A lawyer indicted by the International Criminal Court (ICC) over Deputy President William Ruto’s case has surrendered.
Paul Gicheru’s (pictured) surrender to the ICC yesterday may take Ruto and his co-accused Joshua arap Sang into the unknown, four years after The Hague-based court dropped the case against them.
The case was terminated on April 5, 2016 but the ICC pointed out that its verdict was not a seal that the two would not be charged afresh in future either at The Hague or a court in Kenya.
With Gicheru, a man the then ICC prosecutor Fatou Bensouda described as the grandmaster of a well-oiled syndicate which bribed witnesses who were to testify against the DP and Sang, surrendering, there is a likelihood of re-opening the 2007-2008 post-election violence narrative and that of the two accused persons.
Gicheru has been a free man and was appointed the chairman of the Public Procurement Administrative Review Board. Thereafter, he served as the chair of the Export Processing Zones.
What motivated him to surrender, and why, is still a mystery.
A statement by the ICC’s public affairs office indicates that Kenyan authorities may have been aware of Gicheru’s move as there were proceedings for him to be handed to the court.
“The court through the Registry services, submitted a cooperation request to the Dutch authorities for the arrest and surrender of Mr Gicheru to the court upon completion of the necessary national arrest proceedings,” the statement read.
ICC issued warrants of arrest on Gicheru, journalist Walter Barasa and Phillip Bett, on account that they actively participated in ensuring witnesses recanted their evidence.
Trial Chamber II judges Cuno Tarfusser, Marc Perrin de Brichambaut and Chang-ho Chung issued the warrants.
Barasa has been fighting his extradition since October 2, 2013 to date. The journalist faces three counts against the administration of justice by corruptly or attempting to corruptly influence three ICC witnesses.
Gicheru and Barasa had orders from the High Court barring their extradition until the case against the State is heard and determined. In the case, their lawyer Kibe Mungai argued that the Constitution allows them to stand trial in Kenya.
The two also dismissed the ICC claims, asserting that they had no role in the alleged witness tampering.
Their argument that Kenya’s obligation to the Rome Statute does not surpass the Constitution was supported by activist Okiya Omtatah. “The High Court of Kenya is not an errand boy to the ICC that it does what that court wants. MPs could not make regulations that override his right to be tried in a Kenyan court. ICC is not in the Kenyan Constitution,” argued Omtatah.
Gicheru is wanted for allegedly influencing witnesses of the court. He is said to have been the manager of a grand scheme to buy off witnesses. According to the ICC, he oversaw commitment agreements with the corrupted witnesses and arranged how they would withdraw their complaints against the DP and Sang. Thereafter, he would allegedly hand in the agreed pay.
Gicheru allegedly influenced six witnesses in the Ruto-Sang case.
The trial court was told that evidence indicated that the said scheme was ran in a planned manner and with a clear distribution of tasks. Gicheru has been said to have been on top of everything.
Bett, also known as “Kipseng’erya”, was reportedly the link between the witnesses and the lawyer. His role, according to Bensouda, was contacting the witnesses before bringing them to Gicheru.
The situation was so dire that even some of the witnesses were intermediaries engaged in bribing others, according to The Hague court, with claims that some witnesses were intimidated to recant their evidence.
But judge Eboe Osuji exonerated Ruto and Sang from blame, saying that there was no evidence showing that they had instructed anyone to engage in witness interference. “Now, it must be made clear that there was no evidence to the effect that Mr Ruto or Mr Sang had instructed or encouraged anyone to engage in witness interference,” the judge ruled.
He noted that interference cries started well before the trial began and involved publishing witnesses’ names and giving money.
“Findings of improper direct interference were made in respect of at least four witnesses, 345 including findings that some of these witnesses were themselves intermediaries engaged in the bribing and attempted bribing of others.”
“... Immediately upon the commencement of the trial, with the very first witness, it became clear that there had been a concerted campaign to troll witnesses on the Internet, by publishing their perceived identities. This was done by persons who had made clear their intention to frustrate the trial, by engaging in conduct aimed at intimidating witnesses,” the judge noted.
An expert report released in November last year by the ICC claimed that its former prosecutor Luis Moreno-Ocampo wasted an opportunity to nail Ruto over the 2007-2008 post-election violence.
The report released by Bensouda claimed that her office had enough evidence to succeed in Ruto’s case.
However, a bungled investigation, which was also marred by witness interference, meant that there would be no justice for Kenyans who were maimed, killed or forced to flee their homes, says the report.
Conversely, the report revealed that even without witness interference, Ocampo’s evidence against President Uhuru Kenyatta, former police boss Mohamed Ali, former Head of Civil Service Francis Muthaura, Sang and former Cabinet minister Henry Kosgey was flimsy at best, and it would not have withstood close judicial scrutiny.
Experts conducted a post-mortem of the investigation 12 years after the poll chaos, which saw more than 1,100 people killed and over 600,000 residents displaced.
“At trial, the prosecution lost many of its witnesses, who either recanted or refused to appear. The trial teams attempted to deal with this serious blow to their cases by quite rightly requesting the judges to admit the prior statements of these witnesses, but were ultimately unsuccessful,” it stated.
There were 680 victims who participated in the Ruto-Sang case.