Ruto's lawyer, Shyamala Alagendra, reveals how Bensouda's case collapsed

What you need to know:

  • That the prosecution’s case collapsed at halftime should come as no surprise. 

  • Although we were confronted with the absence of a precedent on which to hook our request for dismissal, we were confident the judges would agree with us. 
  • For lead counsel Karim Khan, in his more than 20 years of international practice this was the first time he ever felt it necessary to make such a request to an international tribunal. 

  • From the law and justice perspective, the ICC verdict was not all about doom and gloom.

The April 5 decision by the majority of the International Criminal Court’s Trial Chamber in the William Ruto and Joshua arap Sang case is unprecedented.

This is the first time, in any international court, that a prosecution’s case has been dismissed without a defence being called.

There have been many acquittals and several cases which have not gone past the confirmation stage at the ICC but to have a case thrown out without calling for the defence, after so many witnesses have testified and their evidence tested, is a first. 

That the prosecution’s case collapsed at halftime should come as no surprise. 

Although we, the lawyers, were confronted with the absence of a precedent on which to hook our request for dismissal, we were confident the judges would agree with us. 

For lead counsel Karim Khan, in his more than 20 years of international practice this was the first time he ever felt it necessary to make such a request to an international tribunal. 

Long before the verdict, and long before the trial even commenced, on January 27, 2012 on Capital Talk, Senator Hassan Omar (who was a commissioner of the Kenya National Commission for Human Rights that authored the report on the post-election violence which was relied upon by the Waki Commission and the ICC Prosecution) described some of the core allegations by the ICC prosecutor as “outrageous”, and again on September 8, 2014 on The Way It Is he maintained that the case against Mr William Ruto was “quite wild”.

By its decision of April 5, the judges tamed the wild horse and put an end to its misery. 

'WEAK EVIDENCE'

From the law and justice perspective, the ICC verdict was not all about doom and gloom. 

I can see why it “spells doom” for the Kenyan Opposition, but for justice and the credibility of the ICC as an institution, it is a verdict which we must applaud. 

Let’s turn down the volume on witness interference and political hullabaloo and turn up the sound on what actually happened in the case against Mr Ruto. 

At the close of her case, the prosecutor was confident that “even without the Rule 68 statements the prosecution has led sufficient evidence, upon which ... a reasonable Trial Chamber could convict the accused on at least one of the relevant modes of liability. As such the (Defence’s no case to answer) motions would fail, irrespective of the outcome of that appeal.”

However, 938 days, 29 witnesses and 6,518 pages of prosecution documentary evidence later, the majority of the ICC Trial Chamber found that the charge against Mr Ruto “has been apparently weak” and that it could not be upheld by a reasonable Trial Chamber and that Mrm Ruto had no case to answer.

We must look at the Trial Chamber’s assessment of the prosecution’s evidence.

Judge Eboe-Osuji had undertaken that “extra-judicial conducts, campaigns or demands could not influence the Chamber to acquit or convict the accused. Any such decision would be driven solely by the Chamber’s assessment of the evidence presented in this case and the dictates of the applicable legal principles.

Nothing else could influence the Chamber’s decisions.” It is on this basis, that the two judges found that the prosecutor has not made out a case for Mr Ruto to answer.

Let’s look at the calibre of the prosecution witnesses who testified. 

These witnesses who did testify to script were described by the majority of the Trial Chamber in terms that oblige those who believe in the mandate of the ICC to take the Office the Prosecutor (OTP) to task for such a grave error of judgment and display of incompetence. 

WITNESSES

About Prosecution Witness P-800, Judge Fremr said he had “serious questions regarding Witness 800’s trustworthiness.

He has demonstrated a willingness to lie in return for personal gain and induce others to lie as well, apparently without concern for the significant implications of such dishonesty.”

Some of the things he testified about, the two judges found “highly implausible”. 

The evidence of another vital witness (P-356), in Judge Fremr’s view, even when taken at its highest, would not be evidence upon which a reasonable Trial Chamber could convict.

And in his view, “a reasonable trier of fact would be well-advised to use this evidence with extreme caution.

P-356 was presented as central to allegations that Mr Ruto and the so-called “network” participated in the acquisition of firearms. Paragraphs 55 to 61 of Judge Fremr’s decision surgically examine his testimony.

The learned judge’s finding (accepted by the second judge) was: “With respect to the alleged acquisition of guns, Witness 356 repeatedly changed his testimony about significant aspects of his story…

Other than claiming to have been confused or to have made mistakes when giving different versions of events to prosecution investigators and local NGOs, Witness 356 was not able to provide a convincing explanation for these discrepancies.

It should be further noted that Witness 356 appears to have been deceitful in some of his dealings with the prosecution.” 

For another prosecution witness, 658 — at paragraph 53 the judges found that “during the investigation, he told the prosecution that he attended two events during which incriminating things happened.

However, during his testimony before the chamber, the witness admitted that this was not true.

Instead, he claimed to have obtained the relevant information from another source... He tried to purposely deceive the prosecution, for which no acceptable reason was provided”.

The majority of judges also found the testimony of Witness 613 on core allegations to be nothing more than “mere speculation” and “based on hearsay (and potentially double hearsay)”.

They also found that no reasonable chamber could rely on the evidence of P-613 as proof of the allegations. 

Let’s now sample some of the findings of the majority of the judges concerning the prosecutor’s allegations.

ALLEGED NETWORK

The entire premise of the prosecutor’s case was a “network” allegedly headed by Mr Ruto.

The judges held that “the prosecution hardly identified any concrete evidence showing the existence of either the network or the common plan.

Instead, the alleged existence of the network — a central component of the prosecution’s case — is largely based upon circumstantial evidence”. A failure by the prosecution, it had nothing to do with witness interference. 

Next, the prosecutor’s case that Mr Ruto acquired and distributed firearms buckled, not because of “witness interference and political intimidation of witnesses”, but because these allegations were controverted by the prosecution’s own evidence. Simply that.

The judges found that “the prosecution has hardly any evidence of actual use of guns during the alleged attacks”.

No amount of evidence being admitted under the amended Rule 68 would have changed this self-inflicted failure of the OTP. 

Senator Omar again more than hinted at the absurdity of this “key pillar in the prosecution’s theory of the case” as early as January 27, 2012 when he said on Capital Talk: “If I distributed three thousand guns or guns at all, where are those deaths that were occasioned by bullets? Guns don’t shoot arrows.”

It is as obvious as that!