Deputy President William Ruto punches holes in Bensouda’s case

Deputy President William Ruto's lead counsel Karim Khan makes his submissions during the proceedings at The Hague yesterday. [Photos: Jacob Otieno/Standard]

Deputy President William Ruto sat pensively in court as his lead defence counsel tore the prosecution case and presiding judge made a key revelation that could tilt the case either way.

In a day that could define the destiny of the five-year case, lawyer Karim Khan fired on all cylinders to demonstrate that the prosecution case had been evolving over the years and had irredeemably tumbled.

Presiding Judge Chile Eboe-Osuji, however, dampened the defence's hopes when he reiterated his doubts whether an "organisational policy" must be established as a prerequisite for finding that crimes against humanity were committed in Kenya after the post-election violence.

When Mr Khan appeared to gloss over the matter, the Nigerian judge told him that it was not a mere "academic discussion hanging in the air", that it was a significant issue weighing on the case.

"One of the things that has troubled me is whether we would be asking for an 'organisational policy' when we have a clear case of a genocide or something that looks like a genocide, in this matter, crimes against humanity. I am trying to understand that. Mr Khan, can you help me?" he posed.

The judge said the matter of determining whether an organisational policy is a key determinant in the case is even made more significant when it is considered that the prosecution has issued notice of re-characterisation of the case.

In her current framing of the case, Chief Prosecutor Fatou Bensouda has named Mr Ruto as leader of a structured "network" which executed an "organisational policy" of killing, expelling and persecuting Kikuyu's and Party of National Unity supporters in Rift Valley during the post election period.

The "network" which the prosecution alleges included political, financial, military and media wings is the fulcrum upon which the current theory of the case is structured. Khan, in his submissions yesterday, said the "networks" elements had disintegrated over time.

"The evidential lacuna in maintaining this network is so pervasive that a reasonable chamber cannot convict anyone on its basis. All the key elements of it are gone, every last one of them. Half of the political wing is gone, three quarters of the finance elements have disintegrated too," Khan said.

He said despite the toppling of the network, the prosecution was in "dire strain" of maintaining the same theory to ensure the case resembles the one they presented earlier on.

Judge Osuji severally cut short the  lawyer, at one time cautioning him against use of adverse adjectives and at other times warning that the "purpose of court is not to come here and argue".

The judge did not appear particularly impressed with Khan's urge to move to "more productive areas of argument" when he engaged him on the organisational aspect of the 2008 violence, its relation with the 1992 and 1997 one as well as lessons to picked from previous cycles of violence.

"Beyond our concern to make the world a better place through the ICC, we also have to deal with particular contexts of each case as presented to us. Its not just an academic exercise and about saving the world," the judge said.

He said the court was factually concerned with the utterances made in their articulation and symbolic values. He cited the use of the symbol "hammer" by ODM politicians in the 2007 election campaigns and the way it was brandished as an important element of considering the alleged spontaneity of the violence.

"These are the ingredients that must be put in one pot and determined by this bench," Osuji said and announced he would leave the matter at that: "I will leave you alone for now although I had other questions to ask," he said as Khan said he did not wish to "say any more on this".

In debunking the prosecution's case, Khan said the theory of Ruto serving as "spokesman and King" of the Kalenjin people was a contradiction of terms. He used the analogy of the ICC spokesman to say that a spokesman cannot be a king at the same time.

Ruto could also not have been king when his supposed subjects, the Kalenjin people, rebelled against him and elected people he did not support, Khan argued. He mentioned former MPs Musa Sirma and David Koros as examples of people rejected by kalenjin people despite Ruto's endorsement.

"He was a mere back-bench member of parliament, a failed presidential candidate, one who was consoled with the pentagon position after failing to clinch the presidential ticket," he said.

Khan also pointed to prosecution evidence which suggested that Ruto was "led" by the kalenjin people into supporting Raila Odinga as the 2007 presidential candidate, and not the other way round.

"The evidence we have shows the people leading William Ruto into ODM and not William Ruto leading them into ODM. Yet the prosecution says the show must go on..." he said.

Khan also argued against the folly of Ruto organising the violence and losing out badly on the same in his home county of Uasin Gishu. He tabled statistics showing that ODM suffered more losses in Uasin Gishu than PNU.

"The vehicle of this case cannot carry the weight of the evidence. The chassis is broken and the wheels have come off," he said.

He said the violence was spread over most parts of the country yet the prosecution appeared disinterested in those other areas other than Rift Valley. He said witnesses lied and mentioned deceased people such as former minister Francis Lotodo in connection with planning of the violence.