Paul Gicheru’s death: What next in the Kenya case at the ICC?
What you need to know:
- Mr Gicheru was charged with interfering with ICC witnesses in the case in which Dr Ruto was charged with crimes against humanity following the 2007/2008 post-election violence.
- In December 2015, one of Mr Gicheru’s allies, Meshack Yebei, was abducted and killed. His body was later found in the Tsavo National Park.
- Mr Yebei was also implicated in efforts to corrupt witnesses in the case against Dr Ruto and his co-defendant, Joshua arap Sang.
The sudden death of Kenyan lawyer Paul Gicheru, while out on Sh1 million bond and as he waited for the ruling in his case at the International Criminal Court (ICC) has put President William Ruto’s regime in the international spotlight.
Gicheru, 52, was found dead at his Karen home on Monday evening. This means his case at The Hague is over since the ICC does convict or acquit the dead – as reasoned in the International Criminal Tribunal for the former Yugoslavia in the case against Slobodan Milosevic.
It also means that President Ruto, who was adversely mentioned during the Gicheru trial, is off the hook – for now.
Mr Gicheru, a former ally of the President, was charged with interfering with ICC witnesses in the case in which Dr Ruto was charged with crimes against humanity following the 2007/2008 post-election violence. His arrest warrant was unsealed on September 10, 2015.
However, though a Kenyan court had stopped his extradition, the lawyer surrendered to the Dutch authorities on November 2, 2020, surprising his friends and lawyers.
During his trial, which closed on June 27, 2022, Dr Ruto was adversely mentioned by the prosecution as the beneficiary of the “common scheme”, which included bribery and intimidation of witnesses.
Interestingly, Mr Gicheru, who was charged with eight counts of offences against the administration of justice, opted not to present any oral testimony during his case, and his lawyer relied on documents disclosed by the prosecution to extricate him from the jaws of the ICC. Even more intriguing is that Mr Gicheru’s defence failed to call any witnesses.
Mr Gicheru’s death is the second one among the members of the “common scheme”. In December 2015, one of Mr Gicheru’s allies, Meshack Yebei, was abducted and killed.
His body was later found in the Tsavo National Park. Mr Yebei was also implicated in efforts to corrupt witnesses in the case against Dr Ruto and his co-defendant, Joshua arap Sang.
Dr Ruto and former President Uhuru Kenyatta, before they joined hands to form the Jubilee government, had been brought together by fate after they were charged as the masterminds of the 2007/2008 post-election violence in which about 1,200 people were killed.
Dr Ruto, who was elected President on August 9, 2022, was accused of murder, deportation, and persecution. He was set free in 2016 after many key prosecution witnesses either dropped out or changed their original statements.
The then ICC Prosecutor, Fatou Bensouda, acknowledged that the loss of witnesses had weakened the case and that this was the result of interference by members of a common scheme who included Mr Gicheru.
The ICC prosecution had named the members of the scheme to have included Dr Ruto as the beneficiary, while Mr Gicheru, Silas Simatwo, and Isaac Maiyo were cited as the managers.
While Mr. Simatwo was the director of Dr Ruto’s Amaco Insurance company, Mr Maiyo was the chairman of the Eldoret North Constituency Development Fund. Dr Ruto once represented the constituency in Parliament.
The intermediaries, according to ICC, between the managers and the prosecution witnesses were Yebei, journalist Walter Barasa, and Phillip Bett.
According to ICC documents, the work of the intermediaries was to “convey threats of adverse consequences” and “negotiate the amount and terms of bribes”.
Both Barasa and Bett have a pending warrant for their arrest and it will be interesting to see how the ICC will proceed in seeking their handing over to The Hague. The prosecution said that Simatwo and Maiyo “made essential contributions to the charged offences” and worked “with Gicheru to coordinate with Ruto”. They also allegedly participated in meetings between Gicheru and prosecution witnesses during which they were corruptly influenced.
The prosecution had initially sought a warrant for Yebei’s arrest but withdrew its request after the former human rights worker was killed and his body dumped in Tsavo National Park by unknown people. On March 10, 2015, the court requested Kenya to surrender Mr Bett, who was Yebei’s childhood friend.
During the trial, it was claimed that Mr Gicheru used his Veecam House office in Eldoret town to seduce witnesses to drop out of the Ruto case.
He was also said to have directed the activities of the intermediaries by “leveraging his influence as a prominent member of the community” and using his “legal profession to advance the aims of the ‘common plan’”. According to the prosecution, Mr Gicheru met in person with some of the prosecution witnesses and acted as a “link between the funders and/or beneficiaries of the common plan, including Ruto, and the intermediaries and associates.”
As the case closed, the prosecution claimed that the accused “acted as the conduit for the payment of the bribes to the corrupted witnesses and arranged for corrupted witnesses to sign affidavits recording their decisions to withdraw as prosecution witnesses.”
Mr Gicheru was said to have induced them to make false assertions that undermined the prosecution’s case against Ruto and Sang.
The prosecution argued that the evidence against Mr Gicheru, when examined holistically, “reveal a clear and consistent pattern of criminality” where “Gicheru conspired with other members and associates of the common plan to locate, contact, and corruptly influence witnesses and potential witnesses in the Ruto and Sang case to withdraw and/or recant their evidence and cease all cooperation with the court.”
It was the prosecution’s case that Mr Gicheru targeted several witnesses.
The prosecutor said that “all but P-0613 and P-0738 accepted the bribes offered and received payments of varying amounts. In return, they cooperated with the perpetrators, including by signing affidavits containing false statements.”
It was also alleged that some of the corrupted witnesses “went further and acted in furtherance of the common plan by in turn corruptly influencing other witnesses.”
According to the prosecution, “P-0800 and P-0397 candidly admitted their roles in furthering the ends of the common plan members”.
Finally, the prosecution asked the court to accept the banking statements by P-0397 and P-0341 as “authentic and reliable payments” since the prosecution did “not dispute the authenticity or reliability of this material at the time of its submission.”
In one incident, Mr Gicheru is alleged to have offered Sh5 million to P-0397 in cash instalments in exchange for his withdrawing as a prosecution witness and ceasing to cooperate with the ICC.
This happened after the identity of the witnesses in the Ruto case were disclosed to the Ruto and Sang defence. An unnamed person is alleged to have approached P-0397 and told him: “There was a group of persons working for Ruto who were instructed to identify ICC witnesses and offer them bribery payments in exchange for their withdrawal as prosecution witnesses.”
P-0397 explained in a later interview with the prosecution that those who approached him “act like brokers; they identify witnesses and tell (them) they facilitate by giving of money, and then they also receive their own remuneration.” In April 2013, this witness was taken to Mr Gicheru, who asked him to assist Dr Ruto.
“Gicheru told P-0397 that Ruto wanted P-0397 to identify other prosecution witnesses and bring them to him (Gicheru),” says the prosecution papers. Initially, the witness requested Sh10 million.
“Gicheru explained that (unnamed person) must be consulted concerning money and the amount to be paid to witnesses, and that Ruto had given him the authority to pay witnesses. Gicheru told (the unnamed person) that P-0397 was a witness and must be paid. After some negotiation, they agreed on a sum of Sh5 million in cash,” said the prosecutor.
Mr Gicheru had, during a recorded interview, admitted to having dealings with P-0397 at the “time of bribery schemes.” But since Gicheru was not subjected to questioning under oath, the court was asked to reject any “uncorroborated and self-serving” aspects of his interview.
At first, during the interview, Mr Gicheru denied having known both P-0397 and Yebei and only admitted the offence after he was confronted with the phone recording of the conversation between him and P-0397. He also had, in 2018, denied knowing Mr Maiyo, “either personally or professionally.” The prosecution later retrieved call data from Mr Gicheru’s phone with a number saved as “Maiyo CDF”
With the death of Mr Gicheru, it will be interesting to see how the ICC will handle the Kenya case – and protect its witnesses. It is also complicated since Dr Ruto, who was adversely mentioned, is now the President