Fatou Bensouda: How William Ruto scuttled poll violence case

In what is reminiscent of the post-election violence case against the Deputy President, when prosecution alleged existence of a network that planned or executed the violence, the prosecutor now says there was a “common plan” to corruptly influence witnesses she had lined up against Dr Ruto.

In the Friday filings, Ms Bensouda says Dr Ruto headed the common plan aimed at benefitting him by scuttling the case.

“The evidence establishes that the pattern of witness interference... was conducted for the benefit of, and in coordination with, William Samoei Ruto,” the prosecutor says.

The ICC trial chamber terminated crimes-against-humanity charges against Dr Ruto and journalist Joshua Sang on April 5, 2016. The decision to terminate the case, the ICC said, was as a result of massive interference of witnesses, political meddling and weak prosecution evidence as a result of the tampering.

Bensouda: Ruto and Sang cases still alive

At the time, the judges said there was no evidence of the personal involvement of either the Deputy President or Mr Sang. Both the accused have maintained their innocence over the matter, and these new accusations, grave as they are, add no prosecutorial value to the already terminated case.

Some of the intermediaries reportedly informed the witnesses that the money to bribe them had been handed out by the Deputy President through lawyer Paul Gicheru. Proving the allegation will, however, be Mr Gicheru’s word against the witnesses as there are no records of cash transfers as the monies were allegedly paid out in cash.

The common plan, the 161-page prosecution document says, was done in coordination with Dr Ruto. Mr Gicheru, who surrendered to the court in November 2020, is said to have been the manager of the plan and had intermediaries consisting of Mr Silas Kibet Simatwo, who chairs the board of Amaco Insurance; Mr Isaac Maiyo, who was the former chairman of the Constituencies Development Fund (CDF) of Eldoret North Constituency; and former Turbo MP Elisha Busienei.

Mr Simatwo is variously described in the prosecution documents as “an influential Kenyan businessman and long-time business associate of Ruto”, and “an eye of Mr Ruto”.

“Simatwo, Maiyo and Busienei also made essential contributions to the common plan inter alia by working with Gicheru to coordinate with Ruto, and participated in meetings between Gicheru and prosecution witnesses during which they were corruptly influenced. In some instances, these other managers contacted prosecution witnesses telephonically in furtherance of the common plan,” the prosecution says.

The “common plan” that Ms Bensouda is referring to in the documents is the eventual scuttling of the cases in The Hague through witnesses tampering or harassment. This cabal around Dr Ruto, the documents claim, had that stated mission of freeing the Deputy President.

Specifically, the ICC prosecutor accuses Mr Gicheru of corruptly influencing witnesses who were set to testify against Dr Ruto by paying bribes and drawing the affidavits they used to recant their testimonies to the ICC.

During his initial appearance in 2020, Mr Gicheru denied the charges against him. “I wish this to go on record, that I do not intend to admit the charges under Article 65, so I wish to state, for purposes of clarity, that the allegations read out to me are not true,” he said on November 6, adding: “They are false, all of them, the six of them are false.”

All indications last evening were that his defence team was preparing to counter the accusations against him in their written submissions. Mr Gicheru notified the court on Thursday that he would not be filing his list of evidence. The prosecution has, however, applied to have the pre-trial chamber order the defence to file “a list of the specific items of evidence upon which it will rely in its written submissions for the confirmation proceedings, by no later than 12 April, 2021”.

Read: Two Kenyans wanted by ICC for witness tampering

“The Prosecution submits that a proper reading of the Chamber’s order reveals that, while the disclosure of evidence by the defence is optional, the filing of the list of evidence is not,” Ms Bensouda said in the filing yesterday.

Below the manager and intermediaries was yet another group that the prosecutor alleges provided the link between the prosecution witnesses and the manager, as well as the first group of intermediaries. This group allegedly had the other two Kenyans wanted by the ICC, namely Walter Barasa, Philip Bett, murdered defence witness Meshack Yebei and Sammy Kiptanui Kosgei.

“The intermediaries consisted of current or former prosecution intermediaries or witnesses who, by virtue of their past association with the prosecution and knowledge of, or association with, prosecution witnesses, were in a unique position to identify, locate and persuade prosecution witnesses to withdraw as witnesses and/or meet with Gicheru and other managers,” says Ms Bensouda.

The last level in the plan, the prosecution says, was the successfully corrupted witnesses who became intermediaries and were deployed to reach out to witnesses who were still cooperating with the ICC and tell their personal stories of changed fortunes after the ceased cooperation with the court. They are witnesses P-0397, P-0800, P-0495, P-0516, and P-0341, “who subsequently also acted as intermediaries and helped to further the objectives of the common plan”.

The prosecution says that the common plan materialised by April 2013 and continued until at least the close of the Ruto-Sang case on September 10, 2015.

“The existence of the common plan can be inferred from the statements and actions of the common plan members, which clearly demonstrate that they were working in a concerted manner to achieve the common goals,” says Ms Bensouda.

According to the evidence against Mr Gicheru, most of the witnesses were targeted shortly after the prosecution revealed their identities to Dr Ruto’s defence team. The witnesses would be approached by individuals who were previously cooperating with the court and who in some instances were the ones who introduced them to the prosecution.

Dr Ruto’s defence team was led by British lawyer Karim Khan, who is the prosecutor-elect of the ICC. He will take over in June following the expiry of Ms Bensouda’s term.

“The evidence establishes that Gicheru and associates engaged in concerted efforts to identify, locate and contact prosecution witnesses and then to corruptly influence them to withdraw as prosecution witnesses, recant their evidence, and/or to identify, contact and corruptly influence other prosecution witnesses,” the prosecution’s evidence states.

Witness P-0397, for instance, was allegedly approached by Mr Gicheru and others whose identities have been redacted but believed to be the intermediaries who previously cooperated with the prosecutor. The intermediaries reportedly delivered P-0397 to Mr Gicheru’s office where negotiations for a bribe took place. The bribe, however, would come back to haunt P-0397 as the prosecution’s evidence states that he complained that “the money he had received seemed to have caused his problems”.

As with witness P-0397, the other seven were also approached by people who were known to them and in some instances had introduced them to the ICC. Other witnesses said to have been corruptly influenced are P-0341, P-0516, P-0495, P-274, P-0613, P-800 and P-0536.

In some instances, these intermediaries followed the witnesses on their radar to third countries to convince them to return to Kenya and cease cooperating with the ICC prosecutor.

According to Ms Bensouda, the ICC was initially welcomed in Kenya but that support evaporated once the identities of the initial Ocampo Six were revealed.

“Influential politicians, Kenyan media outlets, and social media campaigns collectively rallied public and political opinion against the court and its perceived supporters within Kenya,” Ms Bensouda says.

The prosecutor states that the anti-ICC sentiment was strong in the Rift Valley, Dr Ruto’s home region and political base where persons cooperating with the ICC were seen as traitors.

According to her, the offences with which Mr Gicheru is charged “formed part of the greater pattern of interference of witnesses... and contributed significantly to the vacating of the charges, resulting to a gross miscarriage of justice and a failure of justice for the PEV victims”.

The prosecution’s evidence also states that there were threats and intimidation where there was resistance from the witness. For instance, Witness P-0516 told investigators that he and P-0397 accepted the bribes on offer for fear that “these people might come after us”.

Mr Gicheru has been charged with eight counts of corruptly influencing prosecution witnesses.

[email protected]