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Paul Gicheru's death drives final nail in poll violence case's coffin

Lawyer Paul Gicheru. [Collins Kweyu, Standard]

One year and nine months ago, on November 2, 2020, lawyer Paul Gicheru took a lone flight to the International Criminal Court (ICC) and handed himself to the court that had been hunting him for alleged witness interference in the case against William Ruto, then Deputy President, and radio journalist Joshua Sang.

In what was an odd decision, the man who was on the ICC’s black book alongside journalist Walter Barasa and Philip Bett flew to the Netherlands, igniting yet another moment for the country to revisit the happenings of the 2007-2008 polls violence.

Many wondered why a man who Kenya was not interested in or least bothered to hand to the Hague court would leave the territory without raising an alarm.

During the trial, Gicheru said his surrender was to clear his name from the claims that he bribed and threatened witnesses in a bid to have them recant and withdraw their testimonies.

In the case, his lawyer Michael Karnavas submitted in June this year his final call for Trial Chamber III judge Maria Samba to dismiss the prosecution’s arguments.

Has death robbed him of justice?

Following his death, the verdict that was nigh will abort. It will be the second time in a month for the ICC to terminate a trial following the death of a suspect.

On September 7, this year, the Pre-trial Chamber I closed the file and withdrew the warrant of arrest against former Lieutenant General of the Libyan army and former head of the Libyan Internal Security Agency, Al-Tuhamy Mohamed Khaled, following his death in August.

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

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.

Gicheru linked the witnesses to NGOs, adding that they were all interested in accommodation, employment, money, opportunities, and schools for the children in countries out of Africa.

He urged Judge Samba to dismiss witness testimonies submitted against him, terming them lies, hearsay and unsubstantiated claims by grifters, opportunists, con-artists and confabulators of Olympic proportion.

Gicheru’s lawyer argued that failure by investigators to visit Rift Valley and clarify information given to them by witnesses gave the eight a green light to lie.

According to him, the prosecution claimed that the death of Meshack Yebei, who was said to be a key witness, was 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.

“Besides the death, which occurred at the end of the OTP investigations, 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 Karnavas.

The lawyer 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 lawyer argued there is no evidence to show he was associated, schooled with or was a friend to Ruto. At the same time, he argued that none of the witnesses proved that he bribed, threatened, or contacted them or was associated with anyone mentioned as a member of the common plan. Gicheru denied being at the Kapsabet High School with Ruto at the same time. 

“The OTP’s investigation was flawed from the outset, resulting in a flawed and fallacious evidentiary record based on the uncorroborated hearsay evidence of unreliable witnesses. No other evidence was adduced to show that Mr Gicheru was associated with and or a supporter of Ruto,” said his lawyer.

He termed the trial as finding the needles of truth hidden in the massive haystacks of lies by each witness. According to him, the ICC prosecutors inaptly cherry-picked the witnesses’ accounts to craft their versions of what allegedly happened and produced the same through countless and ever-evolving “clarifications”.

The court heard that the case was awash with astonishing lies, conjectures, innuendo, assumptions, gaps and unverifiable hearsay and a product of shabby, amateurish investigations that, from the outset, were dependent on and became wedded to individuals with low morals, high desires to hoodwink the OTP investigators into providing them financial benefits and relocation out of Africa

On the other hand, the ICC prosecutor called eight witnesses and dropped one.

At the close of the trial, Justice Samba had been looking into three main issues submitted by Gicheru- the quality of the prosecution’s investigations, the standard of proof and assessment of evidence gathered, and the integrity of the eight witnesses who testified against him.

The prosecution urged the judge to find that its evidence revealed a consistent plan. According to the ICC prosecutor, Gicheru 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.

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.

While terming Ruto as the ultimate beneficiary of the scheme of things, ICC Deputy Prosecutor James Stewart argued that the managers consisted of a group of influential people associated with him and or his supporters.

“There is no innocent explanation consistent with the prosecution’s evidence, nor has any been suggested by the defence. It proves beyond reasonable doubt the accused’s essential role in the implementation of the witness interference scheme described below, which was conducted for the benefit of William Samoei Ruto,” he said.

The prosecutor named Gicheru, Barasa, Bett, Yebei (deceased), Silas Simatwo, Isaac Maiyo, Elisha Busienei, P495, a Mr Kogo as well as lawyers named Mr Njuguna and Mr Mitei as the team behind witness tampering.

“There are no fewer than 10 common plan associates and other persons of interest linked to the accused to the phone data. These include managers Simatwo and Maiyo, intermediaries Barasa and Bett, associates Busienei, P495, and Kogo, as well as Mitei. And of course the ultimate beneficiary of the scheme, Mr William Ruto,” argued Stewart.

The final submissions were doused with anecdotes and sharp criticism of the opponent’s submissions, with each imploring the judge to tilt the scale of justice in their favour.

Nevertheless, in the end, death closed the case before the judge did.