Pressure now mounts on Fatou Bensouda over pending William Ruto case

The withdrawal of President Uhuru Kenyatta’s ICC case has left Chief Prosecutor Fatou Bensouda under considerable pressure to successfully prosecute the case against Deputy President William Ruto.

The collapse of the case also presents an enormous political challenge on the two Jubilee coalition partners – TNA and URP – in the backdrop of pressure and perceptions arising from the withdrawal of the president’s case. Victim’s lawyer in the Uhuru case Fergal Gaynor set the tone against Bensouda on Friday when she put her on notice that victims expect her to nail at least some of the perpetrators of post-election violence.

“The victims’ quest for justice has been cruelly frustrated, both in Kenya and at the ICC. The victims believe that the prosecutor can do much more to bring at least some perpetrators to book. The challenge is to the prosecutor not to further disappoint those victims,” Mr Gaynor said in a loaded statement.

The lawyer lamented that Kenyan victims had received “almost nothing from the entire ICC process” and derided the government’s alleged policy of determined obstructionism.

But Attorney General Prof Githu Muigai who braved non-cooperation allegations by the prosecution says Ruto’s case will either fall or rise on the strength of evidence before the judges. No amount of pressure or attempts to save face would change the case’s fortunes.

“You cannot create witnesses at this stage. The witnesses in the cases were disclosed long ago. If the prosecution has no evidence on the deputy president’s case, there is nothing she can do this late to salvage her case,” Prof Muigai told The Standard on Sunday.

He said the Kenyan Government will continue to engage with the court in the Ruto case just as it had been doing with the president’s case: “Already we have cooperated with the prosecution by facilitating the setting up of the sites where witnesses have been giving evidence in Kenya.”

Civil society activist Njonjo Mue denies there is any legal implication of the withdrawal of the Uhuru’s case on the Ruto one. He however attests to a “significant political implications” arising from the developments at the ICC.

“The court does not exist to convict suspects at whatever cost including pressure and credibility factors. It’s a court which exists for accountability and taming spread of impunity. It cannot be that termination of one case will add impetus on the remaining case. That is not the law,” Mue says.

Mr Mue says the only effect would be on the experience within the Jubilee coalition as the “ICC glue” thaws with collapse of the case. According to Mue, it is difficult to see how relationship between TNA and URP will not be affected by the collapse of the case.

He draws an analogy of a couple who form a family on getting children together. Once the children grow up and leave, he says, the marriage crumbles as nothing holds them together anymore.

System has failed

“Throughout the history of this country, coalitions tend to fall apart once the common enemy is out of the picture. Narc crumbled once Moi was defeated,” he said.

Prof Ben Sihanya, a former dean of University of Nairobi’s school of law says Bensouda is likely to have more attention on the Ruto case with the collapse of the Uhuru case. She has more time, more room to re-organise her strategy. But more importantly, Prof Sihanya adds, evidence in the Ruto case appears to come with a lot of alacrity from the same government that could not give a single piece of paper in the Uhuru case even as Bensouda cried aloud about it.

“It’s not me saying it. You have heard Ruto’s associates in the past complain that affiliates of Kibaki regime who have since been inherited by Uhuru were keen to fix him. And generally there is that strong feeling, even among Standard Four children, that the Kenyan system has failed Ruto,” Sihanya says. Sihanya says his greatest worry does not lie either in Bensouda firing on all cylinders to convict Ruto or Jubilee falling apart. He says what should worry Kenyans is the significance of the withdrawal, not acquittal, on Kenya’s governance and peace.

“My worry is two-fold: With these charges perpetually hanging around him since he has not been acquitted, Kenyatta may want to hang on to his seat for a while either through himself or through stooges. Secondly, it is now possible to have recurrence of violence after election since the high and mighty have triumphed over international justice,” Sihanya says.

Prof Karuti Kanyinga, a governance expert, says the collapse of the president’s case will not have any impact on Ruto’s case because charges, witnesses and circumstances are extremely different. He says the main question to consider is the veracity of the evidence available.

He says he sympathises with Bensouda for inheriting a case and predicts that she may not deliver, even on the Ruto case. Prof Kanyinga says courts deliver cases on the basis of evidence not politics, a fact he says has been demonstrated by the collapse of the president’s case. “The turn of events has demonstrated that the court is independent. Despite all the political fight deployed against it, the court has used evidence to drop the case. In a way, I think, this independence will be the court’s main undoing because you cannot afford to ignore the socio-political dynamic of the cases,” he said.

He says if Bensouda were to deliver in the Ruto case against perception that the case is weak, pressure would still be brought to bear on the court to explain how. He says ultimately, the court may have to factor all circumstances of the case including politics if it has to be seen to be fair to victims.

Lawyer Gitobu Imanyara, a strong proponent for justice for the victims in the 10th Parliament, agrees with Mue that the only impact would be felt politically, not at the ICC. “When you watched the television after the termination of the president’s case, did you see any celebrations in the Rift Valley? They were constrained to Central and parts of Nairobi. The point is, there are those who feel that some deal was cut. This is a perception the president will have to fight and manage,” he says. Imanyara says arising from the withdrawal of the charges against him, the president will now be forced to treat his deputy with kid-gloves to avoid antagonising him. He says this may rob Kenyans accountability measures among other things.

TNA Chairman Johnstone Sakajja says the withdrawal of the case against the president presents the prosecution and the court with the opportunity to audit its processes and to drop the case against Ruto. He says only through this will the court save itself from credibility issues.

He denies that Jubilee was founded on the ICC card and says the collapse of one case presents the coalition with the opportunity to channel all energies into defeating Ruto’s case. Mr Sakajja says previously, the coalition’s resources were spread on the two cases.

Retaliation and attack

“We know our opponents are racking their minds on how to capitalise on this but fortunately our people are intelligent. If I were them (opposition), I would tread carefully. This has cost them one election and unless they do not learn anything they should think carefully,” he said.

Sakajja acknowledged to The Standard on Sunday that there are some people “trying to use Jubilee people” to capitalise on the withdrawal, but says the coalition is very much aware.

Lawyer Irungu Kang’ata, also an MP, says the effect of the withdrawal of the president’s case on the DP’s one is a positive one. He says the two cases were woven in one legal theory and the collapse of one part of the theory would inevitably weaken the other.

“You will remember the former prosecutor strategically chose three suspects from both sides of the political divide. One case was woven around the attack and the other on retaliation. You cannot drop the case on retaliation and leave the case on attack intact,” he says. Mr Kang’ata agrees that Bensouda is under considerable pressure to deliver on the remaining case but says she must temper the pressure with the applicable law, procedures and international justice standards.