Why the ICC ruled against Ruto on Ocampo

By Judy Ogutuand Wahome Thuku

International Criminal Court judges have rejected an application by Eldoret North MP William Ruto that sought to bar the court’s prosecutor from filing a case against post-election violence suspects.

Ruto also wanted the judges to refuse to issue summons or warrants of arrests against the suspects if the prosecutor Luis Moreno-Ocampo files the case before he (Ruto) is given a chance to make presentations to the court on why he thinks the prosecutor was acting unprofessionally.

The former Higher Education Minister filed the application at The Hague on December 1 seeking to bar Ocampo from seeking any summons or arrest warrants, or filing any application against him, until he is given a chance to present his side of the story.

But Ruto suffered a setback on Tuesday when three ICC judges, Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser, ruled that the suspended minister had no grounds to make the application.

Their decision was based on a technicality, and they said Ruto’s argument was no longer relevant because Ocampo has already submitted two applications for summons to appear.

It was also their finding that the ICC’s statutory provisions "do not empower the Chamber to prevent the prosecutor from submitting requests under article 58 of the Statute."

They ruled that the court’s procedure does not allow intervention of the suspects at the stage of seeking for summons.

Capacity to engage

The judges said as much as the language used in the rules could be deemed broad enough to capture any person who has legal capacity to engage in proceedings by way of submitting written or oral observations, the rules excludes a certain category of persons from the possibility of doing so.

"If rule 103 of the rules was meant to permit a person under court’s investigation to submit amicus curiae (friend of the court) observations, it would exclude him or her from responding to his or her own observations, "they said.

Ruto, they stated, has no locus stand (legal standing), as the court’s statutory provisions do not provide the persons named in Ocampo’s application to challenge the relevance of the evidence.

The judges also said that under the statutory framework of the court, there is no legal basis for a person under the prosecutor’s investigation to submit observations at the current stage of the proceedings.

"According to article 58 of the Statute, the Chamber shall examine the application and evidence or other information submitted by the prosecutor upon the review of which it will decide whether the requirements of article 58 of the Statute have been fulfilled," they ruled.

Dismissing the argument

But yesterday, Ruto’s lawyers were quick in dismissing the argument by the judges as flawed.

The team led by lawyers Katwa Kigen and Prof Kithure Kindiki said the Pre-Trial Chamber had misconceived their case by holding that Ruto was making the application as an amicus curiae (a friend of the court).

At a press conference held at a Nairobi hotel, the lawyers said the Eldoret North MP made the application as one implicated in the issues under investigations and had the right to be heard.

"Our client never made the application as a friend of the court and we never suggested anywhere that he was a defendant," Prof Kindiki said.

The lawyers also maintained that the ICC could not abdicate its obligation to compel the prosecutor to follow the law and investigate the exonerating evidence from Ruto himself.

They argued that Rule 103 of the ICC rules allowed anyone to raise issues of concern to the investigations. They questioned why the court held that Ruto would get an opportunity to respond as defendant saying he still had not been summoned.

"Unless they have decided that he will be a defendant, they can’t make that assumption now," Prof Kithiki said.

Prof Kithiki said after Ruto made the application Ocampo had been contacting the other suspects seeking to have exonerating evidence from them. He was doing what he should have done before he named them, the lawyers said.

"He has realised that his case has fatal gaps and its irredeemable and that is why he is now working backwards," Kithiki told journalists.

Next cause of action

The lawyers said they were consulting with their client on the next cause of action saying the Pre-Trial Chamber was not the final stop in their search for justice.

Ruto had filed the application on the basis of rule 103 of the ICC, which states that at any stage, the court may if it considers desirable for proper determination of the case, invite or grant leave to a person to submit in writing or orally any observation on any issue the court deems appropriate.

The rule also says the prosecutor and the defence shall have opportunity to respond to the observations submitted.

The judges said Ruto could not be allowed to submit his observations as the core rational underlying an amicus curiae submission is that the Chamber be assisted in determination of the case by an independent and impartial intervener who has no standing in the proceedings.

But it is the categorization as a "friend of the court" that Ruto’s lawyers say makes the judges decision flawed.

In his application to the court, Ruto said Ocampo had not conducted his own investigations and should be stopped from relying on previous reports whose veracity was being contested.

"That the ICC and in this case the Pre-Trial Chamber II as the custodian and guarantor of the rights of all parties (witnesses, victims and suspects) has the duty to ensure that the investigative powers granted to the OTP are done lawfully and are not abused, or used for ulterior motives" his lawyers said in the application.

Ruto criticised Ocampo saying that he was acting unethically as he deals with the Kenya case.

Act unprofessionally

"The Prosecutor has acted and continues to act unprofessionally, unprocedurally and unlawfully in disregarding of his mandate towards the Applicant in respect of the situation in Kenya on the 2007-2008 Post Election Violence," the application said.

Ruto has said that the Kenya National Commission on Human Rights and the Commission Investigating Post Election Violence whose reports were being relied on by Ocampo were full of falsehoods.

"The CIPEV report maliciously and without cause, dishonestly alleged that the Applicant testified to the Commission, an allegation that is unbelievably and ridiculously false," he said.

On the KNCHR he said that it had "wholly assembled their evidence clandestinely and in secrecy defeating any credibility that would otherwise be attached to the report".

To the application Ruto attached various documents, which included a statement he presented to Ocampo when the Eldoret North MP visited The Hague.

He also attached three affidavits sworn by individuals who had recanted testimonies they had given, which they claim was to be used by Ocampo as evidence against Ruto.

Last December, ICC Chief Prosecutor named six people whom he claimed are suspected masterminds of post-election violence.

In Ocampo’s list are Ruto, Deputy prime minister, Uhuru Kenyatta, Kass FM journalist Joshua Sang suspended Industrialization minister, Henry Kosgey, Postmaster General Hussein Ali and Head of Public Service, Francis Muthaura.

So far, ICC prosecutor has reportedly given three suspects until end of this month to present evidence absolving themselves from crimes committed against humanity.

Following the post-election violence that broke out after the disputed 2007 Presidential election where President Kibaki was declared winner, a commission of inquiry was formed to investigate the chaos.