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Court hears of intrigues that drove witnesses to withdraw from ICC case against Ruto and Sang

The Hague-based International Criminal Court at The Hague in the Netherlands. [Standard,File]

Details of bribery, threats and intimidation emerged during the first day of hearing of the crimes against humanity case at the International Criminal Court (ICC).

It emerged that witnesses were given promises, bribed, threatened or intimidated to recant and cast doubts on the case against deputy president William Ruto and radio journalist Joshua Arap Sang.

The office of the prosecutor (OTP) on its maiden statement before Trial Chamber III Maria Samba painted a picture of a well-oiled juggernaut that was armed with money and promises to cause mass walkout of witnesses in the Ruto and Sang case.

When the prosecution team composed of deputy prosecutor James Stewart, senior trial lawyer Anton Steynberg and trial lawyer Alice Zago took the floor, they also laid bare huge offers to witnesses. Yet, what was actually paid did not match up with the witness demands.

When this did not work, weapons and threats were unleashed to send cold shivers down the spines of witnesses who were identified by a team of a common plan.

According to the prosecution, ‘big man Ruto’ wanted no stone unturned.

“There can be no doubt that the accused was aware that the common plan had a criminal component,” the court heard.

The OTP says that Gicheru was at the heart of the bribery machine adding that four key witnesses were bribed to recant their evidence while two others reported to the investigators about efforts to give them ‘clean cash’ to walk out of the case.

According to the OTP, the idea was to end Ruto’s case quickly and in the middle of the trial. The mission, the court heard was to locate, contact and bribe witnesses.

The prosecution led by deputy prosecutor James Stewart lifted the veil on who was in the team.

Gicheru, Silas Simatwo, and then Turbo Constituency MP Elisha Businei and Isaac Maiyo were the top managers in the bribery team.

“From his office in Eldoret, the accused leveraged his influence as a prominent member of the community and of the legal profession. He decided which witnesses should be targeted and how much money or other benefits these witnesses should be offered in exchange for seizing or cooperation,” the judge heard from Stewart.

Simatwo is the chairman at AMACO Insurance, a company associated with Dr Ruto. The insurance’s website reads that he is the chairman of the board of directors.

The intermediaries, according to the prosecution were Walter Barasa, late Meshack Yebei and Philip Bett.

 At the lowest level was Elisha Kipkorir Busienei, a Mr Kosgei and Kogo who is alleged to have been Gicheru’s bodyguard.

“Your honour, you, will hear and read the evidence in the trial about the common plan the accused devised, with the assistance and participation of others. The same witnesses who were contacted and targeted by the accused and these other individuals will testify,” stated Stewart.

He continued: “These witnesses will identify individuals who corrupted them and describe their respective roles and responsibilities in the execution of the plan.”

 Gicheru has eight confirmed charges. He categorically denied the charges.

Each count was read in sequence and the lawyer was asked whether he would deny or accept the charges.

“Do you understand the nature of the charges?” asked Justice Samba.

Gicheru replied: “Yes I do.”

“Do you make an admission?” Justice Samba continued.

“Not at all. For the record, I plead not guilty, not guilty,” pleaded Gicheru.

“Respect of all charges?” the judge affirmed.

“Yes,” Gicheru echoed.

He is accused of tampering with P-0397, P-0516, P-0613, P-0800, P-0495, P-0536, P-0341, and P-0274.

The money offered by the team, according to the prosecution, was between Sh 500, 000 and Sh 5 million.

However, what was allegedly paid was between Sh 30,000 and Sh 2 million.  The prosecution claimed there was a ranking process that determined how much one was to be paid.

The judge heard that P-0397 was offered Sh 5 million. This was alleged to be paid in instalments.  According to Stewart’s team, this witness received Sh 1 million to withdraw as a prosecution witness and commit to hunting witness P-0516. This is claimed to have happened sometime in April 2013.

The second witness, P-0516 is alleged to have been offered Sh 800,000 and which was alleged to be paid in instalments. However, this witness was allegedly paid Sh 500,000. This was said to have happened a month after the witness was allegedly bribed, in May 2013.

The third witness, P-0613 is alleged to have been offered an unknown amount which was to be negotiated for her to recant her earlier statement. This was between May 2013 and March 2014.

 P-0800 on the other hand is claimed to have been offered between Sh1.5 million and Sh 2.5 million, which was an equal amount allegedly offered to P-0495. According to Stewart, this happened in September 2013.

The prosecutor in his case brief says that P-0495 was to provide key evidence linking Ruto to PEV crimes committed in Turbo, Kenya.

According to the prosecution, he stated that he was promised a job offer anywhere even if he did not have the right qualifications. P-0495 allegedly told P-0613  that he agreed Sh 2.5 million kickback and had also been offered a job as a private security officer.

“Immediately following his meeting with P-0613, P-0495 was intercepted and interviewed under caution by OTP investigators; P-0495 admitted to accepting a bribery offer in exchange for his withdrawal from the ICC,” Stewart continues.

At the same time, witness P-0536 is said to have been offered between Sh 1.4 million and Sh 1.6 million. This is claimed to have happened between May and September 2013.

Another witness, P-0341 is claimed to have been offered Sh 5 million but was allegedly paid Sh2.5 million. The first payment of Sh 500,000 was done on May 2, 2013, and thereafter further payments totalling Sh 2 million were paid.

This witness (P-0341) is claimed to have narrated that he met with Gicheru in Eldoret and they proceeded to Veecam House where the lawyer’s office was allegedly located.

Following the meeting, he was allegedly offered a car to attend all ICC meetings. He was also offered a farm, a plot in town and that his children would be supported.

According to him, the offer also incorporated that his children who were done with schooling would be offered government jobs. The witness claimed the ICC meetings involved ‘high-level people.’

According to him, Gicheru opened a drawer attached to his office desk and handed him Sh500,000 in Sh1,000 denominations bound in an elastic band.

“Gicheru would just hand me the money and I would leave,” the witness claimed.

The witness is said to have been advised not to bank the money but he did it within a period of 1 year. P-0341’s bank statements showed he cashed large instalments of money.

“Gicheru told me not to deposit the money in the bank and told me that I would return later to sign an affidavit. Gicheru had previously told me the ICC can inspect records at the bank if I deposit the money,” his witness continued.

The eighth witness at the heart of the case is P-0274. He is alleged to have been promised Sh2 million. However, he allegedly received Sh 3,000.

For this witness, the prosecution claims that he was threatened multiple times, including at a gunpoint to record a video stating that the ICC attempted to coach him to give evidence against Mr Ruto.

The prosecution claims that witnesses admitted meeting lawyer Paul Gicheru and were offered money to withdraw as prosecution witnesses and some relocated from their homes.

Gicheru surrendered to ICC in 2020 after an arrest warrant issued by the Hague-based court over claims of witness interference.

“Witnesses will say that when they met the chair and other members of the common plan, they felt pressured into complying with their (common plan team) demands. In one of such meetings, a witness will say he could not reject the money paid to him by the accused because doing so would mean he was disagreeing and this immediately placed him (the witness) and his family in danger,” the prosecution continued.

Background

President Uhuru Kenyatta and his Deputy William Ruto faced crimes against humanity cases at the ICC following the 2007/2008 post-election violence in which over a thousand lives were lost.

President Uhuru was later acquitted.

In April 2016, The ICC terminated Ruto and Sang’s case. This is different from being acquitted.

A judgment of acquittal means that an accused person has been found to be not guilty of the crimes charged against him or her. In many jurisdictions, including before the ICC, such a finding may prevent the future prosecution of the accused again for the same crimes.

But, in terminating the case against Ruto and Sang, it was made clear that they could be prosecuted afresh in the future.

Ruto and Sang faced three crimes against humanity- murder, deportation or forcible transfer of population, and persecution allegedly committed during the 2007-2008 post-election violence in Kenya

Trial Chamber V(A)  by majority decided to terminate the case. 

The presiding Judge Eboe-Osuji was of the view that there was evidence that suggested that witnesses had been interfered with and therefore it was justified to leave open the opportunity to re-prosecute the accused.