Kenya Top Stories

Another ICC witness in Ruto case goes missing

By John Kamau, Editor, Thingira.org (Email:thingiragema@gmail.com)

It appears the victims of the 2007/08 post-election violence in Kenya will never get justice.

This is after a key witness in the case against lawyer Paul Gicheru at the International Criminal Court (ICC) went missing.

There are now fears the witness could have been killed or abducted to stop him from testifying.

According to the Office of the Prosecutor (OTP), witness P-0397, who was meant to give oral testimony, cannot be traced,

The witness was also scheduled to give evidence in the collapsed case that involved the Deputy and radio journalist Joshua Sang.

In his statement to the ICC, the witness claimed Gicheru influenced him into withdrawing from the collapsed case against Ruto and Sang.

He revealed Gicheru corruptly offered to pay him Sh5 million to withdraw from the case against Ruto and Sang, but only paid him Sh1 million.

ICC Deputy Prosecutor James Stewart is now seeking a court nod to use previously recorded testimony of the witness against Gicheru.

“The prior recorded testimony should be accepted as formally submitted because the witness is unavailable and the documents are reliable,” said the prosecutor.

The witness had his last contact with the ICC in 2014, and since then has not talked to The Hague-based court.

“The prosecution also seeks to introduce the transcriptions and English translations of P-0397’s interview in January 2014 for the truth of their content, as they are directly relevant to the charges in this case, and items provided by P-0397 during the interview,” said Stewart.

The ICC issued a warrant of arrest against Gicheru in 2015 after claims of bribing witnesses in the failed case against Deputy President William Ruto and radio presenter Joshua Arap Sang.

 The two were charged with instigating violence after a disputed 2007 election when 1,200 people lost their lives.

The crimes against humanity case was vacated in 2016.

The judges in the ICC case had in 2016 ruled that the DP and his co-accused had no case to answer.

However, they left the door open for possible fresh charges in future if sufficient evidence is tabled, noting that the case had been hampered by political interference and threats against witnesses.

Gicheru faces a five-year jail term or a fine in accordance with the court’s Rules of Procedure and Evidence, or both if found guilty of committing crimes against administration of justice.

Ruto’s fear that if Gicheru is convicted of witness interference, his case will be revived.

The ICC decision on Gicheru’s case triggered discourse and prompted speculations on what impact it might have on Deputy President’s candidacy in the 2022 elections and his case before the International Criminal Court, in which the ICC vacated his charges.

Gicheru surrendered himself to the Dutch authorities on November 2, 2020, five years after the ICC issued an arrest warrant against him and his co-suspect, Philip Kipkoech Bett. The arrest warrant was issued in March 2015.

 The decision delivered in Gicheru’s case on July 15, 2021, by the Single Judge, Reine Adélaïde Sophie Alapini-Gansou, revealed that there is evidence showing that Gicheru bribed, intimidated or threatened eight prosecution witnesses in the case against Ruto and Sang.

In a 2-1 judgment, Trial Chamber V(a) decided in April 2016 to terminate the charges against Ruto and Sang after the prosecution had closed their case but before Ruto and Sang presented their defence.

The judges said one reason they did this was because the prosecution evidence had deteriorated due to interference with witnesses, and it was not possible to determine the innocence or guilt of Ruto and Sang.

However, it was determined that the case might be reopened if there is adequate evidence against Ruto and Sang.

The linkage led to a discourse on whether Gicheru’s trial might lead to reopening the case.

However, this is speculative since Gicheru charges are on witness tampering, and the case against Ruto and Sang were on crimes against humanity.

On April 1, 2015, the Cabinet Secretary, Ministry of Interior and Coordination of National Government of the Republic of Kenya received a joint request from the International Criminal Court (ICC) for the arrest and surrender of Gicheru and Bett.

In a decision delivered by the High Court of Kenya on November 16, 2017, Judge Luka Kimaru dismissed the application filed by the Republic of Kenya as part of its mandate to cooperate with the International Criminal Court, stating that it lacked merit.

“The warrant of arrest issued by this Court (the International Criminal Court) against the Respondents (Paul Gicheru and Philip Kipkoech Bett) is hereby lifted. For the avoidance of doubt, the Applicant (The Republic of Kenya) shall not take any action in furtherance to the request made for the surrender of the Respondents, unless and until there is compliance with the orders of this Court. It is so ordered,” said Judge Kimaru.

However, despite this decision that challenged the arrest warrant issued by the ICC against Gicheru and Bett, Gicheru surrendered himself to the Court, raising more questions, despite him clearly stating that his surrender was voluntary, at his own expense, and without threat or coercion.

On August 9, 2022, Kenya will hold its next general elections, and Ruto is one of the presidential candidates.

The International Criminal Court (ICC) Prosecutor Karim Khan, Fatou Bensouda’s successor, recused himself from leading the case facing Gicheru according to article 42(7) of the Rome Statute. Deputy Prosecutor James Stewart will be handling the case.

Article 42(7) states that a prosecutor or his deputy may be disqualified from a case if “they have previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted.”

Karim Khan was Ruto’s Defence Lawyer in the 2017 post-election violence case in the Court.


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