The ICC announced that the decision “will be notified only in writing; no hearing will be held.”
Deputy President William Ruto and Joshua Sang' at ICC at the Hague. Deputy President William Ruto’s defence team remained tight-lipped two days to the crucial no-case-to-answer decision at the International Criminal Court (ICC) which is expected to have far-reaching implications. PHOTO| REBECCA NDUKU | DPPS
Deputy President William Ruto’s defence team remained tight-lipped two days to the crucial no-case-to-answer decision at the International Criminal Court (ICC) which is expected to have far-reaching implications.
The ICC last Wednesday announced that the decision “will be notified only in writing; no hearing will be held.” The decision will be filed by 6 pm Kenyan time on Tuesday.
Mr Ruto and former radio journalist Joshua Sang are accused of crimes against humanity consisting of murder, deportation or forcible transfer of population and persecution, allegedly committed during the 2007/2008 post-election violence.
Like the January 2012 confirmation of charges decision, the no-case-to-answer ruling carries a lot of significance. The trial opened on September 10, 2013.
A finding that he has a case to answer would see Mr Ruto remain under the ICC shackles perhaps into the 2017 election year.
But if the trial judges Chile Eboe-Osuji, Robert Fremr and Olga Carbuccia uphold the acquittal application, it will be the end of the post-election cases that started with the naming of six Kenyans.
Mr Katwa Kigen, who represents Mr Sang, said Tuesday will either mark the end of the case or introduce the second phase.
“Even if it is the second phase, we had also asked the court whether there are some issues we should not respond to in light of the rejection of the recanted evidence (by the Appeal Chamber),” Mr Sang said.
Mr Kigen, however, remained hopeful that the judges will end the case.
Mr Kigen, however, remained hopeful that the judges will end the case.
“Although they had the recanted evidence, the prosecution case was shaky and in light of the exclusion of recanted evidence, we are convinced that the innocence of the accused has become more apparent,” said Mr Kigen.
British lawyer Karim Khan, who represents Mr Ruto, declined to comment on the impending decision.
FUTURE OF WITNESSES
Whichever way the decision goes, it will also be expected to address the future of protected witnesses, especially if the case is thrown out. At least 29 witnesses who testified are under the court’s protection and will remain so until the court determines otherwise.
The aftermath of the decision could also open the question on the confidential document containing details of the charges.
In President Uhuru Kenyatta’s ICC case, which was withdrawn in December 2014, the victims’ lawyer Fergal Gaynor convinced the court to order the publication of the charges and the evidence Prosecutor Fatou Bensouda intended to use before the case was terminated.
Mr Sang submitted his no-case-to-answer request on October 23 and Mr Ruto followed suit three days later seeking to terminate the post-election violence charges against them.
The trial judges also received the Prosecutor’s observations on November 20, 2015 and a response of the victims’ legal representative Wilfred Nderitu. Oral hearings for the same were also held from January 12 to 15, 2016 in The Hague.
The excusal of the two accused from travelling to The Hague for the no-case-to-answer decision has also been received well in the defence camp though a cautious Mr Kigen said he would be hesitant to attach any meaning to it.
ACCRA EVENT
But speculation on how the decision could go also came from an event in Accra, Ghana, between March 16-18.
A senior ICC prosecution official present at the Ghana Institute of Management and Public Administration (GIMPA) Law Conference is reported to have suggested to a group of civil society representatives the prosecution was not expecting the Trial Chamber to let the case continue.
The theme of the GIMPA Law Conference was, The ICC and Africa: A discussion on Legitimacy, Selectivity, Fairness and Accountability and was attended by practising lawyers, law students, academics and several others from across Africa.
Senate Deputy Majority Leader Kipchumba Murkomen, a close ally of Mr Ruto, hinted at the expectations within the Ruto camp.
“We are not prepared for any other decision. We only have one mind that there is no case to answer as a demonstration of a working judicial process,” Mr Murkomen said.
But it is Mr Murkomen’s subsequent remark that is quite telling of the feeling within the Ruto camp.
“Any other decision will be an indictment on the ICC and will be the beginning of non-co-operation with the ICC. We will not co-operate with the court,” Mr Murkomen said
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