Gicheru case: Is Ruto in ICC danger once again?

When Kenyan lawyer Paul Gicheru surrendered at The Hague on November 2, 2020 the move took many—including his lawyers— by surprise. The prosecution’s final paper says on the day he was interviewed by the Prosecutor, Mr Gicheru was “nervous, evasive, and failed to maintain eye contact. He was looking around while speaking or taking long pauses before responding to questions”.

Today, focus will be on the prosecution as it closes a case that could determine the fate of Deputy President William Ruto, regarded by the prosecution as the beneficiary of the common scheme that included bribery and intimidation.

By using phone voice recordings of Mr Gicheru seducing witnesses, bank records and oral testimony, the ICC prosecutors think they have finally found one of the men who derailed the Ruto case at The Hague by corrupting witnesses.

Also Read: ICC prosecutors close case against lawyer Paul Gicheru

But whether the DP is in danger of being summoned again by the ICC will be known after the Gicheru case.

Cases dismissed

Following the post-election violence of 2007/8 in which about 1,200 people were killed, Mr Ruto was accused of murder, deportation and persecution. The separate case against President Kenyatta was dismissed for lack of evidence.

Mr Kenyatta was charged with crimes against humanity, of murder, deportation or forcible transfer, rape and other forms of sexual violence, other inhumane acts and persecution. He was charged as indirect co-perpetrator. His charges were, however, withdrawn in 2014 due to insufficient evidence.

However, Mr Ruto was set free on April 5, 2016 after many key prosecution witnesses either dropped or changed their original statements.

In the case, Judge Eboe-Osuji (the presiding judge) and Judge Robert Fremr were in the majority and agreed that the evidence presented in the prosecution case was weak and that the case should be terminated as a result; but that a judgment of acquittal should not be entered. Judge Herrera Carbuccia delivered a dissenting opinion.

The then ICC prosecutor Fatou Bensouda acknowledged that the loss of witnesses weakened the case and that this was the result of interference by members of a common scheme.

Members of the scheme

Prosecution has named the members of this scheme to have included Mr Ruto, as the beneficiary, while Mr Gicheru, Mr Silas Simatwo and Mr Isaac Maiyo were the managers. While Mr Simatwo was a director of the Ruto-owned Amaco Insurance, Mr Maiyo was the chairman of Eldoret North Constituency Development Fund. The intermediaries between the managers and prosecution witnesses were Mr Meshack Yebei, who was later kidnapped and killed, journalist Walter Barasa, and Mr Phillip Bett. The work of the intermediaries was to “convey threats of adverse consequences” and “negotiate the amount and terms of bribes”.

The prosecution had initially sought a warrant for Yebei’s arrest, but withdrew its request after the former human rights worker was killed and 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. With Mr Barasa having a warrant issued on August 2, 2013, it means that the only three members of the scheme—DP Ruto, Mr Simatwo and Mr Maiyo—have no warrants of arrest.

From his Veecam House office in Eldoret town, Mr Gicheru is said to have directed the activities of these intermediaries “leveraging his influence as a prominent member of the community and the legal profession to advance the aims of the Common Plan.”

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”.

The prosecution will be submitting today 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” and induced them to make false assertions that undermined the prosecution’s case against the Ruto-Sang duo.

Whether the ICC will issue warrants on the remaining members of the common scheme—Maiyo, Ruto and Simatwo—will depend on the outcome of the Gicheru case. The prosecution says that Mr Simatwo and Mr Maiyo “made essential contributions to the charged offences” and worked “with Gicheru to coordinate with Ruto. They also participated in meetings between Mr Gicheru and prosecution witnesses during which they were corruptly influenced”.

Co-perpetrators

However, it wants two associates of the common plan, Mr Elisha Busienei, former Turbo MP, and Mr Sammy Kosgei, charged as co-perpetrators.

Interestingly, Mr Gicheru, who is charged with eight counts of offences against the administration of justice, has opted not to present any oral testimony and will rely on documents disclosed by the prosecution to extricate him from the ICC jaws. It is not clear why Mr Gicheru’s defence failed to call any witnesses. The prosecutor says that the defence “instead advances speculative theories based on inferences it seeks to draw from the prosecution’s own evidence”.

Today, the prosecution will be relying on in-court testimony of eight witnesses and will be asking the chamber to assess the credibility and reliability of the evidence holistically rather than “adopt a piecemeal approach”.

Also Read: Paul Gicheru won't defend bribery case, lawyer tells ICC judges

“Individual items of evidence, such as the testimony of different witnesses or documents, must be analysed in light of the entire body of evidence, even if they, when seen in isolation, are open to different interpretations,” says the prosecution in its final document.

The prosecution will today (Monday) argue that the individual items of evidence 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”.

Testimony of witnesses

The prosecution will also be asking to consider the testimony of witnesses who had previously recanted their evidence “due to corrupt influence”.

“The chamber should also distinguish between actions and statements made while the witnesses were under the corrupt influence of the perpetrators, and the statements and testimony given once that influence has been removed,” says the prosecution.

Mr Gicheru is said to have targeted several witnesses. “Of these witnesses, 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.” 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”.

The prosecution will ask the court to accept the banking statements by P-0397 and P-0341 as “authentic and reliable payments” since the defence did “not dispute the authenticity or reliability of this material at the time of its submission.” More so, P-0341’s banking statement is confirmed by the bank while P-0397’s records were retrieved from SMS message alerts retrieved from his phone records.

Dealings with P-0397

Mr Gicheru had during a recorded interview admitted to having dealings with P-0397 at the “time of bribery schemes”. But since Mr Gicheru was not subjected to questioning under oath, the court will be asked to reject the any “uncorroborated and self-serving” aspects of his interview.

At first, during the interview, Mr Gicheru had denied having known both P-0397 and Yebei, and only admitted this after he was confronted with the recording of the phone call between him and P-0397. He had also in 2018 denied knowing Mr Maiyo, “either personally or professionally”. The prosecution retrieved call data from Mr Gicheru’s phone with a number saved as ‘Maiyo CDF’.

The prosecution will also argue that Mr Gicheru had taken steps to avoid detection and which included refusing to record the agreements with corrupted witnesses and paying them in cash only to avoid bank records. Other payments were made by third parties. He also ensured that “lead counsel for Ruto was not aware of the activities of the Common Plan members”. Ruto’s lead counsel, Karim Khan, is now the ICC prosecutor.

In one incident, Mr Gicheru is alleged to have offered Sh5 million to P-0397 in cash instalments in exchange to withdraw as a prosecution witness and cease cooperating with 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”.

‘Act like brokers’

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 help Ruto.

“Gicheru told P-0397 that Ruto wanted P-0397 to identify other prosecution witnesses and bring them to him (Gicheru),” say 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,” the prosecutor says.

Upon signing the affidavit, now in court, P-0397 received Sh600,000. Mr Gicheru asked the witness not to deposit the money in the bank “to avoid detection by the ICC people” and gave the witness his business card.

This card was later handed over to ICC. Mr Gicheru paid some Sh400,000 on April 30, 2013. Further, Mr Gicheru and Mr Yebei induced P-0397 to influence witness P-0516. At his first meeting with Mr Gicheru [he] gave P-0516 “between Sh500,000 and 800,000”.

‘Threatened’ by Gicheru

When P-0397 asked for his balance, the prosecution says that he was “threatened” by Mr Gicheru. According to the prosecution, Mr Gicheru “accused P-0397 of still being in touch with the ICC. He became aggressive; indicating that he believed P-0397 was trying to have Ruto arrested by the ICC. As a result of this exchange, P-0397 felt that he was in danger and could be killed”.

Mr Gicheru is alleged to have told him: “Can the white people really save someone, or?” This is captured in a recording.

P-0397, according to the prosecution, was later abducted.

From the prosecution records, it appears that Mr Gicheru and Yebei were deeply involved in the scheme—by identifying and bribing witnesses.

In the summary of the case, the prosecutor says the evidence “clearly establishes that Gicheru, jointly with (name redacted) and assisted by P-0800, approached and corrupted P-0495 as part of the Common Plan” and should be treated as a perpetrator.

As the case comes to an end, more eyes will be on Ruto’s—rather than on Gicheru’s—fate.

[email protected] @johnkamau1