Eldoret North MP William Ruto wants the International Criminal Court to indict President Kibaki and Prime Minister Raila Odinga for the roles he says they played in the post-election violence.
In a statement that could form the core of Mr Ruto’s defence at The Hague, one of the suspended minister’s lawyers says the process of securing justice would have no credibility if Mr Kibaki and Mr Odinga are not charged.
“It is the general feeling and mood of the country that those with the highest responsibility be held to account for the loss of life and property,” Katwa Kigen said.
“In that regard the investigations should start with the President and the Prime Minister as the people fought because of them… before moving down the ladder to those who played various roles.”
Mr Ruto’s line of defence adds a new twist to the search for justice for the estimated 1,300 people who lost their lives in the orgy of violence that followed the controversial 2007 General Election.
By opting to present himself to prosecutors at The Hague, Mr Ruto appears to have thrown the top political leadership into a spin because the terms of any deal he might cut with the ICC are unclear.
By the time we went to press, there was no confirmation that Mr Ruto and his team of lawyers, including law lecturer Dr Kindiki Kithure, had personally met chief prosecutor Luis Moreno-Ocampo, who was in London on Friday at the time when media reports said he was in The Hague meeting Mr Ruto.
On Saturday, Belgut MP Charles Keter, who accompanied the Eldoret North MP to The Hague, said sessions with six ICC officials went late into last evening.
“We are hoping to finish today. It’s been perfect. He (Mr Ruto) is doing his own presentation after sessions with the lawyers in the hotel. They (lawyers) are backing him up. The evidence is not being taken on oath and cannot be used against him. It’s a question-and-answer session where the information you give is supported by documents,” Mr Keter said.
British journalist Lindsey Hilsum, the international affairs editor for Channel 4 TV, interviewed Mr Moreno-Ocampo in London on Friday, casting doubt on briefings by politicians allied to Mr Ruto which claimed the chief prosecutor was in The Hague.
Mr Moreno-Ocampo told Channel 4 he had written to several prominent Kenyans suspected of having played a role in the violence.
“I offered him (Mr Ruto) the opportunity to be heard. My duty is to conduct an impartial investigation, so he took up that invitation and came to explain,” he said.
In Nairobi, sources familiar with ICC proceedings told the Sunday Nation that Mr Moreno-Ocampo might go to the judges to ask for warrants against Kenyan suspects on or around December 18.
The decision to indict them will be up to the judges, but the chief prosecutor is confident that he has put together a strong case that will almost inevitably lead to trials of prominent Kenyans.
Much of the evidence, the Sunday Nation understands, was based on satellite intercepts of mobile telephone conversations which directly implicate key players.
A source who spoke to Mr Moreno -Ocampo said the ICC is using similar methods to establish culpability of top military commanders in Guinea for their role in an attack on civilians attending a pro-democracy rally that left as many as 158 dead.
Legal experts say Mr Ruto’s move to go to The Hague was a calculated attempt to spare himself the embarrassment of a formal indictment by the ICC.
But it is the likelihood that he might play the role of a “cooperative suspect”, which would presumably mean implicating top officials in government, that has animated debate in political circles.
“As long as the Chamber is satisfied that a suspect will appear voluntarily before the court without the need for arrest, during his stay in the Netherlands he shall not be taken into custody at the Scheveningen detention facility but shall be held at a location assigned by the court,” said Anna Osure, the deputy head of the office of legal aid and detention matters at the International Criminal Tribunal for the former Yugoslavia in The Hague.
“Full cooperation may benefit both the suspect and the Prosecutor. Interrogation of a cooperative suspect helps tighten loose ends, expedites any future trial and helps streamline the Prosecutor’s case. Through their cooperation, suspects may establish a lesser role in the commission of crimes, and if turned into insider witnesses, they could testify against individuals who bear greater responsibility for crimes charged."
"In the event they plead guilty to charges, they could assist the court as perpetrator witnesses and testify against their collaborators. In so doing, they provide a unique insight into how the crimes were committed and help the court to establish the truth.”
In his article in the Sunday Nation, Mr Kigen offers a glimpse into some of the lines of defence Mr Ruto might pursue. He says the process would not be viewed as credible unless the most senior officials in the grand coalition are indicted.
He also attempts to poke holes in the ICC investigation, saying it relied on witnesses with questionable backgrounds, including some with pending criminal cases.
It is not clear, however, how the Ruto defence team was able to get details of the witnesses the ICC is relying on since their client is yet to be charged.
The demand that the coalition principals be charged is similar to the argument Mr Kigen presented to constitutional court judges in an unsuccessful bid to stop a case in which Mr Ruto is accused of fraud. Mr Ruto had argued that his rights had been infringed because other people allocated land through a similar process had not been charged.
Mr Ruto’s Uasin Gishu region witnessed the worst violence in the fighting that gripped several parts of the country following the announcement of the contested results by the Electoral Commission of Kenya.
The Kenya National Commission on Human Rights (KNCHR) and the Commission of Inquiry into Post-Election Violence were damning in their assessment of the role they claimed Mr Ruto played in inciting youths to take up arms.
According to the KNCHR report, Mr Ruto used parables to urge the youth to uproot members of the Kikuyu and Kisii communities from the region.
“During an opening ceremony for the Seventh Day Adventist Church in a place called Mailing,” the report says, “(Mr Ruto) is alleged to have said that they would uproot the sangari (weed), ‘shake off the soil’, ‘gather it together’ and ‘burn it’, in reference to ‘outsider’ communities.
He is alleged to have addressed the public at Bisabol shopping centre in Turbo near Burnt Forest and incited the local Kalenjin and Luhya communities against the Kikuyu.
“At a meeting on 27/12/07 at his home in Sugoi he said that his headache was Jonathan Bii, his opponent, who supported the Kikuyu on the land issue and directed that they should be attacked if they dared campaign in the areas.”
Mr Ruto defended himself against the allegations, telling KNCHR officials that many politicians were caught up in the crisis like other Kenyans.
The suspended minister and Finance minister Uhuru Kenyatta failed in their bids to have their names expunged from the human rights commission report.