Gicheru's death robbed Kenya of moment of truth and him, of justice

The late lawyer Paul Gicheru died on September 26, 2022 at his Karen home. [Stafford Ondego, Standard]

Lawyer Paul Gicheru’s death robbed the country of yet another moment of truth about the 2007-2008 post-election violence.

His passing on September 26, 2022 at his Karen home was a shocker to many and was riddled with speculations on what could have killed him. 

Unfortunately, for a man who took a solo flight to the International Criminal Court with a single mission of clearing his name, death came before vindication.

The verdict by Trial Chamber III judge Maria Samba was in the pipeline when he died. Her decision would have had a ripple effect on the country, as President William Ruto was central to Gicheru’s case.

In fact, the trial at the Hague-based court was akin to opening another file for Ruto as the prosecution claimed that the senior lawyer managed and ran a well-oiled engine to tamper with witnesses who were to testify against Ruto and radio journalist Joshua Arap Sang.

Gicheru’s death threw Kenya’s case into a black hole and left the country, the suspects and victims in a quandary of what next.

Although the dead tell no tales, documents posted by the ICC on its website after it had terminated Gicheru’s case on October 14 tell his side of the story.

On November 29, 2022, ICC posted Gicheru’s submissions filed by his lawyer Michael Karnavas. This was at least two months and 15 days after he was declared dead.

Built on hearsay

In his submissions, Gicheru had dismantled the prosecution’s narrative on his association with the President.

According to him, the Karim Khan-led prosecution was all wrong about his alleged involvement and relationship with Kenya’s Head of State.

He stated that ICC prosecution built its case on hearsay.

For example, the prsecuton claimed that Dr. Ruto and Gicheru were classmates. However, he said, this was a falsehood.

“The office of the prosecutor (OTP) erroneously claims that “evidence of a common support for RUTO shared by the managers of the common plan would help establish their association,” with the DCC being “replete with references” to Mr. Gicheru’s association with Ruto.

 No concrete or tangible objective evidence supports this claim. The OTP only offers unreliable hearsay statements. Claiming that Mr. Gicheru and Ruto “were at school together” is a

falsehood. There is no evidence that Ruto and Mr. Gicheru were schoolmates,” the submissions read in part.

Gicheru referred to the prosecution’s narrative as a fear-inducing Wizard of OZ whose efforts were to hoodwink the chamber by relying on flawed, flimsy and fallacious evidence.

“As when the curtain is pulled back and the once fear-inducing wizard is revealed as a frightened, insecure man, pulling back the curtains on the OTP’s case reveals its efforts to hoodwink the Chamber into relying on flawed, flimsy, and fallacious evidence unsupportive of the standard of proof. The OTP’s DCC is awash with extraordinary revelations of uncorroborated, unobjective, and unreliable hearsay evidence,” he argued.

On November 20, 2020 lawyer Paul Gicheru silently took flight to the Netherlands. His travel to the International Criminal Court (ICC) that had issued a warrant of arrest against him stirred speculations, as it was unexpected.

Gicheru had been a free man and was appointed the chair of the Public Procurement Administrative Review Board (PPARB). Thereafter, he served as the chair of the Export Processing Zones.

Only he, God and his close family knew about his mission. The rest of the country was left in a frenzy guess as to why a man who the government was not interested in extraditing would hand himself to the court.

Gicheru was charged with eight counts of offenses against administration of justice. He denied all the eight charges.

Gicheru remained at the ICC detention centre in The Hague for three months, a stay which he termed as “comfortable” revealing that he was given good treatment by both the Netherlands Government and the court and had access to what he wanted.

“I was given my own room at the detention centre. The rooms are good, with a television and a personal computer connected to the internet. I could also eat whatever I wanted but could buy food at times if what I wanted was not on the menu,” Gicheru said.

In an interview with The Standard, he said that by giving himself in, he had lifted a huge burden off his shoulders and was now a happy man.

“Owing to the nature of the matter, it was entirely a voluntary and personal decision in strict and exclusive consultation with my family without the participation of any third party. Any speculation on any third party involvement was entirely wrong and should be ignored,” Gicheru said.

Gicheru said he heard about the "fixing rumours" while in confinement at The Hague, which he said were all lies as he did not surrender to implicate the President.

“I did not go to ICC to fix anyone. It was a personal decision. My conscience could not be at peace forever knowing there was a warrant from ICC hanging over my head. I wanted to clear this thing to enable me to be at peace,” he said.

Gicheru on February 16, 2022 took to the stand.

In his quest to counter the prosecution’s case, he did not call witnesses. Instead, he challenged the documents presented as evidence in court and the testimonies presented by eight prosecution witnesses.

According to him, the witness accounts had ever-evolving clarifications, something he argued was meant to fill in the gaps.

Gicheru stated that failure by investigators to visit Rift Valley, clarify information given to them by witnesses gave the eight a greenlight to lie to them.

According to him, the prosecution claimed that Meshack Yebei’s death was a proof of security issues faced by witnesses and their families, yet it never provided evidence to prove the occurrences or make effort to verify if they were connected to witness interference.

Aside from the timing of Yebei’s death, which occurred virtually at the end of the OTP investigation, no credible evidence was adduced proving that these occurrences were directly and/or exclusively related to any efforts to interfere with the ICC’s prosecution of Kenyan Deputy President, William Samoei Ruto,” said Gicheru.

Yebei was touted as a star ICC witness against Ruto and Sang. He was abducted on December 28, 2014, and found dead four days later. No arrests have been made since then. In 2015 the ICC denied Yebei was on the prosecution’s witness list but regretted that he had been killed.

“Yebei was not on the prosecution witness list nor was he in contact with prosecution staff at the time of his abduction,” said a statement by ICC Registrar Herman von Hebel. However, the Hague-based court said it had offered Yebei security, including a safe residency in a new location. He was abducted when he returned to Eldoret.

His body was found at Man-Eaters Park in Voi by a forest ranger after he disappeared from his Kaptebee village home in Uasin Gishu County. In his filings, ICC prosecutor James Stewart disclosed Yebei’s role. He said Gicheru knew and met Yebei.

On the other hand, Gicheru concluded that investigators did not conduct financial investigations, failed to verify information passed to them by witnesses, did not verify if the phone numbers belonged to persons it listed in its claim and did not have telephone data to ascertain the truth.

The prosecution, on the other hand, urged the judge to find that its evidence revealed a consistent plan. According to the ICC prosecutor, Gicheru allegedly conspired with other members and associates of the common plan to locate, contact and corruptly influence witnesses and potential witnesses in the Ruto and Sang case to withdraw and/or recant their evidence and cease all cooperation with the court.

According to the prosecution, Gicheru did not call witnesses or produce his own evidence to rebut its narrative. It urged the judge to find that his attack to its evidence could not cast doubt on the evidence before the court. 

The prosecution urged the court to find Gicheru guilty on eight counts, adding that the court should also factor in his response to evidence put to him during an interview with the prosecution in 2018.

“In sum, no theory, innuendo or evidence advanced by the Defence raises any reasonable doubt that Gicheru was in fact personally involved in the corrupt influencing of the eight witnesses who are the subject of the confirmed charges,” it argued.

 Death robbed Gicheru justice. It equally deprived the country a moment of truth.