The International Criminal Court (ICC) may have given away their judgement on the motion of acquittal filed by Deputy President William Ruto and set to be issued on Tuesday. Analysts and keen observers of the court say various actions, missteps and pronouncements of the court in the last two weeks signal continuation of the case for Ruto and his co-accused Joshua arap Sang.
The decision by Judges Chile Eboe-Osuji (presiding judge), Robert Fremr and Olga Herrera Carbuccia is supposed to determine whether the case will proceed or not. “One thing which is bizarre is that the decision is going to be given without a court hearing. Look at Article 74.5 of the Rome Statute.
The “final” decision guilty or not guilty must be delivered in open court.” Judgement of acquittal “If there is no case to answer then that would be a ‘final’ decision of sorts. The question then would be, is decision of no case the sort of decision encompassed by Article 74.5? If it is….then the conclusion would be that given it is not delivered in open court then it will not be the final,” lawyer Nick Kaufman, a former prosecutor at the Hague, told Standard Newspaper
Kaufman’s point is further reinforced by past practice of the court of issuing major decisions, final or not, in open court. Long before Wednesday’s public communication of the notice, the court through its Public Affairs Unit had categorically stated there would be no public hearing. In the notice, the Public Affairs Unit blundered on the content and had to issue a corrigendum.
Activist Ndung’u Wainaina believes the error sold away the court on the direction the decision will take. In the original notice, the unit said: “Trial Chamber V(A) is composed of Judge Chile Eboe-Osuji (Presiding), Judge Robert Fremr and Judge Olga Herrera-Carbuccia who appended a dissenting opinion.” In the amended notice issued shortly thereafter, the Unit quietly removed the part on Judge Carbuccia appending a dissenting opinion. It did not draw out the difference of the two notices. “We already know that one judge has dissented and from past pronouncements of the other two, we could safely guess it is a loss for the accused.
Besides, there are many other factors outside of that which point to continuation of the case at this point,” Wainaina said. He said other factors weighing against the accused is the special circumstances surrounding the case, like witness intimidation and prosecution’s notice to “re-characterise” the case.
He says if the case proceeds, it will not be a bed of roses for both the prosecution and the defence: “For the prosecution, a substantial chunk of the evidence was struck off by rejection of prior recorded testimony. For defence, you may want to go back to Judge Osuji’s own veiled warning on non-speculative nature of no-case-to-answer motion.” Other analysts say the outcome – whichever way it goes – will have major implications in the political scene especially in the Rift Valley where the DP has lately been facing a resurgent Kanu backed by rebel Jubilee MPs.
If the case is dropped Ruto, who is preparing to lead President Uhuru Kenyatta’s re-election in 2017, will be approaching the campaign period without the ICC hanging over his head. His freedom is a double-edged sword for Jubilee, as the ICC cases is cited as one of the key reasons the DP has stuck with Jubilee and shelved his presidential bid in 2017 in favour of Uhuru’s re-election. “If the case is dropped Ruto will be a hero and this will propel him to the presidency in 2022, but if it proceeds that is likely to cause some animosity and mistrust and make some people doubt their friendship in coalitions,” said Philip Chebunet, a lecturer at the University of Eldoret.
The ICC case galvanised support for the DP in his Rift Valley backyard and even his rivals fighting for political supremacy in the region have been careful not to antagonise the feelings of the residents. Leaders and residents in the North Rift region who spoke to The Standard on Sunday expressed confidence that the cases will be dropped, saying the two are innocent but opinion remain divided on implications of the outcome.
“We are waiting for the dropping of the case. The case will be dropped and this will allow the DP to focus more on service delivery with the president in fulfilling promises made to Kenyans within the remaining time,” Elgeyo Marakwet Senator Kipchumba Murkomen said. The senator added that any other decision than dropping the case will mean that “it was pre-determined and will hurt the relations with ICC, which the country has been honouring”. He said it will not have focused on impartiality.
Aldai MP Cornelly Serem said though he does not want to preempt the case his wish just like that of many others is that it comes to an end: “The Kalenjin community did not plan the violence. It was spontaneous reaction all over the country and Kenyans know that.” According to Alfred Keter (Nandi Hills), sympathies for Ruto will end if the case is dropped on Tuesday: “He will have nothing to hold on to; minus the case, he will have nothing to show.”