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Defining time at ICC as DP William Ruto, Joshua arap Sang and Fatou Bensouda make submissions

By Wilfred Ayaga | January 12th 2016

Deputy President William Ruto yesterday arrived in The Netherlands where he is scheduled to attend the hearings of 'no case to answer' motion at the International Criminal Court.

Starting today, Ruto and his co-accused Joshua arap Sang will seek to convince ICC judges that Prosecutor Fatou Bensouda has no case against them.

It is a make-or-break week for the two since a favourable ruling will see the case dismissed.

But an adverse ruling against the two will set in motion another round of an adversarial court room contest, with a legal obligation they adduce their exonerating evidence.

"It is a significant state in the trial process and the court will seek to apply justice and play on a fair ground. The court has to be fair to both parties," said Dr Peter Onyango, an international law expert and lecturer at the University of Nairobi.

In their submissions this week, Ruto and Sang will make spirited efforts to convince the court that they are victims of a shoddy investigations hinged on hearsay, gossip and speculation.

According to the defence, not even evidence adduced by physically present witnesses can stand the test of judicial scrutiny, leave alone recanted testimony that was admitted through Rule 68.

Throughout the trial, the prosecutor has maintained that Ruto and Sang were key cogs in the wheels of terror that caused havoc in parts of the Rift Valley during the 2007/2008 post-election violence – committing rape, murder and forceful transfer of populations.

During this week's hearings, Bensouda will show why the three charges against them should be sustained and the two put on their defence.

It is the Prosecutor's case that the deputy president abetted or aided in the commission of crimes against humanity, including at Kiambaa church where she alleges "...between 17 and 35 people were burned inside the church, including babies and children," while Sang was part of the 'network' as he broadcasted messages and attended meetings aimed at uprooting rivals political supporters from the Rift Valley.

Although the former journalist argues that media broadcasts are protected in international law under the right to free expression, the prosecutor has pointed out that "such protection is not accorded to "all forms of expression which spread, incite, promote or justify hatred based n intolerance."

In their final assault to define the direction of the case, both the prosecutor and the defence will also return to arguments on whether there was indeed a 'network' or an 'organisational policy' that supported the commission of the alleged crimes. The existence of the twin elements is a key pillar that could either make or break the prosecutor's case and has been a giant platform on which the prosecution and the defence teams have spurred throughout the trial.

While Bensouda has maintained that indeed the two ingredients did exist, the defence teams have relied on a dissenting opinion by the late Justice Hans Peter Kaul that the trial judges erred in giving a broad definition to 'organisational policy' and that the crimes committed in Kenya at the time do not fall under the purview of the court.

The two accused will argue that such a network exists only in the prosecutor's mind and that she has failed the ultimate test of a prosecutor in advancing the cause of justice.

"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," Ruto and Sang will submit in their no-case to answer motion.

Ruto and Sang are in The Hague  to attend what is arguably the trial's most defining moment, and whose outcome will have repercussions at home and to the credibility of the court.

Judges Chile Eboe-Osuji (Presiding), Olga Herrera Carbuccia and Robert Fremr will also receive oral submissions from lawyer for victims during the three-day hearings.

Another ruling on the applicability of Rule 68 which allowed for the admission of recanted testimony in the two cases is also being awaited, and the prosecutor has been calling for the ruling to be made before the no-case to answer motions.

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