Why new ICC ruling is bad for Uhuru, Ruto


The International Criminal Court at The Hague.

A ruling made at the ICC in the Hague on Wednesday could renew focus on the collapsed cases against President Uhuru Kenyatta and Deputy President William Ruto. The International Criminal Court found former DRC vice-president Jean-Pierre Bemba and four others guilty of having bribed witnesses.

The judges found that the five had jointly committed the offences of

intentionally corruptly influencing 14 defense witnesses and presenting their false evidence to the court. For these types of offences, according to the Rome Statute, the judges may impose a term of imprisonment not exceeding five years and/or a fine. The trial judges shall pronounce

the penalties at a subsequent stage.ICC Prosecutor Fatou Bensouda stopped the cases against Uhuru,citing interference with witnesses as having denied her the necessary evidence.

She made the same claim in thecase against Ruto and Joshua Sang, but the judges said that they had found they had no case to answer.

The lawyers for Uhuru and Ruto dismissed this claim and in May the DP asked Bensouda to prove that witnesses were bribed. There are three arrest warrants against Kenyans who were accused by the prosecution of influencing witnesses still pending. Two Kenyans were arrested by local police on July 30 last year for being at the centre of the alleged criminal witness tampering that cost the prosecution six witnesses against Ruto. Lawyers Paul Gicheru and Philip Bett were named in ICC arrest warrants issued in March 2015.

The third arrest warrant is against Walter Barasa, who is also accused by Bensouda of having interfered with witnesses and being part of the web involving Gicheru and Bett. Their cases remain in the Pre-Trial stage, pending their arrest or voluntary appearance before the Court. The ICC does not try individuals unless they are present in the courtroom. In April, President Kenyatta announced that Kenya would not again allow any of its citizens to be tried at the ICC – nor any other foreign court. “Sisi hiyo chapta tumefunga, hakuna pahali pengine tunaenda na hakuna mtu mwingine tutaruhusu apelekwe pahali popote. (We have closed that chapter, we cannot allow any other person to be taken anywhere),” he told a prayer meeting organised after Ruto’s case collapsed. Despite this being the case, the three can be arrested if they leave the country and the warrant is executed by the authorities in the countries they visit. The ruling on Wednesday comes at a time when Kenya is preparing to push for amendments to the Rome Statute at the November Assembly of States Parties.

One of the key amendments that Kenya will be seeking concerns offences against the administration of justice and reducing the Prosecutor’s powers. On Wednesday, Bemba was found guilty of soliciting the giving of false testimony by the 14 defence witnesses. The others found guilty are Benba’s former counsel Aimé Kilolo; Jean-Jacques Mangenda (a former member of Bemba’s defence team); Fidèle Babala (a political ally of Bemba in the DRC Parliament; and Narcisse Arido (a potential defence witness in the Main Case, who ultimately did not testify). Kilolo was found guilty of inducing the giving of false testimony by the 14 defence witnesses and Mangenda was found guilty of aiding the giving of false testimony by two defence witnesses and abetting the giving of false testimony by seven defence witnesses.

The Chamber found Babala guilty of aiding the corrupt influencing of two defence witnesses.

Arido was found guilty of corruptly influencing four defence witnesses. In September last year, the ICC for the first time revealed details of an alleged multi-million shilling bribery scheme leading to withdrawal of prosecution witnesses from the Kenyan cases. Issuing summons for Gicheru and Bett, ICC judge Ekaterina Trendafilova outlined how and when the two allegedly executed the plan to corrupt six witnesses. Claims of witness tampering and obstruction of justice were critical to the case against Ruto were systematically bribed and intimidated.

In May this year, Ruto asked the ICC judges to order Bensouda to appoint an amicus prosecutor to investigate her witnesses, intermediaries, and possibly court staff members, for off ences against the administration of justice. Ruto and Sang were accused as indirect perpetrators of orchestrating the 2008-08 post-election violence. Gicheru is described as the manager of the scheme and the court says he used Bett and Barasa as the implementers. “The Single Judge considers there existed an organised and well coordinated scheme involving both Paul Gicheru and Philip Bett, aiming at corruption of witnesses of the Prosecutor. While Paul Gicheru had

an overall coordinating role in the eff ort to corrupt witnesses, Philip Bett participated under Gicheru’s direction in implementation to certain witnesses,” the ICC judge said.

According to the judge, Gicheru is accused of the crime of corruptly influencing a witness, by paying Witness P-397 Sh1 million and offering to pay the witness Sh5 million to withdraw. Judge Trendafi lova said this crime was committed from April 2013 to January 2014 in Eldoret. The judge also says Gicheru either offered or paid Witness P-516 a bribe of at least Sh500,000 to withdraw. This happened in April and May 2013 in Eldoret, she said. Between April and September 2013, Gicheru allegedly off ered to pay Witness P-613 a bribe and made a job-off er inducement to withdraw.

The ICC also indicated Gicheru allegedly paid Witness P-800 a bribe of between Sh1.5 million and Sh2.5 million around July 2013. It said the witness was introduced to Gicheru by Bett, who took him to the offi ce of Mitei & Company Advocates, where he signed an affi davit to withdraw from the case. The ICC says around September 2013, Gicheru allegedly paid a bribe

of Sh2.5 million to Witness P-495 and offered a job in exchange for withdrawal. Between May and August 2013, Gicheru paid a bribe of either Sh1 million or Sh1.4 million to Witness P-536 as part of the scheme, ICC documents indicate. The ICC claims the witness was contacted by Barasa numerous times between May and August 2013, for the purpose of offering a bribe.

“Walter Barasa explicitly promised Witness P-536 a payment of at least Sh1.4 million. Barasa told the witness Paul Gicheru was in charge, but he did not contact the witness directly because he should not be exposed,” Judge Trendafi lova said. Bett is to be charged with criminal

responsibility for offences against the administration of justice as a direct co-perpetrator.

The ICC judge said alternatively, he can be charged with contributing in any other way to the commission or attempted commission by a group of persons acting with a common purpose of corruptly influencing witnesses. It is alleged Bett was the link between some witnesses and

Gicheru. He is said to have organized meetings between the witnesses and Gicheru and also used them to reach out to other witnesses.


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