With ICC ruling on case, Deputy President William Ruto not out of the woods

The chickens of the International Criminal Court have come home to roost for TNA’s Uhuru Kenyatta and URP’s William Ruto. The last two weeks have been turbulent for Kenya’s numero uno and numero dos.

I wouldn’t sleep easy if I was one of the duo. I would toss and turn — anxious and uncertain about the next treacherous curve in the ICC’s winding road. The leviathan of the ICC — once deemed dead — has come roaring back. All bets are now off. No one knows — or can predict with any legal certainty — when the next shoe will drop. I know this much — the noose of the ICC just grew tighter round Mr Ruto’s neck. Nor is Kamwana out of the woods.

Let’s start with the indomitable Mr Ruto. Before the ICC’s latest ruling, which knocked the daylights out of Mr Ruto’s defence team, the case against the son of Cheruiyot was limping on a single broken leg. That’s because witnesses against him had either recanted their statements, refused to testify, disappeared, or been allegedly sent to their maker. I had put the chances of his conviction at below 20 per cent.

But then ICC Prosecutor Fatou Bensouda scored with a tough header in the 75th minute. The Gambian legal pugilist convinced the judges of the ICC that Mr Ruto’s witnesses had been interfered with to his benefit. The result is devastating for Mr Ruto. Karim Khan, his legal counsel, huffed and puffed.

Mr Khan, who has a proclivity for histrionics and blather, will doubtlessly appeal the ruling. And why not? He’s got nothing to lose and is getting paid. But methinks that won’t be money well spent. That’s because the court’s ruling was legally foolproof. Ms Bensouda was able to show a systematic and methodical pattern of tampering with witnesses.

The judges held that it’s factual nonsense that so many prosecution witnesses would recant, or turn hostile, without any plausible explanation. Equally unbelievable is that none of the defence witnesses have similarly recanted, or turned hostile. That asymmetry was telling. The inference is that Mr Ruto’s side was involved in sinister shenanigans to coerce, bribe, disappear, and tamper with witnesses.

What’s terrible for Mr Ruto is the statements of the five critical but hostile witnesses were admitted into evidence for their truth. Ouch. That means they can’t be rebutted, or interrogated. Frankly, it would’ve been better for Mr Ruto’s side to have the witnesses testify and then confront them on cross-examination. That opportunity is now lost. The ICC has set this historic precedent with the ruling — don’t kill, disappear, or coerce witnesses to recant their statements if they’ve already signed them voluntarily. Statements of dead witnesses will now speak from the grave. That’s heady legal stuff. The Kenya government’s push to amend ICC rules — to allow excusals and trial by video-link [Skype] — has come back to bite Mr Ruto.

Let me turn to Mr Kenyatta’s case. Three important events had convinced the Jubilee crowd that Mr Kenyatta’s case was dead and buried — Ms Bensouda’s withdrawal of the case, President Barack Obama’s infamous trip to Kenya, and the chummy visit with Mr Kenyatta at State House of ASP President Sidiki Kaba. But then in boxing jargon, the ICC Appeals Chamber delivered a left upper-cut. The apex court of the ICC reversed the Trial Chamber’s ruling not to refer Kenya to the ASP for non-cooperation. It called the ruling legally defective, patently illogical, factually unsupported, and jurisprudentially warped. The Appeal Chamber just stopped short of questioning the Trial Chamber’s integrity and competence. The harsh rebuke doesn’t augur well for Kenya.

But the Appeals Chamber did something more worrying for Mr Kenyatta. It accused the Trial Chamber of conflating Mr Kenyatta’s case with Kenya’s referral to the ASP. In my view, this opens the legal door to re-start Mr Kenyatta’s case if Kenya is forced to produce the crucial evidence Ms Bensouda had sought. Failure to do so would invite UN Security Council sanctions and revert Kenya to a pariah state.

That’s why I would ask Jubilee to stop bloviating about an ICC ploy for regime change. Mr Kenyatta himself told Mr Kaba that Kenya believed in the rule of law, and would cooperate fully with the ICC. It’s time to put the money where the mouth is.

I’ve argued for years that the wheels of justice sometimes are slow. That doesn’t mean justice will never be done. I believe everyone — including Mr Kenyatta and Mr Ruto — is innocent until proven guilty. But that requires justice be allowed to take its course.

That’s why those who believe in the rule of law must welcome the twin ICC rulings on Mr Ruto’s case and on Kenya’s non-cooperation with the ICC. Let the chips fall where they may. Ahoy!

The writer is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC.