With a little help from the ICC’s Appeals Chamber, Fatou Bensouda might just have gotten a way to make Ruto and Sang’s Rule 68 victory short lived.
“Joy as Ruto wins big at The Hague”, trumpeted the front page of The Daily Nation last Saturday, accompanied by a photo of a beaming William Samoei arap Ruto. There was reason to be joyful. Judges of the ICC’s Appeals Chamber had just the day before handed him and his co-accused Joshua Sang a big victory. It quashed the Trial Chamber’s decision to allow prior recorded witness testimony to be used in their case. ICC Chief Prosecutor Fatou Bensouda’s much-hyped Rule 68 gambit had imploded.
The echo chamber of Kenya’s social media scene – staying true to form – reacted with a meme-heavy mixture of posts expressing disappointment for PEV victims and those bashing the ICC for still being on Kenya’s case. “Kenya (not just Ruto and Sang) had defeated the ICC” was a popular sentiment, to which one commentator replied that “the victims are Kenyans too”.
You get the gist. Kenyans online are of two minds about the ICC but, right now, the anti-ICC crowd is having an easy time outshouting everybody else.
Reactions have also been streaming in from the political front. Opposition leader Raila Odinga claims the Rule 68 decision absolves his party of all accusations of framing Ruto. Meanwhile, Kipchumba Murkomen, one of Ruto’s most loyal political surrogates, thinks it’s time to pop open some champagne. “We are more than confident that the case has come to an end”, he said. Attorney General Githu Muigai, meanwhile, demonstrated that he’s not above a little schadenfreude at Fatou Bensouda’s expense, telling The Daily Nation that “if the Rome Statute was open to the whims of the ICC prosecutor, it means fewer and fewer countries would be willing to be signatories.”
A fair few observers and commentators in Kenya, however, feel it’s probably a good idea for Murkomen – and others similarly inclined – not to break out the champagne just yet. One such conscious observer has been lawyer George Kegoro. Kegoro, the executive director of the Kenyan Human Rights Commission (KHRC), has in recent years distinguished himself as perceptive and erudite columnist for The Daily Nation, particularly on matters regarding Kenya’s messy and acrimonious entanglements with the ICC.
According to Kegoro, it’s noteworthy that the ICC Appeals Chamber, in rejecting the use of Rule 68 in the Ruto and Sang case, did not give any weight to the prosecutor’s claims that the witnesses were interfered with. “The dismissal of the evidence signifies genuine problems regarding the gross interference with witnesses in the Kenyan cases before the Court which have remained unaddressed”, he writes. He says just because it didn’t matter to the Appeals Chamber doesn’t mean it won’t matter to the judges of the trial chamber who are currently considering Ruto and Sang’s “no case to answer” motion.
Kegoro says a measure of how seriously the trial chamber judges take the accusations of witness interference in the Kenyan cases can be seen in the number of arrest warrants they have issued in connection to this issue. He also says Kenya’s delay in actually arresting people highlights the Kenyan state’s role in frustrating the ICC process.
Kegoro’s sentiments are echoed by his colleague at ICJ-Kenya, Stella Ndirangu, who this week told The Standard that “the fact that the trial chamber especially Judge Osuji had gone a great length to analyse how a scheme of intimidation existed is significant. This will of course not be wiped off their minds just because of the appeal decision. They may not write about it in their decision but I think they will consider it.”
Courtesy of lawyer Nick Kaufman, The Standard piece also teases another reason why Bensouda’s case against Ruto and Sang is not as dead as their supporters would like to believe. According to Kaufman, while overturning the application of Rule 68, the appeal court judges last week hinted that a more appropriate route for the prosecutor would have been to use Rule 69(3). Kaufman says this provision of the Rome Statute offers an appeal-court-tested gambit for Bensouda to use if she has her heart set on using the prior recorded witness statements against Ruto and Sang:
“Whether this would be viewed as cherry-picking the positive aspects of the Rule 68 framework and discarding the duff remains to be seen. It is not clear whether Ruto is out of the woods just yet or whether the Appeals judgment will come back to haunt him.”
The tick, tock to the 2017 election
Kenya, placid on the surface but still as combustible as ever, awaits the 2017 elections. Just like it tipped the election in the Jubilee coalition’s favour in 2013, the ICC issue is destined to play a big role next year. Ruto and Sang are understandably over the moon right now, but last Friday’s ruling must have come as sweet relief for at least one other person: President Uhuru Kenyata.
There’s been some strong signals from Ruto’s Rift Valley backyard that they expect their man to be free of his ICC shackles if Kenyatta wants to get any share of the Kalenjin tribe’s vote. Kenyatta knows he has to play ball. Kegoro says the ICC Appeals Chamber “humoured” the African Union (AU) more than it needed to by giving it amicus curiae status in the Ruto and Sang appeal. For Kenyatta, the takeaway from last Friday is putting political pressure on the ICC – either through the AU or otherwise – works. Because his political future depends on it, we should expect more of the same from Kenyatta.
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