My advice to Deputy President Ruto ahead of looming ICC trial

By Donald Kipkorir

Your Excellency William Samoei Arap Ruto, as the hearing of your trial at the ICC opens on September 10, I want to offer unsolicited advice and words of encouragement.

As your friend, and a long-term one, I speak from my heart. I do not suffer either fools or hypocrites gladly. To speak the truth sets us free. To lie makes us prisoners to our conscience. That the hearing will begin is beyond doubt. We need to discuss, how to ride through it.

Though, I love Kenya, I have always said am Kalenjin first. There is no contradiction in this. Whether we are evolutionists or creationists, the family unit is the smallest denominator of human society, and the tribe is the default of nation-states. In hierarchy of human society, it is thus family, tribe and nation-state in descending order of belonging and loyalty. We have chosen you as the undisputed leader of the Kalenjin tribe, and no usurper will be allowed to take your place while you will be away at The Hague. Like the King who went far away and left his servants with various talents, we will not bury the talents.  I trust your defence team, and am glad Senator Kithure Kindiki, is part of it. He is a lawyer I respect and count as one of my friends. My paths with his have crossed so many times, in a good way. Anyway, your defence team needs to know and hold certain truths in defence strategy. In criminal jurisprudence, the burden of proof never shifts from the Prosecution. It is for Madame Fatou Bensouda to proof her case against you beyond the shadow of doubt. You don’t have to say anything or proffer any evidence. You can keep quiet and the case will still be dismissed.

As you are not charged with direct commission of the crimes before the ICC, M. Bensouda has the difficult task of proving you guilty on the principle of command responsibility. Established law on international crimes obligates Ms Bensouda to prove beyond the shadow of the doubt that there was direct and personal relationship between you and those who committed the alleged crimes, that you knew or ought to have known that those criminals were going to commit those crimes, and that though you had the power and authority, you refused to stop them from committing the crimes. I do not see how she can surmount this legal cliff.

For your legal team, they must demonstrate the highest professionalism in criminal defence. Their key strategy is to discredit the evidence of the Prosecution witnesses without coming out as bullies. The witnesses are Kenyans. Their evidence can be destroyed without destroying their dignity. They must be exposed as pawns in a game beyond their league. They also say that a successful defence strategy is for lawyers to treat the Judges with outmost deference. There is a false cliché that why get a lawyer when you can buy a Judge. The truth is that Judges are human beings and though the law guides them, their hearts also influence them. A lawyer must never be cantankerous to a Judge. At least in open court. Let your lawyers show outmost retrain, respect and decorum to the Judges. Even wish them happy birthdays, and complement their dresses.

The laws aside, take time to study the Dutch culture, politics, history and economy. There is so much to learn from them. It is a parliamentary democracy, yet a constitutional monarchy. It is a unitary state, yet with power devolved to 12 Provinces. It is a Christian nation yet has licensed prostitution and drug taking. It is a very rich country with GDP in excess of US$700Billion for mere 16 million people, yet its people prefer bicycles to big cars. Netherlands is the world’s third largest exporter of agricultural produce. There is so much to learn from them. Learn from them.

Finally, as a Christian believer, stay strong and resolute in your faith in God and the judicial process of the ICC. ICC maybe a quasi-legal body owing to its political origins in the ashes of WWII, but it actually adheres to the highest standards in judicial process. Prosecution may conjure evidence, but the Judges are of the highest integrity. The Judges brook no nonsense. They cannot convict an innocent man and not on discredited evidence. As one of your friends, and subject, we will always be singing, Paulo na Sila waliomba, na milango ya magereza ikafunguka …. Fare thee well Your Excellency.

The author is an advocate of the High Court of Kenya