Why Ruto’s ICC case will collapse or stand on these five pillars

Five key issues flagged out at the International Criminal Court hearings this week stand in the way of immediate freedom for Deputy President William Ruto and his co-accused Joshua arap Sang.

At the status conference held to discuss the no-case-to answer motion which ended on Friday, defence counsels, prosecutors, victim’s lawyer and the ICC judges haggled about them hours on end. The judges have now settled down to determine them in a ruling that may come before Easter or much earlier.

Legal minds who attended or participated in the conference say how the judges resolve the question of necessity of “organisational policy” in proving crimes against humanity, criteria for accepting the prosecution evidence in relation to defense’s and the standard of proof adopted at this stage will have a huge bearing on the outcome of the motion.

Other issues carrying the weight of the motion are resolution of the extent to which prosecution evidence will be considered by the judges as well as how much weight will be granted to the prior-recorded testimony of recanted witnesses popularly known as “Rule 68 evidence.”

“The question of criteria to be used in considering the prosecution evidence ‘at its highest’ as pleaded by the prosecution is very dear to us. In our minds, we ask ourselves; to what extent will the judges accept the prosecution evidence? Will they include witnesses answers to defense questions in their consideration as well?” lawyer Katwa Kigen told The Standard on Sunday.

Prosecution evidence

In their oral submissions, the prosecution asserted that the evidence they have presented be accepted “at its highest.” The judges had earlier on ruled that they would take the prosecution evidence “at its highest” and “assume” that the prosecution’s evidence is credible unless incapable of belief.

During the hearings this week, Kigen and his counterpart, Ruto’s lawyer, Karim Khan submitted that the whole set of evidence presented was incapable of belief even when taken “in its highest” or even in its lowest. To the extent of its inconsistencies, hearsay, improbability of belief and untruths, they say, it should be thrown out altogether.

Victims lawyer Wilfred Nderitu, however, believes that criteria to be adopted is to give greater credence to prosecution evidence at this stage unless where competing defense evidence is adduced demonstrating its absurdity and incapability of belief.

“If the prosecution evidence is not substantially shaken by the defense questioning in the course of presentation of its evidence, then the prosecution evidence is the one that ought to be considered at this stage,” Nderitu said.

Presiding judge Chile Eboe-Osuji had also alluded to the conundrum of criteria to be adopted when he asked Nderitu whether both “plums” and “dough” should be mixed up to raise the quantum of evidence or whether they should be separated.

On the issue of “organisational policy”, the judge made it clear that he remained “troubled” as to its necessity or lack of in determining the crimes against humanity. Nderitu claimed it was not necessary while the defense insisted it was an essential requirement of the statute unless and until it is amended.

In her case theory, Chief Prosecutor Fatou Bensouda asserts as a matter of fact that there existed a criminal organisation, a network, whose policy and intent was to expel Kikuyu’s and PNU supporters out of Rift Valley around 2007.

Ruto is named as the ‘controlling force’ of the network whose directions attracted automatic compliance. The network comprised of among others Sang, Solomon Tirop, Jackson Kibor, Isaac Maiyo, Fred Kapondi, Christopher Kisorio, Farouk Kibet, Lucas Sang, Samuel Ruto and Mark Too.

“In my opinion as a lawyer, the judge was splitting hairs for reasons only best known to him. A network or a medium is an essential characteristic of a person charged in the manner of Ruto and Sang, as indirect co-perpetrators. The statute and common sense allows it,” Kipchumba Murkomen said.

Both Kigen and Khan disputed all elements of the alleged “network” and whether it existed in the first place. Whichever way the judges resolve on the necessity of an organisational policy and whether it existed or not in the Kenyan situation will tip the case one way or the other.

The unresolved question of ‘Rule 68’ evidence could also have a bearing on the overall determination of the case, although its relevance was contested at the hearings. According to a section of the defense -- Sang’s -- the material submitted through Rule 68 is “incapable of belief” and should be left out of the consideration.

However, the prosecution asserts that Rule 68 materials have been certified to possess a capability of belief for the moment and pending an ongoing defense appeal. Besides, they argued, the question of capability and reliability is not one to be considered at the stage of no-case-to answer motion.

“As the case stands now, two thirds of the witness evidence adduced at the confirmation stage is gone. It can barely stand on a third. Our fear is that if Rule 68 witness statements and testimony is swallowed hook, line and sinker, it could restore the lost ground and determine this case,” Kigen told The Standard on Sunday.

Quantity vs quality

The question of the standard of proof to be adopted in the consideration of the motion ran throughout the whole course of the status conference. In their decision guiding the filing of the motion, the judges said they would adopt a standard of asking whether the evidence is sufficient to an extent that it could convict an accused.

Ruto’s defense however pleaded that “sufficient evidence” at the ‘no-case-to-answer’ stage must necessarily have a direct relationship to the standard of proof for conviction.” Usually the standard of proof for conviction in most criminal trials is “beyond reasonable doubt.”

The prosecution, however, opposed this, asserting that the defense was trying to blur the distinction between the standards of proof at the no-case-to-answer motion stage and the conviction stage. Prosecutor Anton Steynberg insisted only quantity of evidence ought to be considered, not quality.

“Our understanding is that a no-case-to-answer motion is not about proof of facts or quality of evidence presented. On the contrary, the prosecution evidence ought to be assumed rather than determined to be true,” Nderitu, who was cautioned against acting as “deputy prosecutor” told the court.

If a lower standard of proof is adopted by the judges in accordance with prosecution plea, the “show” as Khan kept calling the trial this week, will continue. If on the other hand a higher standard is adopted, and considering defense’s deflation of the case theory this week, the case might end.

The last issue that could determine whether Ruto will show up at The Hague ever again is the extent to which the judges will believe the prosecution evidence in relation to factual allegations made of him.

This, according to legal experts, will determine whether the whole set of evidence is incapable of belief by a reasonable chamber. Defense lawyers dedicated most of their energies in the last one week to demonstrate the absurdity of the prosecution claims.

They played videos showing him preaching peace, debunked the contradiction of him being a spokesman and king at the same time, poked holes into the “network” and mocked at some of the allegations made as downright fictional.

“In my opinion, this is the deciding point of this motion; that any reasonable chamber having assessed the evidence presented to it so far cannot reasonably link the pair to the crimes. The fumbling by the prosecution is indication of good things to come but I remain cautiously optimistic,” Murkomen said.

The judges did not indicate when they will issue the final decision on the matter. It can however be reasonably expected that the decision will be out before Easter.