The majority of the judges of the International Criminal Court's (ICC) Trial Chamber V dismissed the Prosecutor's case against William Ruto that he incited the post-election violence of 2007-2008.
One of the central planks of the ICC case against William Ruto was that from 2005 right through to 2007, at "no fewer than ten public rallies", William Ruto called for the expulsion of the Kikuyu, Kisii and Kamba communities from the Rift Valley. At these public rallies, attended by thousands of people, the Prosecutor alleged that William Ruto and "other Network members...laid the groundwork for their plan to evict the PNU supporters from the Rift Valley".
To support this claim, the Prosecution presented several witnesses, including P-743 (who, incidentally, the lead trial Prosecutor himself described as "a thoroughly unreliable and incredible witness") who gave an assortment of stories about what they claimed they heard Mr Ruto say at these "public rallies" about the forceful eviction of a section of Kenyans from the Rift Valley. From this hodge-podge of prosecution witnesses, the one which was quite amusing was the testimony of P-487.
This witness testified that William Ruto used his cap to communicate secret messages to his Kalenjin supporters to evict Kikuyus. This cap was the one Ruto wore at almost every public event at the time and bore nothing else other than the Kenyan flag.
During the course of the trial, the Prosecutor submitted only one video-recording of a campaign speech by William Ruto (in contrast to the 26 videos, we, the Defence submitted to the Judges). This one video-recording was of an ODM campaign rally which took place on December 5, 2007 in Kapsabet Stadium, where Ruto addressed a large crowd, in full view of the press and all and sundry. The Prosecutor promised that her one video would show that, in her words, "Ruto himself incited violence at a rally preceding the PEV".
The Prosecutor brandished this one video (twice) during trial proceedings and avoided it once. Despite its stated value to her case against Ruto, the Prosecutor ensured that the sound on that one video remained switched off throughout the trial (I am not joking!).
When showing the video to one witness (with the sound off, of course), the Prosecutor said to his witness, "I'm not going to ask you about the content of what's being said, but simply just the image" – these words capture the approach and attitude of ICC Prosecutors and investigators to the entire investigation and prosecution of the case against Ruto.
In contrast, we, the Defence, played this Prosecution video, and turned up the volume. When we did, what the court heard was Ruto telling the people of Kapsabet that whichever community they belonged to, they had a right to live right where they are. The absolute antithesis of the prosecution's case. Not very proper behaviour by the prosecutor, I say. Attempts to mislead any court must be deprecated. The role of a Prosecutor is not to strive for "convictions at all costs" - it is to seek justice and to ensure that a fair verdict is reached at the end of a criminal trial.
In dismissing the Prosecutor's case that Ruto incited the PEV and called for the eviction of PNU supporters, the judges found that "Given the extensive media attention and the audio/visual recording of election events at the time, it is striking that not a single press report or recording of any of the alleged 'hate speeches' was entered into evidence. The Chamber has experienced first-hand how pervasive Kenyan media coverage tends to be. It is therefore extremely unlikely that a plan to evict all Kikuyu from the Rift Valley could have been communicated to the thousands of alleged perpetrators without being picked up by the media...."
For the judges, this conclusion "was reinforced by the fact that a number of putative witnesses to the alleged speeches/meetings were in fact PNU supporters, who would have had ample reasons to bring this to the attention of PNU leadership, if not the wider Kenyan public." The majority also held that "the evidence shows that Ruto called for an end to violence, without this call being adhered to by a portion of the Kalenjin community."
The ICC case against William Ruto, at every turn, was misguided. The Prosecutor's case theory itself defied credulity. An understanding of why the "Ocampo 6" cases all failed, in short, is because of flawed investigations, reliance on so many obviously incredible witnesses, and insincere international scrutiny.
It is not surprising that Judge Fremr and Judge Eboe-Osuji "agree[d] that the proceedings against the accused should not continue beyond the Prosecution case." The Prosecution's evidence would not have been enhanced a jot by the silence of Kenyan politicians. The simple, but inescapable truth is that the case, built upon untruths, was what in American parlance is called "D.O.A" – Dead on Arrival at the ICC. The case against William Ruto is over. RIP.
