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Focus shifts to ICC judges as Ruto, Sang await fate

By Nzau Musau | January 16th 2016

All eyes turned to the three judges of the International Criminal Court (ICC) yesterday as parties and participants in a decisive “half-time” motion wound up their oral submission at The Hague.

The onus of sifting through the arguments exchanged in the last four days now shifts on judges Robert Fremr, Olga Herrera Carbuccia and Chile Eboe-Osuji who must decide the merit of the motion by Deputy President William Ruto and his co-accused Joshua arap Sang.

Jubilee leaders accompanying the DP at The Hague issued a notice on the judges, right outside the court, that they must stop the case once and for all. The MPs and Governors, led by Leader of Majority in the National Assembly Aden Duale, said the judges must now redeem the image of the court.

“The only outcome we are expecting from this is an unequivocal finding of a no-case-to answer on the part of the accused. Anything short of that will reinforce our earlier perceptions of a court that lacks independence, one that is a tool of imperial forces,” Duale said.

Yesterday, the prosecution, through lawyer Anton Steynberg, stuck to their guns that their case is tight and would pass the “half-time” motion, also known as no-case-to-answer motion, lodged by the defence.

Victims' lawyer Wilfred Nderitu made similar arguments that the threshold of the no-case-to-answer motion was low on the prosecution and that the case would go on.

“The question before you today is that of existence of evidence that could reasonably convict the accused rather than the strength of the evidence adduced. The threshold is a rather low one for prosecution to attain,” Nderitu, who took the stand in the morning, told the court.

But ICC judges Eboe-Osuji and Fremr poked holes into their respective submissions, often derailing their flow of thought and occasionally paralysing them.

“I’m sorry, Mr Steynberg, but...you made statement which really attracted my attention when you said that the Chamber should focus on assessment of quantity of evidence rather than on assessment of its quality...Do you think that such an assessment focused on quantity of evidence would meet requirement of Article 64(2), that Chamber should ensure the trial is fair and expeditious? The second would be: To me, evidence is generally mean should prove some allegation, and do you think that it’s even possible to call or to work with this term without looking at the quality, on the strength of evidence?” posed judge Fremr.

The lawyer braved serial questioning from Osuji and Fremr in his one and half hour presentation but he held his ground that for purposes of the motion, prosecution evidence ought to be assumed rather than being determined to be true.

Nderitu told the judges that references to Kikuyus as “weeds” and “mushrooms” in an agrarian region of Rift Valley over the 2007 election campaigns left no doubt as to what those who uttered them, meant.

“Do not belabour the point on this. Even people with small lawns wouldn’t want weeds to grow over them,” Osuji cut him short. Defense Counsels Karim Khan and Katwa Kigen also objected to Nderitu’s assertions on Mungiki, on Rift Valley being bread-basket of the country among others.

When he took the stand to respond to the prosecution arguments, Steynberg said the defence had not demonstrated that the prosecution case could not pass the motion. He said the claims that witnesses had lied is no proof that they had said the truth in other areas.

He said law reports world over are replete with cases of witnesses who were found to have lied in other areas being accepted as truthful in other areas. Steynberg poked holes into defense assertions on Khan’s claims that Ruto was a “mere back-bencher” in 2007 and that the Pentagon position meant nothing.

“He was the only Kalenjin in Pentagon. He carried all the hopes and aspirations of the Kalenjin people,” Steynberg said.

The prosecutor claimed that the audios played by the defense showing Ruto preaching unity and peace were all done in Swahili, meaning the DP was conscious of the type of audience he was dealing with.

Nderitu insisted that the chamber needed not ascertain that the 2008 violence was organised pursuant to a formal policy.

At their press conference, Jubilee leaders said the defense counsels of Ruto and Sang had “ably” demonstrated to the court that the case was irredeemable. They said the essential pillars of the original case had collapsed.

“The over 3,000 guns purportedly bought to perpetrate the violence have been reduced to a mere hammer, one of ODM’s political symbols in 2007 campaigns and which was derived from Raila Odinga’s ‘hummer’ car,” Duale said.

Senator Lenny Kivuti said the case had been “deflated” in the last four days and that “nothing short of a no-case to answer finding would be acceptable.”

The DP is expected to fly back home over the weekend to await his fate.

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