The spectre of the ICC – again

The 2013 presidential elections fell victim to the International Criminal Court (ICC). The country was engulfed in an orgy of acrimony over the indictments for crimes against humanity of Jubilee presidential candidate Uhuru Kenyatta and his running mate William Ruto.

Some have argued Central Kenya and the Rift Valley were whipped into an emotional, if irrational, primordial frenzy to vote to a man to protect “their own” from a “colonial court”.

That’s water under the bridge now. Mr Kenyatta is putting a full stop on his last term at State House, while Mr Ruto seeks to open a stanza on his first.

The ICC is again menacingly swinging the sword of Damocles over Mr Ruto’s head. Can Mr Ruto escape the guillotine a second time?

In 2015, the ICC terminated the case against Mr Kenyatta. The language of the withdrawal of the charges suggested that the court was unlikely to revisit Mr Kenyatta’s case unless he acted in an egregious manner, such as interfering with a witness, or there was new evidence.

I interpreted this language to mean that Mr Kenyatta’s case was permanently closed, barring extraordinary circumstances. In 2016, Mr Ruto’s was also withdrawn but with a strong caveat.

The ICC terminated the case without prejudice to re-prosecution in the future. The court pointedly ruled that the termination didn’t amount to an “acquittal” but only the “vacation of the charges and discharge of the accused”. This means the case is live but in limbo.

Adduce new evidence

Unlike Mr Kenyatta’s, Mr Ruto’s ICC case can be resuscitated any time. The prosecutor has only to adduce new evidence to revive the case, or seek new charges.

That’s why I wouldn’t sleep easy if my name was Samoei arap Ruto, the same person who’s the Deputy President of Kenya, and who’s trying to succeed Mr Kenyatta.

Mr Ruto must sleep with one eye open. He may even be sleeping with both eyes open because of the tribulations of lawyer Paul Gicheru at the ICC. Mr Gicheru, after being sought in futility by the ICC for years over the corruption of witnesses, shocked the bejesus out of everyone when he appeared at The Hague and voluntarily surrendered to the court.

Mr Gicheru’s act of legal self-immolation was completely unprovoked – and flummoxing.

Rational people, no matter how law-abiding, don’t willingly take themselves to the slaughterhouse.

But perhaps I should credit Mr Gicheru with a conscience of which most people are bereft. Maybe he’s a rare breed, or maybe there’s more than meets the eye.

Specifically, Mr Gicheru is accused of very dastardly and repugnant crimes against what the ICC Statute calls “offences against the administration of justice”. To wit, corruptly influencing witnesses through bribery, intimidation and even much worse.

If convicted, Mr Gicheru would face a serious jail term. Perhaps Mr Gicheru simply wants to face his demons, exorcise them and close that sadly malignant chapter of his life.

Mr Ruto is in a bit of legal hot soup. Mr Kenyatta’s case collapsed because of insufficient evidence. But Mr Ruto’s was terminated because of witness interference and political meddling.

I emphasise this distinction because the prosecutor alleges that evidence against Mr Gicheru “establishes that the lawyer and associated persons engaged in a concerted effort to identify, locate and contact witnesses to recant their evidence”.

The prosecutor alleges, further, that Mr Gicheru said that Mr Ruto “wanted no stone left unturned” in uncovering every witness to corrupt, or stop, them from testifying against him.

He concludes that the “evidence establishes that the pattern of witness interference was conducted for the benefit of, and in coordination with, William Samoei Ruto”.

In a word, Mr Ruto is in the direct crosshairs of the ICC. He could be indicted any time because of new evidence and, or, testimony of Mr Gicheru.

Million-dollar question

This is the million-dollar question. Why would Mr Gicheru turn himself in to take the bullet, no pun intended, all by his lonesome? He’s playing Russian roulette. He most likely will be convicted.

Can he save himself by turning evidence against Mr Ruto, or will he throw himself at the mercy of the court for a lesser sentence by turning on Mr Ruto?

I see no scenario which would give Mr Ruto comfort. His fate lies squarely in the hands of Mr Gicheru. Will Mr Gicheru slay Mr Ruto?

Question – whether, how and when will the Gicheru ICC case impact Mr Ruto’s drive for State House?

In 2013, the combined emotion and manipulation of the ethnic psychology drove Central Kenya and the Rift Valley to the polls. The key was that Mr Kenyatta and Mr Ruto weren’t barred from running. Would Mr Ruto be barred from running if the ICC indicted him – again?

Secondly, if he wasn’t barred, could he gin up the same sympathy that he, and Mr Kenyatta, marshalled from the ethnic duopoly? Or would he be met with opprobrium from Central Kenya given his calamitous falling out with Mr Kenyatta? Get your popcorn, amigos.

Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School. He’s chair of KHRC. @makaumutua