Two rulings will decide the fate of the case which Deputy President William Ruto is facing at the International Criminal Court.
The first will be on the no-case-to answer motion that starts Tuesday and the second will be on the appeal against the use of recanted evidence.
The rulings could make the difference between freedom for Mr Ruto and his co-accused, former radio journalist Joshua arap Sang, or the continuation of the case until 2017.
The later is likely to complicate Mr Ruto’s role in the 2017 election and make his case a campaign issue.
After the oral hearings which start Tuesday, the Trial Chamber judges Chile Eboe-Osuji (presiding judge), Olga Herrera Carbuccia and Robert Fremr will be retiring to decide whether or not he has a case to answer.
A favourable decision will see Mr Ruto and Mr Sang walk away as free men despite Prosecutor Fatou Bensouda having called 29 witnesses.
BENSOUDA FAILED TO SHOW EVIDENCE OF NETWORK
According to a University of Nairobi law lecturer, Dr Duncan Ojwang, Ms Bensouda has not established a case against Mr Ruto and Mr Sang.
According to him, she had failed to show that there was a network in the Rift Valley led by Mr Ruto that caused forced evictions and displacement of populations.
“The prosecutor has also failed to show organisational policy that worked on a plan to forcefully evict other communities from Rift Valley. They could not show that the violence was pursued as a policy and was not spontaneous and reactionary following the announcement of election results,” he said.
A decision that favours Ms Bensouda will mean that Mr Ruto and Mr Sang will be put to their defence.
If this happens, they will be required to call in their witnesses to respond to the prosecution’s theory that the violence was planned.
Going by past experience, a decision that does not favour Mr Ruto and Mr Sang will certainly see the case roll over to 2017, which is an election year.
This will make the case against the Deputy President a campaign issue as happened in 2013.
Besides the decision on the no-case-to-answer Motion, Mr Ruto and Mr Sang will also be waiting for the ICC Appeals Chamber to pronounce its judgment on whether Ms Bensouda can rely on prior recorded testimony under the Rule 68 of the ICC Rules of Procedure and Evidence.
In their appeals, the two had argued that the Trial Chamber erred when it admitted into evidence prior recorded testimony of five crucial witnesses who either withdrew or recanted their testimonies to the prosecution.
“The defence submits that a series of fundamental errors were made in the decision which, either individually or cumulatively, materially affect the decision,” Mr Ruto’s defence argued.
However, Ms Bensouda has argued that the hostile witnesses were either intimidated or bribed by people close to Mr Ruto to ensure that the case collapses. She argues that the recanted evidence formed the centre of her case.
If the Appeals Chamber rules to allow Ms Bensouda to use the recanted evidence, the case will likely assume fresh dimensions, with heavy odds against Mr Ruto. Should the judges agree with the defence lawyers, the case against Mr Ruto will be on shaky ground.
Meanwhile, Mr Sang on December 17 sought to have the statement of the 14th Assembly of States Parties (ASP) on amended rule 68 placed into the appeals record.
“Mr Joshua Sang respectfully submits that the ASP resolution is relevant to the matters presently under consideration by this chamber relating to the ambit and interpretation of amended Rule 68. Accordingly, Mr Joshua Sang respectfully places the ASP resolution into the record of the present appeal for consideration by the Appeals Chamber when assessing Mr Joshua Sang’s appeal,” his lawyer, Mr Katwa Kigen, told the court last month. Ms Bensouda opposed the request.
Kenya had fought to have the ASP include in its report that the amended rule 68 would not be used retroactively. The ASP approved Kenya’s requested language on the non-retroactive amended Rule 68 on using pre-recorded witnesses testimony.
KURIA RENEWS CLAIM ON FIXING OF THE DP
As Mr Ruto travels to the Netherlands tonight seeking to end the ICC case against him, controversial Gatundu South MP Moses Kuria on Sunday renewed his calls for those he has claimed fixed Mr Ruto to confess.
Mr Kuria, who made a surprise appearance at AIC Fellowship Church in the Deputy President’s Eldoret backyard, maintained that the crimes against humanity charges at the International Criminal Court were politically motivated. He expressed confidence that Mr Ruto would be cleared.
“It is good to pray but sometimes there is no need to overwork God for what we have control over. The ICC issue is pure politics and some people who are the ages of my mother and father are engaging in a conspiracy of silence,” said Mr Kuria.
The outspoken MP has previously named Cord leader Raila Odinga and Narc-Kenya leader Martha Karua as some of the people who procured false witnesses to fix the Deputy President, a claim the two have dismissed.