Gicheru trial continues without fanfare witnessed in main cases

For three weeks, Kenyan lawyer Paul Gicheru has been in The Hague as his trial for alleged witness tampering proceeds. The buzz that characterised the earlier cases involving President Uhuru Kenyatta and William Ruto is all but gone.

On February 15 when the trial started, the public gallery, which was once full during the main Kenyan cases, was largely empty, save for Mr Gicheru’s wife and a handful of journalists. On occasions, students from nearby universities drop by to listen briefly and then leave. 

Even the international community that keenly followed the cases involving the President and his deputy seem to have developed little interest in the Gicheru trial.

“Looking at what is happening, the international community was more interested in the post-election violence case than a case of witness tampering. Cases of witness tampering or what is legally called offences against the administration of justice are more interesting to the court itself because the alleged offences affected the court directly. It is more internal,” says Dr Thijs Bouwknegt, a Dutch researcher and former journalist who has monitored the Kenyan cases.

Dr Bouwknegt says the invasion of Ukraine by Russia has also meant that the world’s attention has been directed to the European country. The invasion started on February 24, just nine days after Mr Gicheru’s trial started. 

“This case could vindicate OTP [that the case against Mr Ruto collapsed because of witness tampering] if they can secure a conviction. It is important, but I don’t think many people are interested,” says Dr Bouwknegt.

Lawyer James Mamboleo, a senior partner at Nyamweya Mamboleo Advocates, says Mr Gicheru’s public stature and the ongoing political campaigns have dimmed interest in the case.

“Naturally, the stature of the person involved in a case determines the amount of public interest it is going to have. Paul Gicheru is not like Uhuru Kenyatta and William Ruto. He doesn’t have a big constituency like these two,” said Mr Mamboleo.

Post-election violence

However, he says the case has the potential of shedding light on what happened behind the scenes.

“My view is that it is an important case. It would help in connecting some of the dots in some issues that were a bit hazy in the earlier case. But right now, Kenya’s domestic environment is too overwhelmed by the intense politics of the moment for Kenyans to give it the kind of attention you would expect. Eventually, it will count for something.” 

Between 2011 and 2016 when the main post-election violence cases were taking place, the International Criminal Court (ICC) in The Hague was confronted by a scene they had not seen before since the court was established. 

“An international crowd of diplomats, politicians, human rights activists, experts, journalists, lawyers and observers …Most of the visitors are Kenyans who have taken the plane to The Netherlands …,” journalist and author Tjitske Lingsma says in her book, All Rise, which is about the ICC. 

A steady stream of MPs and supporters of the suspects travelled to The Hague during the initial appearances, confirmation of charges and trial, the latter in the case against Mr Ruto and journalist Joshua Sang. These groups that travelled with Mr Ruto to The Hague are no longer there. 

And while the court had appeared lenient with the suspects in the main cases insofar as speaking to the media was concerned, the terms of Mr Gicheru’s conditional release expressly bar him from, “directly or through any other person”, making any public statements, social media post, or communicating with the media about the case. 

When he granted an interview upon his return to Kenya in February 2021, the court promptly reminded him that “the conditions set out in the Interim Release Decision have to be fulfilled by him at all times.”

For Mr Gicheru, it could be a lonely and boring stay by now, with most of his time being spent at the court, at the hotel where he is staying, and with his legal team, led by American Michael Karnavas, who says he will only speak to the media after the proceedings have ended.

Liars and flip-floppers

The start of the case coincided with the onset of two storms, Dudley and Eunice, that hit The Netherlands and Western Europe with winds of up to 130km per hour and temperatures as low as 4°C.

Mr Gicheru surrendered to the ICC in November 2020 in fulfilment of a warrant of arrest against him issued in 2015. The prosecution alleges that he corruptly influenced witnesses who were to testify against DP Ruto to withdraw, thereby scuttling the case the court had against the DP, accusations Mr Gicheru denies.

So far, five prosecution witnesses have testified known by their pseudonyms as P-0800, P-0341, P-0613, P-0274 and P-0738, the latter having done so in a private session on Thursday. A new witness, P-0730, will testify tomorrow. Among the evidence the witnesses have presented are call recordings and phone messages with people said to have been acting for Mr Gicheru.

For his part, Mr Gicheru, through his legal team, has sought to portray the witnesses as liars and flip-floppers who are incapable of being trusted to get a conviction. Some of the witnesses have also attempted to draw Mr Ruto into the mix as the source of money and other enticements they received through Mr Gicheru to withdraw their testimonies.

“After our talks with Mr Gicheru, it did not take long, probably just two weeks, when I met [with] him again. I think the two weeks was to brief Mr Ruto because I was later told that he had only approved that I get Sh2 million and a farm, a plot of land and a car,” witness P-0341 said. 

“The person who gave the final approval of what I had demanded was William Ruto.”

There is still no indication as to how long Mr Gicheru will continue staying in The Hague, but the trial chamber had already directed the defence to “formally indicate by March 10, 2022, whether it intended to present evidence.”

“Should the defence wish to make an opening statement, it is to indicate this as well,” trial judge Miatta Maria Samba directed on February 25, which could signal that the presentation of the prosecution’s evidence may be coming to an end soon.

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