Bensouda fails to present evidence to convict Ruto and Sang

Wednesday April 6 2016

DP William Ruto in a jovial mood with leaders who came to congratulate him at his Karen office after ICC judges dropped charges against him and journalist Joshua Sang. PHOTO | DPPS

DP William Ruto in a jovial mood with leaders who came to congratulate him at his Karen office after ICC judges dropped charges against him and journalist Joshua Sang. PHOTO | DPPS 

By BERNARD NAMUNANE
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By WALTER MENYA
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At exactly 6pm on Tuesday evening, Deputy President William Ruto and his co-accused Joshua arap Sang were freed from The Hague shackles of more than six years, after charges they were facing at the ICC were dropped.

With one Judge dissenting, The Trial Chamber bench declared the case brought against Mr Ruto and Mr Sang a mistrial.

They dismissed the charges of crimes against humanity, arguing that the prosecution had failed to present sufficient evidence to convict the suspects.

Judges Chile Eboe-Osuji and Robert Fremr dismissed the evidence presented by ICC Prosecutor Fatou Bensouda and freed the DP and the former radio presenter.

FRESH CHARGES

The judges, however, allowed Ms Bensouda to bring fresh charges against the two if she gets new evidence.

The ICC judges also declared the proceedings “a mistrial due to a troubling incidence of witness interference and intolerable political meddling”.

They dismissed evidence that Mr Ruto was in charge of a network that planned, facilitated and financed violence in Eldoret and its suburbs during the 2007/2008 post election violence.

They poked holes into prosecution allegations of meetings and rallies that could not be supported by evidence and said there was no evidence that Mr Ruto purchased guns and handed them to youths in the region to target PNU supporters.

EXCITEMENT

Mr Ruto expressed joy following his acquittal and was joined by dozens of Jubilee MPs at his Karen office where he was awaiting the ruling.

President Uhuru Kenyatta, whose case was terminated last December, joined the celebrations from France, where he is on an official visit.

“I am delighted that the Deputy President and Mr Joshua Sang’s innocence has been vindicated by a decision of no-case-to-answer at the ICC. This moment is long overdue but no less joyful. I join my brothers in celebrating their moment of justice,” he said in a statement.

Kenya and the African Union have been waging a diplomatic and political war to have the cases terminated though in the final analysis, it was all decided in the courtroom.

Judge Eboe-Osuji argued that the case was a mistrial, following the failure by the prosecution to present evidence to prove that Mr Ruto and Mr Sang committed the crimes against humanity.

“The mistrial declaration follows from the resulting question as to the just basis (viewed from the perspective of legal outcomes) to terminate the proceedings: given the weaknesses found in the prosecution case and taking into account what I consider to be serious tainting of the trial process by way of witness interference and political intimidation of witnesses,” he said.

He also stated that the prosecution failed to present adequate evidence to convince the Trial Chamber that its witnesses were either intimidated or manipulated to pull out of the case.

“Was the prosecution’s case weak because there really was no better evidence left to be obtained and tendered without the factor of witness interference and political intimidation? Or was it weak because the prosecution did the best they could with the only evidence they could eke out amidst difficult circumstances of witness interference and political intimidation?

DECLARE A MISTRIAL

“Because of the tainted process, I am unable to say. It is for that reason that I prefer declaration of a mistrial as the right result,” he observed.

He concluded that had there been no interference or political meddling, the outcome of a finding of genuine weaknesses in the prosecution case would have led to judgment of acquittal.

Judge Fremr ruled that the prosecution had failed to present sufficient evidence to convince the Trial Chamber to convict the DP and his co-accused.

“The chamber comes to the conclusion that it could not support a conviction beyond reasonable doubt, then it should enter an acquittal and therewith end the proceedings.”

He argued that following the failure by the prosecution to prove its case, there was no reason for the ICC to allow the case to proceed to the trial stage where the defence would have been called upon to present its case.

“Continuing proceedings in such circumstances would be contrary to the rights of the accused, whose trial should not continue beyond the moment that it has become evident that no finding of guilt beyond all reasonable doubt can follow,” he said.

DISSENTING VOICE

But Judge Olga Herrera Carbuccia disagreed, arguing that the prosecution evidence was sufficient to find the suspects with a case to answer.

Judge Herrera submitted that the prosecution case had not “broken down” to the extent of acquitting the suspects.

“Analysis of the evidence, the counts against the accused, namely the crimes of murder, deportation or forcible transfer and persecution, are temporally and geographically limited. Within these limits, evidence has been presented upon which a reasonable chamber could convict the accused for all three counts, albeit not in respect of all geographical locations or within the totality of the time limit provided for in the charges,” he said.

During the 157 trial days, the Trial Chamber heard the testimony of 30 witnesses for the prosecution, including two expert witnesses. The chamber admitted into evidence 335 exhibits for the prosecution, 226 exhibits for the Ruto defence, and 82 exhibits for the Sang defence.

THE PROCEDURE

The prosecution closed its case on September 10 last year. It presented 92 photographs, 27 maps, 77 items of audio/visual material, and over 8,000 pages worth of documentary evidence. The Trial Chamber made over 400 written and oral decisions.

The termination of the case now shifts the focus to the ICC’s Trust Fund for victims after the Trial Chamber invited their views with regard to reparation or assistance in lieu of reparation.

The fund’s job is to implement court-ordered reparations and to provide physical, psychological, and material support to victims and their families.

However, Judge Eboe-Osuji said the termination of the case should not block the victims from being compensated.

“The termination of the trial in the circumstances should not obstruct the prospect of the victims’ entitlement to reparation without further delay. Reparation for victims need not be solely dependent on conviction of accused persons,” he said.