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My overarching argument is that the accused Deputy President William Ruto, direct victims, indirect victims, as well as witnesses have key roles or interests in the International Criminal Court (ICC) case.
After the Trial Chamber ruling to admit recanted evidence in the Ruto and journalist Joshua arap Sang case, a new controversy arose after legislators loyal to the DP and President Uhuru Kenyatta said Ruto was fixed by named and unnamed people.
President Kenyatta’s allies joined in when Ruto’s URP said the Government, through Attorney General Githu Muigai and the Foreign Affairs ministry, had not pushed the DP’s case with as much vigour as they did before the Uhuru’s case withdrawal.
This has now degenerated into a bitter exchange between Uhuru and Ruto’s supporters and the Opposition led by CORD’s Raila Odinga. Raila has maintained that Uhuru’s regime has a critical role to play in ensuring that justice is served.
I advance two key arguments: First, that Ruto should take leadership of his case on the trajectory of the rule of law and due process, rather than let the case be led on a traditional ethnically divisive path. Uhuru and Ruto were political antagonists in the 2007 presidential elections. This will secure truth, justice, reconciliation and reparation for all.
Second, the utility of any evidence by Raila, Gatundu South MP Moses Kuria among others depends on Ruto’s legal strategy and on Uhuru’s compliance with the rule of law.
The post-election violence and terror as recorded in the Commission of Inquiry into Post-Election Violence Report have come back to haunt the Uhuru administration.
This is after Raila challenged the President to order the National Intelligence Service to withdraw the confidential exhibits of the Waki report incriminating Ruto.
The National Security Intelligence Service (NSIS), as it was then known, was under Michael Gichangi and President Mwai Kibaki and PNU minister was responsible for the security docket. Uhuru was then deputy prime minister.
Disclose names
ICC admitted part of the report prepared by the Waki Commission as part of evidence in the Ruto and Sang case. Uhuru may order withdrawal partly because under the “parol evidence rule”, oral evidence by Raila or Kuria cannot ordinarily be allowed to contradict documentary evidence from NSIS.
Uhuru’s ally, Kuria, during a “prayer” meeting for Ruto on September 20, confessed and alleged that he and former Justice Minister Martha Karua had implicated Ruto at the ICC.
Kuria has reportedly accepted to be a defence witness. The question is Kuria’s credibility as a witness given that he has violated Article 70 of the Rome Statue by admittedly obstructing justice and fabricating evidence.
Section 14 of Kenya’s International Crimes Act, 2008 prohibits every person with intent to mislead from fabricating anything with intent that it be used as evidence in the proceedings of the ICC.
However, assuming Kuria’s evidence is credible, and that it can establish the facts in issue, is it sufficiently weighty to establish Ruto’s innocence?
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Who is Kuria? He has been reportedly a serial ethnic war monger and seems above any successful prosecution. He was pushed to Parliament unopposed on Uhuru’s TNA party following the mysterious death of the area MP. He had worked for the Kibaki-Kenyatta Party of National Unity (PNU).
Raila, who has also expressed his willingness to testify amid opposition by lawmakers among them Kipchumba Murkomen, may corroborate and strengthen the evidence to help secure justice.
This can only be helpful to Ruto, the victims and the course of justice if those who procured the evidence own up.
They are said to have been in PNU and some of them in the Government now. Ruto’s ICC lawyers and allies had alleged that Former Principal Secretary Mutea Iringo and the President’s political adviser Nancy Gitau procured witnesses against Ruto.
Uhuru may thus respond to Raila’s request that he orders ex-NSIS officials and Kuria to swear affidavits disclosing the names of witnesses allegedly recruited.
The President may order the relevant witnesses to tell the truth regarding the violence, especially the one orchestrated following State House meeting on or about December 30, 2007 at the instigation of an ICC-named politician. And the Government would then be partially vindicated for truthfully cooperating.
ICC’s intervention in Kenya can promote justice and balance of State power and individual and collective rights under the Constitution.
But perpetrators are determined to discredit and cheat the ICC justice process. Thus they are promoting impunity instead of helping resolve this problem.
ICC can help achieve the rule of law and accountability if it persists in securing justice.
The indirect and equally affected victims are the Kenyan people. Kenyans’ sovereign rights to democratically elect their president or Government officials have been nullified since independence. And particularly since Jomo Kenyatta era assassinations (Pinto in 1965 and Mboya in 1969) and electoral violence (the Kisumu massacre in 1969) as means of keeping or acquiring (presidential) power.