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DP William Ruto now off the hook but anxiety to linger on

By Wahome Thuku | April 6th 2016

The decision by the ICC to declare the case that Deputy President William Ruto and radio journalist Joshua arap Sang were facing a mistrial is a milestone in Kenya political dilemma.

So much so that the ICC has left the country almost at the very spot where it found it more than a decade ago.

And in the next weeks and months, the decision by the Trial Chamber V(a) will be the subject of debate in Kenya and beyond.

Is the DP and his co-accused guilty or not guilty of the charges in events that followed the 2007-2008 post-election violence? That question may never be answered.

Declaring a mistrial means that all the proceedings and everything that the court has received in terms of evidence goes down the drain. It's to be assumed that nothing has happened in that court.

Although the prosecution is allowed to charge them again if it so wishes, the records of the proceedings cannot be relied on if the trial is restarted.

Ruto and Sang hoped for a complete end to the trial which began on September 10, 2013.

The fact that the Chamber decided to discharge them retains the anxiety that has followed the cases since inception.

The two were accused of being criminally responsible as indirect co-perpetrators for murder, deportation or forcible transfer of population and persecution. The crimes were committed during the 2007-2008 post-election skirmishes.

Ruto had asked the court to enter a judgment for his acquittal while Sang had asked for a ruling that he has no case to answer. The two may be procedurally different but the outcome, if granted, is the same.

In ruling on a no-case-to-answer motion, the working principle is that if the prosecution evidence adduced in court is not sufficient to convict an accused if he doesn't give his own side of the story, the accused must be acquitted. That principle is observed in most of the criminal proceedings world over.

In many jurisdictions, a mistrial is entered when a case has been severely interfered with by factors that do not necessarily vindicate the accused.

When sections of the country will be celebrating the discharge and the declaration of mistrial, others will be counting the harm of the ruling.

The decision now puts the DP slightly lower than the position of President Uhuru Kenyatta as far as the ICC cases are concerned.

The two trials can be restarted even years down the line should enough evidence against them be gathered. But technically speaking, it would be easier to charge Ruto and Sang afresh than it would be to start Uhuru's case.

The victims who participated as parties in the Ruto/Sang case will never know whether they should or should never refer to the two as not culpable for what befell them.

Certainly, the ICC now ceases to be an item in Uhuru and Ruto's 2017 re-election campaigns.

Observers, however, say that the two could use the ICC as an excuse for any failures that may be pointed against them. They may attempt to convince the voters that they spent too much time of their first term minding about the cases and plead for another term to implement their promises without the impediments of the ICC.

The decision may as well slow down or completely halt any further interest in investigating and bringing to justice any other suspected culprits of the PEV.

The very reasons why the prosecution lacked sufficient evidence against the accused was because crucial witnesses recanted their original statements or refused to testify. This turn of event will certainly water down any efforts to start similar trials in Kenya.

Politically, the ruling does not vindicate Ruto against any involvement in the 2007-2008 PEV. Questions of his integrity and standing as a statesman, both locally and international, still remains unresolved.

Even before Uhuru and Ruto were cleared to run for the presidency in 2013, the High Court had to deal with a petition challenging their suitability to lead the country. The jury is still out.

The mistrial, though indecisive as it is, will give Ruto a political milestone and strengthen his resolve to prove himself against his political adversities particularly in the Rift Valley.

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