Pair awaits two key rulings over the future of their Hague cases

As 2015 rolls towards the finish line, Deputy President William Ruto will be hoping 2016 will turn out to be his year of salvation from the post-election violence charges in The Hague.

This year is ending on an unpredictable note as Mr Ruto and his co-accused, former radio broadcaster Joshua Sang, wait for two key rulings to the future of the cases.

Mr Ruto and Mr Sang are jointly charged with being the key perpetrators of the 2007/8 post-election violence in which more than 1,000 were killed and hundreds of thousands rendered homeless.

The majority decision by the Trial Chamber to admit into evidence prior recorded testimony under Rule 68 of the ICC Rules of Procedure and Evidence on August 19 is probably the biggest blow to them.

Public international law expert Mokaya Orina argues that the admission of the prior recorded statements revived the case.

“All indications were that the case was standing on shaky grounds. I cannot tell the weight of evidence the prosecution has but my view is that the case was heading nowhere without the recanted statements,” he said.

For human rights lawyer Haroun Ndubi, the Rule 68 decision has been traumatising for the suspects.

“In the face of the general neglect by the government towards the victims of the post-election violence, the Office of the Prosecutor has been resilient and at least demonstrated that justice could finally be served,” he said.

The Rule 68 decision sparked outrage among Jubilee MPs, with rallies organised to seek divine intervention. Mr Ruto and Mr Sang have also filed appeals to reverse the decision.

Furthermore, the decision saw Kenya start mobilising African countries to support its supplementary agenda item at the November Assembly of State Parties (ASP) for the ICC members to “restate” their understanding of the amended Rule 68.

“It has been an expensive and wasteful year for the government because of the huge delegations it keeps sending out to fight the ICC. Some bureaucrats in government have been so fixated with having the cases collapse to the extent they mutilate laws without thinking of the future,” said Mr Ndubi.

For the suspects, 2015 has also seen Ms Bensouda, pictured, appearing to change tactics. This year alone, six people – some believed to be very close to the suspects – were indicted for witness tampering.

The warrants against Paul Gicheru and Phillip Bett were unsealed this year while four others have been issued but remain sealed bringing to six the number of witness tampering suspects in 2015. The seventh is former journalist Walter Barasa whose warrant was unsealed in October 2013.

While 2015 has come with its challenges for the defence teams, Mr Orina argues that it would also be important to look at the victories for Kenya.

“It has been a year of mixed fortunes for his (Mr Ruto’s) defence. On the one hand the Trial Chamber says it wants to use recanted statements and on the other hand Kenya sending a strong message to the ASP over the use of the recanted statements,” Mr Orina said.

It is a statement Mr Katwa Kigen, who leads Mr Sang’s defence team, agrees with.

“2015 has had its ups and downs,” said Mr Kigen. “Generally, it has been hopeful. The court has been good to us. For instance, we have seen people who lied come out to say so. And from time to time, it is gratifying to see the court appreciating the situation in Kenya.”

The year also saw Ms Bensouda conclude her case against the two accused, paving the way for the defence teams to file their no-case to answer motions to have them acquitted of the crimes against humanity charges.

Ms Bensouda has opposed the no- case to answer requests because “the evidence presented, taken at its highest, is sufficient to satisfy a reasonable Trial Chamber that the prosecution has proved all of the essential elements required to secure a conviction of both accused.”

Mr Ruto is expected to travel to The Hague for the oral hearings on the no- case to answer motions which will take place on January 14 and 15 next year.