ABDULLAHI : Why Ruto should be happy ... and worried

Deputy President William Ruto (Centre) arriving at the ICC where he is facing trials alongside journalist Joshua Sang on October 22, 2013. Photo/BILLY MUTAI

In Summary
For the last two months since the hearing started, the prosecution has called its first five witnesses.
For both the parties to the proceedings, the court itself and the general public all have, as a result of the evidence adduced so far, formed some preliminary views about the nature of the evidence and the general trajectory of the case itself.

By Ahmednasir Abdullahi
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The trial of Deputy President William Ruto by the International Criminal Court (ICC) in The Hague is at a crossroads.

For the last two months since the hearing started, the prosecution has called its first five witnesses.

The evidence adduced so far and the cross-examination of the witnesses by the defence team raises a number of positive and negative indicators for the entire trial.

For both the parties to the proceedings, the court itself and the general public all have, as a result of the evidence adduced so far, formed some preliminary views about the nature of the evidence and the general trajectory of the case itself.

And it is here that Ruto should be happy and worried at the same time.

Happy, because there isn’t a smoking gun or a smouldering scene according to the evidence adduced by the prosecution.

Worried, because the game plan of the prosecution, even after hearing its first five witnesses, still remains opague.

FIVE WITNESSES

The prosecution has called the evidence of five witnesses.

Usually the prosecution calls its best and strongest evidence at the start of the case.

It lays the foundation of its case, builds its central pillars, and then draws the outer limits of the general contours of its case.

The prosecution, at the very early stage, then tries to make a quick and deliberate impression on the judges, the defence team and even the general public.

So usually the first witnesses are critical.

The five witnesses in the Ruto case have not followed this pattern. In fact, none has adduced any useful evidence against Ruto. And all were literally destroyed under cross-examination.

It is fair to say that the evidence they adduced is not material in proving any of the charges against Ruto. If this pattern of non-material evidence continues, then a lot of credence will be given to the widely held view that the cases were not properly investigated by the prosecutor and that the trials are for purely political ends.

If this pattern of evidence continues, worries and satisfaction on the part of Ruto and his legal team will accordingly increase at both ends.

From the viewpoint of a typical criminal trial, Ruto and his team will have great hope that the case should be dismissed quickly.

They must be asking themselves: why doesn’t the prosecution call time on the trial?

ONE MAY ASK

With the evidence of five witnesses, why should Ruto be worried, one may ask?

The answer is simple. If the best prosecution witnesses are the five witnesses whose testimony is now on record, then the pertinent question is: why does the prosecution with such poor quality of evidence proceed with the case?

Remember it is on the basis of this very evidence, which looks both shallow and irrelevant, that the charges were confirmed against Ruto and the prosecutor initially authorised by the court to investigate the case.

This is where the real worry lies. The court is familiar with this very evidence. It has heard it before and liked it!

The legal thresholds of the trial and the previous facets of the case are, of course, different.

But let us appreciate that the judges have seen, heard and variously ruled in favour of the prosecutor on the basis of this very evidence we are hearing as members of the public.

Taking into account the historic totality of the trial and the poor quality of the evidence, there is a very strong impression that we are witnessing a political show trial and not a legal trial.

It seems the prosecutor’s evidence is simply geared to satisfying the threshold of a low political standard because the evidential value of the evidence so far from a legal point of view is useless.

It is both scant and irrelevant. But where is the prosecutor going and to what end?

Ahmednasir is the publisher, Nairobi Law Monthly macalin91@gmail.com