What you need to know:
- From coalition politics to state of the Ruto case, everything seems to be in a shambles.
- Experts engaged to determine what path Deputy President ought to take in light of court decision.
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.
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.
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.