There has been speculation that the lawyer could strike a deal to testify against the DP, providing fresh insights into the 2007/08 post-election violence that caused the deaths of more than 1,200 and displaced hundreds of thousands.

In an interview with Nation.Africa, lawyer Evans Monari, who represented former police commissioner Hussein Ali at the ICC in The Hague, said Mr Gicheru made a mistake by going to the ICC without notifying the High Court of Kenya, which had issued an order barring the state from handing him over to the ICC.

“Gicheru was under the protection of the state but he decided to defy a court order that the government had obtained for him not to be handed over to the ICC,” said Mr Monari in an extensive interview with Nation.Africa on phone.

Mr Gicheru, whose warrant of arrest was issued in March 2015, faces a maximum of five years in prison, a fine, or both, if found guilty.

To seek asylum

According to Mr Monari, Mr Gicheru does not need to seek asylum after the government said it would not cooperate with The Hague on his cause. He, however, has a herculean task of convincing the state that he will abide by the local laws.

Mr Monari observed it is not easy for the government to cooperate with the ICC on the lawyer’s case, arguing that if he is released, the state might remain in the darkness on his whereabouts.

He clarified Mr Gicheru can still regain the government’s goodwill by letting the High Court know what motivated him to surrender and disclosing the details of his whereabouts if released.

“The government will have to get more assurance from him and the ICC that he will not escape again if released because he actually escaped from the country when he surrendered,” he said.

Unlike six Kenyans who appeared before the ICC on crimes against humanity following the 2007/2008 post-election violence, Mr Gicheru will have to give concrete assurances that he will be able to appear in court when required, with the knowledge of the government.

“Mr Gicheru is a Kenyan citizen and there is no need for him to seek asylum anywhere. Kenya has not taken away his citizenship, hence he is entitled to protection by the government, but he has to do something about it,” said Mr Monari.

“He has to provide concrete assurance to the government on his whereabouts at all times. He should not behave like a fugitive.”

The lawyer argued that proper handover should be done by the government, on the understanding that after taking plea, Mr Gicheru could be granted provisional release allowing him to travel back and forth to The Hague.

“It’s just as it was in the case of Kenya one and two, where the accused went to the ICC, were given a provisional release and attended all the proceedings. However, in Gicheru’s case, he needs to be assigned a team of lawyers and assistants by the ICC to help him,” said Mr Monari.

Legal representative of victims

The legal representative of victims in the DP Ruto and journalist Sang case, Mr Wilfred Nderitu, said it is likely Mr Gicheru was haunted by the pressure wrought on him by the ICC warrant, irrespective of his innocence or guilt, and was not necessarily out to fix anyone.

"Irrespective of the situation, he wanted to clear his name. He probably has some evidence that he would want to give either in terms of pointing fingers at whoever may be involved in the interference of witnesses or he just wanted to clear his name," Mr Nderitu.

"I want to imagine that despite fighting very hard in court and eventually the court saying he should not be surrendered, he must have come to the realisation that the High Court order did not invalidate the ICC arrest warrant, which meant his travels were still going to be much restricted. He must have realised he has a long way to go because as a lawyer you must have businesses within and without Kenya, so he had to surrender so that the process could start and end at some point."

Mr Gicheru told the ICC he surrendered voluntarily and was not under pressure from anyone.

“I was not coerced into coming here. I came of my own volition and met all the expenses for my travel,” Mr Gicheru told the court.

Following the collapse of the post-election violence cases at the ICC, President Uhuru Kenyatta in 2016 vowed he would not allow another Kenyan to be tried by The Hague court. 

Moreover, in the lead-up to the collapse of the post-election violence cases, ICC prosecutor Fatou Bensouda had had a fraught relationship with the government of Kenya, which she accused of failing to cooperate with her office as required of a member state.

“For now, what Kenya is saying is not that it will not cooperate with the ICC in terms of evidential matters and trials, but the government will not cooperate with The Hague-based court on the release of Mr Gicheru provisionally. It will not be party to keep him because he is not within,” said Mr Monari.

“Mr Gicheru has not made any agreement with the government, having jumped the High Court orders,” he added.

In a letter to ICC presiding judge Reine Adélaïde Sophie Alapini-Gansou, Attorney-General Kihara Kariuki said Mr Gicheru went against “a binding decision” of the High Court of November 16, 2017 that had frozen the ICC’s arrest warrant against the lawyer and his co-accused Phillip Bett on allegations of interfering with witnesses.  

To notify the High Court in Nairobi

Mr Kihara further said Mr Gicheru violated the International Crimes Act, which required him to notify the High Court in Nairobi before surrendering to the ICC.

Political goodwill is necessary, Mr Nderitu affirmed, because the summoning and processing of witnesses, issuance of passports, their travel arrangements and other related logistics “operate within a political environment”.

"The ICC draws legitimacy and operationalisation from what the government of the day is going to do. If they are dealing with just an ordinary citizen, it is easy to be charged and for the matter to go the whole hog. But if you are talking about someone in power and at that level, and that political goodwill is not forthcoming, then the court is completely shackled," said Mr Nderitu.

The culmination of a five-year battle with the ICC and the Kenyan authorities, including a November 2017 ruling by High Court Judge Luka Kimaru quashing a local warrant of arrest by Kenyan authorities to hand Mr Gicheru and Mr Bett to the ICC, the surrender by Mr Gicheru baffles many, as he was not under any pressure to surrender.

Additionally, he had a valid High Court order protecting him from arrest in Kenya for onward transmission to The Hague court.

"The minute the High Court invalidated the Kenyan warrant of arrest, for all intents and purposes, Gicheru and Bett were free men," the victims' lawyer explained.

Came as a surprise

According to lawyer Katwa Kigen, the surrender of Mr Gicheru came as a surprise, as they were never given a notice.

“For DP Ruto and Mr Sang, the surrender of Mr Gicheru just happened, we had no notice,” he said.

Mr Kigen said it was too early for their clients to decide on what to do next, arguing it would take time for the duo to have a position on the matter.

“Being so recent and yet to unfold, they will in the course of time apply their minds to it, consult and then take a position,” Dr Ruto’s lawyer told the Nation.Africa.

Mr Gicheru’s brother Steve Mugo, who is in charge of the lawyer’s Eldoret-based law firm, said they were yet to get a word from him but exuded confidence he will be released soon.

“He has not communicated to us since he left the country and we hope all is well and he will be getting back very soon,” he said.

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