Why Gicheru’s ICC ruling is bad news for Deputy President William Ruto

Bernice Mbugua @BerniceMuhindi

The ghosts of Deputy President William Ruto’s case at the International Criminal Court (ICC) could return to haunt him after judges confirmed a case against a lawyer accused of interfering with witness in his matter.

ICC pre-trial judges yesterday committed lawyer Paul Gicheru for trial for obstructing administration of justice.

The lawyer, who surrendered to the court last year, is accused of bribing and intimidating witnesses with the aim of frustrating the prosecution of the case against Ruto and radio journalist Joshua arap Sang on the 2008 post-election violence, leading to its collapse in April 2016.

“The chamber found that there are substantial grounds to believe that Mr Gicheru committed, as a co-perpetrator, or under alternative modes of liability, offences against the administration of justice between April 2013 and the closure of the Ruto and Sang case on 10 September 2015, in Kenya,” said the ICC in a statement announcing the decision yesterday.

While announcing the collapse of the Ruto-Sang in April 2016, the ICC ruled that there was insufficient evidence to convict the two, but it refused to acquit them.

In a split ruling, one judge declared it a mistrial because of a “troubling incidence of witness interference and intolerable political meddling”.

Then ICC Prosecutor Fatou Bensouda acknowledged that the loss of witnesses had weakened the case against Ruto – but she argued there was still enough evidence to proceed with the trial.

It would be noted that while collapsing the case, the judges gave a window that it could be re-opened in case the prosecution gathered sufficient evidence to sustain a trial against Ruto and Sang.

“The majority of the chamber, having concluded that the prosecution did not present sufficient evidence on which a reasonable Trial Chamber could convict the accused, also concluded that a judgment of acquittal was not the right outcome, but only vacation of the charges and discharge of the accused,” they ruled in 2016.

Yesterday, the pre-trial judges said the ICC prosecutor had sufficient evidence to sustain Gicheru’s trial for interference of witnesses in the Ruto-Sang case.

“Specifically, with relation to eight witnesses, Mr Gicheru and other members of the common plan allegedly identified, located, and contacted the witnesses, offered or paid them financial or other benefits, and/or threatened or intimidated them, in order to induce them to withdraw as prosecution witnesses, refuse to or cease co-operating with the prosecution and the court, and to recant the evidence which they had provided to the prosecution,” the judges said.

Common plan

“The offences were allegedly committed in the furtherance of a common plan implemented by a group of persons including Mr Gicheru, with the ultimate goal of undermining the prosecution’s case in the Deputy President William Ruto and former radio presenter Joshua Sang,” said the court.

The Pre-Trial Chamber A, which was composed of Judge Reine Adélaïde and Sophie Alapini-Gansou, based its decision on the evidence and submissions presented by the prosecutor and the defence.

Charges are against article 70(1)(c) of the Rome Statute. In these cases, parties do not have the possibility to appeal a decision on the confirmation of the charges under Article 82(1)(d) of the statute.

The Pre-Trial Chamber, however, noted that the decision on the confirmation of the charges only serves to determine whether the prosecutor’s case should proceed to trial.

“It does not establish the guilt of the accused person, who is presumed innocent until proven guilty beyond reasonable doubt by a trial chamber of the court,” read the statement.

A senior lawyer who was involved in the ICC cases told People Daily on condition of anonymity that “the outcome of the Gicheru case, if a conviction is given, will be a vindication of the Prosecutor’s pleadings in the Ruto case”.

The pleadings were that witnesses in the case were bribed and intimidated not to participate in the proceedings or to recant their statements.

“The fact that the judges confirmed Gicheru’s case means that prosecution presented material touching on the Ruto case and at core is the adverse argument on interference of witnesses in a manner calculated to help a suspect escape justice. The DP’s charges were only vacated but he was not acquitted,” said the lawyer.

The ICC had issued an arrest warrant  against Gicheru and Philip Kipkoech Bett under seal on March 10, 2015, and unsealed it on September 10, 2015, for offences against the administration of justice consisting of corruptly influencing witnesses of the court.

On November 2, 2020, Gicheru surrendered to the authorities of The Netherlands and was surrendered to ICC custody.