Ruto heads to The Hague on last chance to end ICC case


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In a penultimate thrust to halt his case at the International Criminal Court (ICC), Deputy President William Ruto together with his lead lawyer Karim Khan, will take the stand at The Hague between Tuesday and Friday to orally argue out why the case should stop at this stage.

Already, the Deputy President has filed a 95-page “request for judgment of acquittal” which offers a glimpse of the line of arguments he will be deploying next week.

ICC Prosecutor Fatou Bensouda has responded through a 140 page rebuttal which also answers Ruto‘s co-accused, ex-broadcaster Joshua arap Sang.

“I ask for prayers and for the truth to prevail,” Ruto curtly responded to The Standard on Sunday when we sought to know his expectations for next week.

According to the court schedule obtained by The Standard on Sunday, Joshua Sang will take the first day, Tuesday, to present his oral arguments on why the case should be terminated at this stage while Ruto takes the whole of Wednesday. On Thursday, the prosecution will take the stand to rebut the defense submissions while Friday is dedicated to replies, clarifications and statements of participants and judges.

Leaving today

Both Ruto and Sang are expected to travel tomorrow while some of their lawyers are leaving today. An advance party of supporters and friends is also leaving today ahead of the Tuesday hearings.

“I am leading a strong commando unit to The Hague to deflate Madam Bensouda once and for all. She has taken us for a ride for much too long and this week, she meets her waterloo,” Ugandan David Matsanga told The Standard on Sunday yesterday

At the heart of Ruto‘s tough mission is the requirement that he rebuts all the three counts of murder, deportation and persecution and all their respective modes of liability. This follows a December 12, 2013 prosecution notice that it could reframe his case under a different mode of liability (Article 25 (b), (c), or (d) of the Rome Statute).

Currently, Ruto is charged under Article 25 (3) (a). Judges have said Ruto must not only disapprove the mode he is charged under but also what he is likely to be charged under the notice.

Conversely, Bensouda is only required to satisfy the court that there is evidence supporting any one count under any one mode of liability. The burden is therefore squarely placed on Ruto‘s shoulders.

According to Ruto’s “Judgment of acquittal motion” which will guide his oral presentation, the theory of the case stands on unreliable witnesses, poor investigations and absurd conclusions.

Ruto‘s strategy which will deployed on Wednesday is to first attack the structural foundations of the case and when that fails, go bare-knuckled on the credence of the evidence presented so far.

On the structural front is plan to demonstrate to the judges that the organizational aspect of the post-violence, described as „network“ by Bensouda, only rested in the imagination of Bensouda and her predecessor Moreno Ocampo.

In her theory of the case, Bensouda described Ruto as the head of a “multi-faceted network” with political, media, financial, tribal and military components formed solely for the purpose of implementing „a common plan“ of kicking out Kikuyu‘s from Rift Valley.

“The existence of the network is fundamental to the satisfaction of the legal building blocks of the OTP‘s case. Without it, the case must fail,” Ruto says in the motion.

His argument is that the so called “network“ does not qualify to be an organization and goes on to fault the pre-trial chambers liberal definition of “organisational policy”.

If that fails to buy the judges, Ruto turns focus onto the claims made by individual witnesses on the organizational aspect of the violence and disapproves them. For instance, Ruto disapproves of all claims on alleged meetings held to plan the violence and his alleged role in them.

“The evidence of youths having their toe nails painted by elderly men and the witness‘ speculation as to its significance is incapable of belief. No other witness testified about youths wearing nail polish,” he says of one of the claims.

On claims of gun acquisition which would support the organizational aspect of the violence, Ruto avers that no evidence was presented on identities of who were to provide the guns and if they were eventually provided or used.

In fact, he says, no evidence was presented which shows any Kikuyu or PNU supporter died of gunshots in the violence. “The failure to adduce evidence of so-called “preparatory meetings” or meetings at which the steps crucial to the implementation of the common plan were taken means it has failed to prove the core of the case and, more specifically, the existence of an Article 7(2) ‘organisation’. This failure is not remedied by other non-meeting-based evidence,“ he says.

On the policy bit, Ruto will endeavor to demonstrate to the judges that there was no policy to perpetrate violence after 2007 elections. In the motion, Ruto paints all claims on policy as “hollow anti-PNU” and “campaign rhetoric.”

No evidence was adduced to show ODM rallies were organized for anything else other than for political mobilization, he says. No adverse media or police report was ever made of the rallies.

He will also advance the long-held defense line that contrary to prosecution assertions, the violence was a spontaneous and nationwide reaction to the blatant rigging that took place at the national tallying center.

At a more technical level, Ruto will argue that the OTP has failed to prove a particularized causal relationship between his actions and the actual crimes committed. For instance, where Ruto is accused of inciting through speech, he will claim no evidence was adduced to show that such speech substantially contributed to the conduct of the crimes.

No evidence

Further, Ruto argues, although massive displacements occurred in the course of the violence, no evidence was adduced to show that they were displaced outside Rift valley. “A judgment of acquittal is in the interests of justice whether it be from the perspective of Ruto or from that of the victims, who should not be led to believe that a conviction could result in this case, or from the standpoint of judicial efficiency and economy,” Ruto stated.

Bensouda on the other hand is expected to hold her ground that she tied up the case firmly. Already, has claimed she has presented sufficient evidence for each count and for at least one mode of criminal liability for both Ruto and Sang.“The Chamber should take this Prosecution evidence „at its highest“ and afford it credence on the basis that it cannot — either individually, or as a whole — be considered „incapable of belief,” she recently told the judges.

Ruto‘s push for judgment of acquittal is also complicated by the uncertainty obtaining in the use of prior-recorded evidence.

The matter is pending at the appeals chamber. Sang‘s defense wanted prior recorded testimony struck out of the no-case-answer motion considerations. “We will put up very strong arguments to demonstrate that the case is built up on straws, that there is no case to answer altogether. We don‘t intend or expect to lose but if God forbid we lose, we intend to continue with our defense,“ lawyer Katwa Kigen told The Standard on Sunday.

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