For Immediate Release
April 6, 2016
Preliminary Response to ICC Judgment in Ruto and Sang Case
1. International Center for Policy and Conflict(ICPC) wish to make several observations pertinent to the decision of the Trial Chamber IV(A) in the Prosecutor Vs. William Ruto and Joshua Sang in Kenya Situation Cases.
2. The International Criminal Court Trial Chamber IV (A) did not enter acquittal nor no case to answer judgment in the Prosecutor Vs William Ruto and Joshua Sang in Kenya Situation Case. It is no verdict chameleonic judgment. The majority judges’ decision is divided. The majority judgment is scattered with no one unanimous decision which is requirements of the Rome Statute Article 74(3)(5).
3. The judges applied proprio motu to vacate charges rather than wait for the Prosecutor to withdraw charges like in Uhuru Kenyatta Case. The Defence wanted acquittal but did not get it.
4. This judgment is the triumphant of impunity. The judges were fully seized of the extraordinary conditions the Kenya Situation cases have been investigated and prosecuted. They have had in the past made clear observation of the circumstances.
5. The court has issued arrest warrants against three Kenyans for interference on administration of justice and corruptly influencing witnesses on behest of the accused of the persons. Appeal Chambers affirmed non-cooperation.
6. Government of Kenya has had sole responsibility to prosecute masterminds of the PEV atrocious crimes but it has never established any justice complimentary mechanisms.
7. ICC is court of last resort. Consequently the onerous of prosecuting criminals responsibility for PEV serious crimes has always been with the government of Kenya, which has been unwilling and passing the blame to the ICC to cleverly cover its failure.
8. Government of Kenya is known to shield high profile politically correct figures from prosecution as currently demonstrated in corruption and organized crimes touching on the two Kenyans accused of money laundering and corruption in Jersey Island. Further example, despite overwhelming evidence and conviction of accomplices in the court of Britain, Government of Kenya has shielded persons behind the ‘Chicken Eating’ related to electoral materials tenders.
9. This is unwillingness and inability of the government of Kenya to prosecute masterminds of atrocious crimes, money laundering and corruption has seen the country submerged in culture of impunity, which has significantly undermined rule of law and entrapped the country in cycle of political unpredictability.
10. Looking at this broader and deeper picture, the discordant majority judges’ decision is dark cloud. Impunity prevailed.
11. Though judges did not enter acquittal and or no case to answer judgment, it is curious the reasons they used to arrive at their decision namely witness interference and political intolerance. Yet vacated the charges. Presiding Judge Eboe-Osuji says: “disturbing scale” of witness interference in the Ruto and Sang case made an acquittal a “grossly unjust” option.
12. It is unfortunate a wide part of the Kenyan population is celebrating obstruction of justice by the most politically powerful individuals in the country who have successfully been evading accountability through intimidation, blocking and manipulation of local criminal justice system.
13. The Prosecutor should appeal the decision. She can also explore possibility of returning to the Pre-trial chamber and charge the accused persons in both Kenya situation cases with less offences if she has sufficient evidence. This is crucial to the court credibility, deterrence and interest of justice.
14. ICPC fully concurs with the ICC Prosecutor that “intimidation campaign seen in this case has been methodical, far-reaching, & exceptionally well-resourced”. Judges also agreed.
15. Prosecutor must robustly apply Article 70 to unearth truth and individuals behind witness tampering and bribery. She should broaden the net and press charges against those individuals, including accused person(s) if directly or indirectly involved, on witnesses and administration of justice interference. ICC cases in Kenya situation has left legacy of systematic witness interference and killings.
16. PEV victims deserve both prosecutorial and reparative justice. Kenya has no record of prosecuting impunity. This impunity gap has embodied perpetrators of atrocious crimes, trapped country in cycle of violence affecting economic productivity certainty and pose significant threat to building sustainable peace and rule of law in Kenya.