ICC was around, it was whipped like a stray mongrel.
During a private session in the early days of the William Ruto case at the ICC, then Prosecutor Luis Moreno Ocampo asked the judges to order his arrest — in the suspect’s hearing. Of all the six suspects, Ocampo considered Ruto to be the most dangerous.
“We had collected information alleging that Ruto was threatening the witnesses,” Ocampo writes in his book, War and Justice in the 21st Century: A Case Study on the International Criminal Court and its Interaction with the War on Terror.
The pre-trial chamber’s reaction was not what the prosecutor had expected: the judges asked him to disclose the information sources to Ruto’s lawyers. Looking across the aisle to where Kioko Kilukumi, David Hooper, and current Deputy President Kithure Kindiki were sitting, a row in front of their client, Ocampo backed down. “We refused, considering that such disclosure would put the sources in danger.”
Threats to potential witnesses
The pre-trial chamber declined to grant the prosecutor’s request, but once the session was back in open court, the judges pronounced themselves thus: “The bench would like to address the citizens of Kenya to respect the life, security and property of witnesses and victims of the two Kenya cases,” said Judge Ekaterina Trendafilova. She reminded Kenyans that the people who went to The Hague to testify were doing their “civil duty” and should not be threatened.
Had a warrant of arrest been issued against Ruto, it could have been implemented immediately — since he was in court, he would not have been permitted to leave.
The prosecution had striven to protect witnesses and their family members. It followed the same approach as the one employed in Darfur, where state officials were suspected to be part of those committing crimes, and conducted investigations from outside Kenya.
Prosecution counsel conducted 92 missions to 16 countries, but still received a lot of information about threats to potential witnesses. Requests to the Victim and Witness Unit, managed by the ICC registry, to relocate witnesses were not always acted upon promptly. It was a complicated process, and prosecutors had no authority to decide who should be protected.
Defence lawyers told the judges that they had no objection to the prosecution’s proposal to disclose the identity of anonymous witnesses under the court’s protection only 60 days to trial. They also said they would not object to the prosecution’s proposal to disclose only 30 days to trial the identity of witnesses who were not under the court’s protection, but whom the prosecution felt faced a security risk and therefore needed to remain anonymous. On the surface, it all looked kosher.
Surrendered to the ICC
Four years after the failed attempt to arrest Ruto, the case against him collapsed under the weight of what one ICC judge termed as “intolerable levels of witness interference and political meddling”. The full extent of the witness tampering would become apparent when the offences against the administration of justice opened. Warrants of arrest in respect of Paul Gicheru, Philip Bett and Walter Barasa were issued in March 2015—all in connection to the Ruto case. An application for a fourth warrant of arrest against Meshack Yebei was withdrawn after the prosecution confirmed that he had been killed and his body abandoned in a park.
Gicheru, who attended Kapsabet High School with Ruto, surrendered to the ICC in November 2022 after successfully avoiding extradition through legal craft. When his trial opened, the charges were straightforward: between April 2013 and May 2014 he had made offers to several prosecution witnesses totalling to Sh17 million as inducement for them to withdraw and recant their testimony. In the end, he allegedly paid out some Sh2.5 million and issued a tonne of threats. One witness could not be physically presented to testify or be cross-examined — most likely because he was dead.
According to the prosecution, Gicheru, together with Ruto confidant and now Digital Health Agency chairman Silas Simatwo, and Isaac Maiyo were the managers of the common plan to corrupt witnesses, while Yebei, Bett and Barasa were the intermediaries fishing for prospects and recruiting them.
Surprisingly, Gicheru and his lawyers elected not to call any witnesses and instead challenged the reliability of all those who had testified for the prosecution. The hearing had been concluded. As the parties were waiting for a decision, Gicheru died in September 2022. On October 14, 2022, Trial Chamber III terminated proceedings against him because the ICC does not try dead people.
The writer is a board member of the Kenya Human Rights Commission and writes in his individual capacity. @kwamchetsi [email protected]