As the trial of Kenyan lawyer Paul Gicheru opens at the International Criminal Court in The Hague on February 15, 2022, speculation is rising that it could revive the ghosts of DP William Ruto’s case that crumbled six years ago.
The case prosecutor, Mr James Stewart, appears to be struggling to consolidate witnesses ahead of the trial in which he says the evidence includes over 43,524 items, totalling more than 221,110 pages of documents.
But some witnesses have since abandoned Mr Stewart while others cannot be found, forcing him to make numerous applications before the Pre Trial Chamber (PTC) seeking permission to rely on prerecorded statements and interview transcripts of the witnesses.
The case sparked debate immediately after Mr Gicheru surrendered to the Dutch authorities at The Hague on November 2, 2020, five years after the ICC issued an arrest warrant against him and his co-suspect, Philip Bett. The two are suspected to have interfered with the administration of justice.
The matter had been lying in limbo until he resurfaced and surrendered to the Dutch authorities, a development that even the State claimed had caught officials by surprise. The arrest warrant was issued in March 2015. Mr Bett is still a fugitive.
As a pointer that Dr Ruto will be a constant feature in the trial of Mr Gicheru, the Office of the Prosecutor (OTP) has since implicated DP Ruto in a scheme to interfere with witnesses.
In its trial brief dated November 22, 2021, the OTP says the bribery scheme was conducted with the full knowledge of DP Ruto, an argument that has given the matter a political angle.
“The evidence establishes that the pattern of witness interference was conducted for the benefit of, and in coordination with, William Samoei Ruto,” reads the document signed by Mr Stewart.
While the initial trial helped both Dr Ruto and Mr Uhuru Kenyatta ride on anti-ICC sentiments to power, Mr Gicheru’s case is set to spill over to the 2022 campaigns.
The court proceedings will be happening as Dr Ruto will be in the homestretch of his presidential campaigns.
Although the trial of DP Ruto and radio journalist Joshua Sang, for crimes against humanity, was terminated in April 2016 because of “witness interference and political meddling”, it is intertwined with Mr Gicheru’s case.
The parties did not appeal the termination decision. The case also involved Henry Kiprono Kosgey. ICC judges declined to confirm the charges against Mr Kosgey on January 23, 2012.
Mr Gicheru is facing eight counts of corruptly influencing witnesses in the Ruto-Sang case, which stemmed from the 2007 post-election violence.
It is alleged that he offered Sh20.4 million in bribes to eight witnesses to recant their evidence and withdraw as prosecution witnesses.
The corrupted witnesses are code-named in court filings as P-0397, P-0516, P-0613, P-0800, P-0495, P-0536, P-0341 and P-0274.
In the Ruto-Sang case, prosecutors had relied on the testimony of witnesses P-516, P-800 and P-495 to prove claims of a criminal network that organised the training of youths. But the rejection of their testimony following the alleged interference weakened the case.
Witnesses 800 and 495 worked for the same organisation that compiled evidence of the post-election violence, presumably an NGO.
The witnesses were central to the case but judges disregarded their testimony when their credibility became questionable.
One of the pillars of the Ruto-Sang case was the testimony of a woman on which stood the prosecution’s allegation that there was a war network.
It was alleged that the network established and utilised a communications system through which Dr Ruto and others directed and received reports from direct perpetrators carrying out the attacks.
The woman, code-named in court filings as P-0613, testified about a conversation she had with an acquaintance, a youth, who participated in an attack on Turbo town in January 2008.
“This person told her that Christopher Kisorio, Solomon Tirop and Farouk Kibet were in charge and were receiving directions from Ruto. The witness understood that these directions were sent in text messages. Her acquaintance, who reported to Tirop, had told her that Ruto would send Tirop messages containing messages such as ‘where are they’, and ‘how far have they gone’,” court papers state.
Justice Robert Fremr, in the verdict that the pair had no case to answer, said on April 5, 2016: “Similarly, witness 613 assumed that the directions Ruto was allegedly giving to Kisorio, Tirop and Kibet were to be passed on to the youths, but did not explain the basis for this assumption. It is therefore noted that witness 613’s testimony as to the meaning of the text messages and the fact that they were passed on to youths is mere speculation.”
To withdraw her evidence, she was allegedly offered by Mr Gicheru a bribe of an amount that was subject to negotiation.
Another witness, P-0800, said he witnessed first-hand, from his home, youths leaving in lorries.
He even claimed to have spoken to some, who he said provided him with details of the three-week training camp on a farm in Boronjo, Uasin Gishu County.
According to the court papers, Mr Gicheru used witness P-0397 to locate, contact and corruptly influence other witnesses. He was corrupting the witnesses on behalf of the Common Plan Members.
The charges indicate that he threatened and offered witness P-0397 a bribe of Sh5 million to be paid in instalments and actually paid Sh1 million.
Witness P-0516 was offered a bribe of Sh800,000 but was paid Sh500,000, while witness P-0800 was offered a bribe of between Sh1.5 million and Sh2.5 million in order to influence him to withdraw as a prosecution witness and to locate and corruptly influence other witnesses, including P-0495 and P-0613.
After being located, P-0495 was offered a bribe of between Sh1.5 million and Sh2.5 million and a job, while P-0536 was offered a bribe of between Sh1.4 million and Sh1.6 million.
Regarding witness P-0341, Mr Gicheru offered to pay him Sh5 million and other financial benefits. He was actually paid Sh1 million in exchange for withdrawing the evidence.
For witness P-0274, he was promised at least Sh2 million and was intimidated and threatened multiple times, including at gunpoint. He was paid Sh30,000 to induce him to withdraw.
If Mr Gicheru is found guilty, he faces up to 40 years in prison, as each count attracts a term not exceeding five years, according to Article 70(3) of the Rome Statute.
