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Paul Gicheru: Issues ICC judge will consider before deciding on case

Lawyer Paul Gicheru. [Collins Kweyu, Standard]

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.

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 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. It would then occur that his mission was to clear his name from the allegations by the ICC prosecutor that he had allegedly tampered with witnesses who were to testify against Deputy President William Ruto and Joshua arap Sang.

After one year and eight months from the date he set sail for the Dutch’s land, Gicheru, on Monday, closed his case before Trial Chamber II Judge Maria Samba, asserting his innocence.

The ICC, in its statement Monday, said following the hearing that lasted two hours, it will hand its verdict within reasonable time. “Trial Chamber III will deliberate on the proceedings and, within a reasonable period, pronounce its decision on conviction or acquittal, pursuant to Article 74 of the Rome Statute. The Chamber bases its decision only on the applicable law and on evidence submitted and discussed before it at the trial,” the court statement read.

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

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

In the end, justice Samba will be 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.

On the other hand, she will assess prosecutor Anton Stenberg’s argument on the credibility and reliability of evidence, elements of crime and modes of reliability, and evidence to prove beyond reasonable doubt there was witness tampering.

In a bid to persuade the judge, Gicheru’s lawyer Michael Karnavas submitted a 116-paged trial brief at the close of the case while ICC deputy prosecutor Nazhat Shameen filed a 121-paged document.

In his case, Gicheru argued that prosecutors conducted irreparably flawed investigations, based on lies, and hearsay.

Justice Miatta Maria Samba at the opening of the trial in Paul Gicheru's case at the ICC in The Hague. [ICC]

“Inappropriately, the OTP is expecting the Trial Chamber to rely on assumptions and unverifiable hearsay, to accept the word of documented deceivers, to fill in the gaps of its woefully flawed investigation, to overlook its abject failure to adduce credible evidence, and to make unsupported findings that it has met its burden of proving the confirmed counts to the standard of beyond reasonable doubt. The Trial Chamber must not abide. It must acquit on all counts,” argued Karnavas.

According to Karnavas, the judge must also factor in that the witness accounts had ever-evolving clarifications, something he argued was meant to fill in the gaps.

Gicheru’s lawyer 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 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 Karnavas.

Karnavas 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.

According to him, 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 common plan. Gicheru denied being at Kapsabet High School with Dr 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,” he said.

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.

Cast doubt on evidence

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. 

DP William Ruto. [File, Standard]

“In this case, the defence has not called any witnesses or produced such evidence, but instead advances speculative theories based on inferences it seeks to draw from the Prosecution’s own evidence. However, such inferences are unsupported by acceptable evidence and cannot raise reasonable doubt in the face of credible and corroborated evidence,” said the prosecutor.

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,” he concluded.

In the case, if the judge finds there is not enough evidence, the case will be closed and Gicheru released.

Acquittals are subject to appeal by the defence and by the prosecutor.

If there is a verdict of guilt, the judge will issue a sentence. The decision can also be appealed.