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Deputy President William Ruto files 'no case to answer' motion

By Kamau Muthoni | October 28th 2015

Deputy President William Ruto has launched a bid to persuade the International Criminal Court (ICC) judges to terminate his trial. In a 95-page filing, Ruto’s lead lawyer argues that the prosecution has not presented sufficient evidence for his team to mount a defence.

Deputy President William Ruto (right) greets his lead lawyer Karim Khan early this year when they went to attend ICC proceedings in The Hague. (PHOTO: FILE: STANDARD)

Through the filing of a ‘no case to answer’ motion, Ruto’s lawyers have sought to discredit the prosecution's case and asked the trial judges to acquit the deputy president of the three counts of crimes against humanity.

The effect of a successful 'no case to answer' motion is either the acquittal of the accused on all or some of the charges.

Conversely, if the motion doesn't go his way, even if on partial judgement of acquittal, it would mean judges are satisfied he has a case to answer, opening the next stage of trial for the defence to lay out its case.

Ruto's lead lawyer Karim Khan has raised five grounds faulting the prosecution's approach to the case, from investigations that he argued were not properly carried out to alleged use of unreliable witnesses who he contends did not place him anywhere near Kenya's ethnic violence.

The defence argues the prosecution had failed to provide sufficient evidence to prove the existence of the criminal network that is central to the charges of murder, forcible transfer of population and persecution against Ruto.

The Office of The Prosecutor (OTP) has built its case around claims that "Ruto was the head of a multi-faceted network" with a common plan to expel from Rift Valley region Party of National Unity (PNU) supporters and gain power by creating a uniform Orange Democratic Movement voting bloc.

But the defence argues the only trial evidence of purported preparatory meetings comes from prosecution witnesses P-0536, P-0423 and P-0800 but even their evidence "is not sufficient to establish the existence of an 'organisation'".

"The existence of the network is fundamental to the satisfaction of the legal building blocks of the OTP's case. Without it, the case must fail," Khan submits in his application dated October 26, 2015.

"There is nothing in the evidence that establishes that Mr Ruto has a case to answer. The defence respectfully requests the Trial Chamber to enter a judgement of acquittal in respect of the three counts of crimes against humanity with which Mr Ruto is charged," the 95-page document filed before trial judges Chile Eboe-Osuji, Olga Herrera Carbuccia and Robert Fremr reads in part.

Ruto's lawyers argue that while the case was confirmed based upon the statements of six prosecution witnesses, only three appeared before the chamber, of which one disowned his testimony and the others were declared unreliable by the OTP.

The OTP has cited the DP's political muscle in the Rift Valley to argue its case that it was easy for him to call for war due to his massive influence.

More than 1,200 people were killed and some 600,000 others displaced from their homes in the violence following the disputed 2007 presidential vote.

Chief Prosecutor Fatou Bensouda closed her case on September 10, this year, opening the floor for the defence to push for an acquittal.

Khan contends that the OTP had failed to produce sufficient evidence to establish Ruto's individual criminal responsibility for the crimes charged.

Spontaneous reaction

Ruto's lawyers argue the violence was a spontaneous reaction to the declaration of  then President Mwai Kibaki as the winner of the election, triggering protests that Opposition leader Raila Odinga had been robbed of victory.

Khan also poked holes on the Trial Chamber 11 decision to confirm Ruto's charges, saying the judges failed to consider that the Rome Statute had not placed a definition of an organisation or policy in relation to crimes against humanity.

Khan said that the judges, by majority, erred in finding that court had powers to determine whether a group qualifies as an organisation under the Statute on case-to-case basis.

Only one pre-trial chamber judge Hans-Peter Kaul dissented on the cases thrice on the basis that the court lacks jurisdiction.

"The defence submits that Judge Kaul's interpretation of 'organisational policy' and conclusion that this court has no jurisdiction ratione materiae over the present case because the crimes committed during the PEV were not committed pursuant to the policy of a State-like 'organisation' is correct and means the chamber should dismiss the charges for lack of jurisdiction," Khan submitted.

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