As Ruto savours victory, Bensouda’s witnesses claim could tilt scale

Sunday February 14 2016

Deputy President William Ruto addresses participants of a fundraiser in aid of Toroso High School on February 13, 2016. Mr Ruto is confident that he and Mr Sang will be vindicated. PHOTO | JARED NYATAYA | NATION MEDIA GROUP

Deputy President William Ruto addresses participants of a fundraiser in aid of Toroso High School on February 13, 2016. Mr Ruto is confident that he and Mr Sang will be vindicated. PHOTO | JARED NYATAYA | NATION MEDIA GROUP 

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A day after judges refused to accept the use of recanted evidence at the International Criminal Court, Deputy President William Ruto has exuded confidence that the case against him and radio journalist Joshua Sang will collapse.

He said the “truth is finally coming out” and they will soon be vindicated and asked Kenyans to continue praying for them.

“We all saw what happened Friday regarding the matter touching on me and Joshua Sang. I am happy about it and I ask you to continue praying for us. Finally the truth is coming out and we shall soon be free to join other Kenyans in building our nation,” Mr Ruto said on Saturday.

The Deputy President was in his Sugoi farm when the judgment was read. He watched the judgement read from his house in the company of his wife Rachel.

Another major decision on whether Mr Ruto and Mr Sang have cases to answer given the evidence Prosecutor Fatou Bensouda has presented is still pending.

Following the appeal decision on the use of unsworn testimonies of six witnesses, the focus now turns to the Trial Chamber to make a determination on the no-case-to-answer motions the defence has filed seeking Mr Ruto’s acquittal over the post-election violence charges.

In a unanimous decision, the ICC appeals judges comprising Piotr Hofmanski, Silvia Alejandra Fernández De Gurmendi, Christine Van Den Wyngaert, Howard Morrison and Péter Kovács ruled that the Trial Chamber had erred in allowing Ms Bensouda to rely on out-of-court statements of witnesses who either recanted them or refused to take the stand to testify.

“In the present case, for the reasons set out above, it is appropriate to reverse the Impugned Decision to the extent that prior recorded testimony was admitted under amended rule 68 of the Rules for the truth of its contents,” the judges said.

At the same time, Mr Ruto’s lead counsel Karim Khan said the appeal judges had correctly interpreted the contentious Rule 68 and its application to Kenya’s post-election violence cases.

“The Appeals Chamber has carefully reviewed the filings of the parties and deserve great credit for unanimously clarifying the law on an important issue before the court. Today (Friday), justice and the rule of law have prevailed. We look forward to the Trial Chamber’s determination of the defence application for a judgment of acquittal which is before it and are confident that all relevant matters will be equally considered by the Trial Chamber,” Mr Khan told the Sunday Nation.


Mr Ruto is accused of being criminally responsible as an indirect co-perpetrator of crimes against humanity consisting murder, deportation and persecution during Kenya’s 2007/8 post-election violence.

More than 1,300 people died in the violence while hundreds of thousands were driven away from their homes and property of unknown value destroyed.

Besides Mr Ruto, Mr Sang is charged with contributing to the commission of crimes against humanity consisting murder, deportation and persecution.

Mr Sang equally expressed his delight at having gone past “yet another hurdle”.

“I am so happy that the Appeals Chamber accepted our arguments. But there is still one more step to our freedom. If I had a chance with the Prosecutor (Bensouda) today I would only have one request for her: Drop my case because I have no case to answer,” an elated Sang told the Sunday Nation.

Senate Deputy Majority Leader Kipchumba Murkomen, a close confidante of Mr Ruto’s, said the decision was the final nail in Mr Bensouda’s case.

“We are more than confident that the case against Deputy President William Ruto and Joshua arap Sang has come to an end. It is now very clear. We are not expecting any other result other than victory for the two in the no-case-to-answer,” he said.

“We were very elated,” said Energy Cabinet Secretary Charles Keter, also a close ally of the DP: “The decision confirms what we have been saying that these cases are hinged on rumour and falsehood. The real party is coming soon since the court is slowly acknowledging that if allowed to continue, the process would amount to a travesty of justice.”

The concerned witnesses whose testimonies the Appeals Chamber rejected had been considered key to the cases against Mr Ruto and Mr Sang.

Five of them were compelled to testify but recanted their earlier statements to the prosecution and were declared hostile.

They were witnesses 495, 516,743, 604 and 637. The sixth one, 727, refused to take the stand to testify.


Their out-of-court statements, which now stand expunged from the prosecution’s record of evidence, centred on allegations of planning meetings and financing of the post-election violence.

In their statements, the witnesses had alleged that Mr Ruto chaired several planning meetings and bankrolled the violence against members of the Kikuyu, Kamba and Kisii communities residing in Turbo, the greater Eldoret (encompassing Huruma, Kiambaa, Kimumu, Langas & Yamumbi), Kapsabet and Nandi Hills towns.

In seeking the admission of the witness statements in April 2015, Ms Bensouda had alleged that “improper interference” with the witnesses was the reason some recanted or withdrew.

“As a result, the prosecution has been deprived of a significant portion of the incriminating evidence that it intended to present to Trial Chamber V (A) in support of its charges,” she said.

In Friday’s judgement, which has now weakened Ms Bensouda’s case, the Appeals judges said the Trial Chamber had erred in allowing the prosecution to rely on the untested testimony.

They found that the amended rule 68 had been applied retroactively in the on-going trial proceedings to the detriment of the suspects.

“In conclusion, the Appeals Chamber finds that the application of the amended rule resulted in (i) additional exceptions to the principle of morality and restrictions on the right to cross-examine witnesses, and (ii) as a consequence, the admission of evidence, not previously admissible in that form under former rule 68 of the Rules or article 69(2) and (4) of the Statute which could be used against the accused in an Article 74 decision.

“Considering these disadvantages, the Appeals Chamber finds that the application of this rule negatively affected the overall position of Mr Sang and Mr Ruto in the proceedings at hand.

Accordingly, the Appeals Chamber holds that the Trial Chamber applied amended rule 68 of the Rules retroactively to the detriment of the accused,” the judgment reads.

But even as the defence savours the Appeal Chamber Rule 68 decision indications are that Ms Bensouda may adopt a different strategy in her case, including her claims on witness tampering as well as the legal recharacterisation of the charges – possibility of widening the scope of charges – against Mr Ruto to include ordering, soliciting and inducing commitment of crimes against humanity.


A similar decision for recharacterisation of charges against Mr Sang is also awaited that would widen the charges to include “soliciting or inducing” or of “aiding and abetting” the crimes.

Already, three individuals have been indicted for witness interference.

They are former journalist Walter Barasa, Philip Kipkoech Bett and lawyer Paul Gicheru.

Reports also indicate that at least four more individuals have been indicted for witness tampering. The latter warrants of arrest have yet to be unsealed.

And, in previous filings, Ms Bensouda alleges widespread witness tampering in the post-election violence cases in Kenya by individuals she claimed were acting on behalf of the accused.

“The judges decided that changes to Rule 68 could not be used here, which means some of the prosecutor’s witness testimony will be thrown out. It’s not clear how this will impact the Ruto and Sang case, but today’s decision shouldn’t obscure the bribery of witnesses that prompted the use of Rule 68 in the first place,” said Liz Evenson, senior international justice counsel at Human Rights Watch.

Legal representative for the victims Wilfred Nderitu has also said the trial has been marred by witness interference.

“All legal principles, including the principle of non-retroactivity, are designed to serve the ends of justice, not to defeat those very ends. As the late (Tanzania President Julius) Nyerere said, laws are there to guide us, not to blind us,” said Mr Nderitu.

The stumbling blocks against Mr Ruto notwithstanding, opposition leader Raila Odinga was among the leaders who, on Saturday, welcomed the decision.

Through his spokesman Dennis Onyango, Mr Odinga said that he “feels vindicated on two fronts as the case against Ruto and Sang gets weaker.”

Mr Odinga reiterated that ODM, to which Mr Ruto belonged in 2007, did not plan any violence.