On April 17, 2016, President Uhuru Kenyatta took to the podium, raised his hand and swore to a crowd of supporters that he would not allow any other Kenyan to face prosecution outside the country.
In an assuring pitch that attracted thunderous applause, he vowed ‘huko haturudi!’ (we are never going back). The President also declared: ‘imwekwisha!’ (it is done).
This was after the International Criminal Court (ICC) withdrew charges against him and Francis Muthaura, and later dismissed its case against his deputy William Ruto and Joshua Sang.
“I will not allow any other Kenyan to be tried in a foreign court. As a country, we have closed the ICC chapter,” the President promised.
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But the ghost of the ICC that stalked the country has returned to whisk away lawyer Paul Gicheru to The Hague. Ironically, Uhuru’s office cleared Gicheru to stand trial four years after his ebullient declaration during a thanksgiving at Afraha Stadium, Nakuru.
Gicheru, who is the chairman of the Export Processing Zone Authority, is staring at 30 years in jail after ICC Prosecutor Fatou Bensouda slapped him with six counts of bribery and corruptly inducing witnesses to interfere with justice.
Each charge attracts five years behind bars.
The lawyer’s run-in with the law revolves around six witnesses who the Office of the Prosecutor (OTP) says were crucial to its case against Ruto and Joshua arap Sang. With their identities masked, the witnesses are P-397, P-516, P-613, P-800, P-495, and P-536.
Ms Bensouda claims P-397 was promised Sh5 million not to testify. This witness, it is claimed, was approached by Phillip Kipkoech Bett, who is being sought by the ICC, and another unidentified individual and taken to Gicheru.
The witness allegedly received Sh1 million paid in two installments of Sh600,000 and Sh400,000 on April 27 and 30, 2014.
The first count against Gicheru states that he is criminally responsible as a direct co-perpetrator and, in the alternative, for corruptly paying Sh1 million and offering to pay Sh5 million to influence P-397 to withdraw as a prosecution witness in Eldoret.
The second witness, P-516, is said to have met Gicheru in Eldoret sometime in April or May 2013 and discussed terms of his withdrawal. Following the meeting, the court heard, the witness failed to attend a meeting with ICC officials. Again, Bett is alleged to have been the link between the lawyer and the witness.
It is claimed this witness got Sh500,000, which informs the second charge against Gicheru.
Bensouda also accuses Gicheru of proposing to pay off witness P-613 as well as making him a job offer to retract evidence offered to the prosecutor.
The lawyer is alleged to have met the witness on September 13, 2013 to negotiate payment. Bett is said to have also tried to reach out to this witness through one more intermediary.
Another suspect, Walter Barasa, is said to have offered witness P-800 money on July 21, 2013. The OTP alleges that Bett told this witness that Gicheru was negotiating with witnesses and arranging for their withdrawal from the case against Ruto.
According to the OTP, witness P-800 was introduced to Gicheru who allegedly offered Sh1.5 million. This witness later signed an affidavit recanting his evidence and broke off contact with ICC in August 2017.
Witness P-495 is said to have been offered Sh2.5 million and a job. The witness is alleged to have met Bett and Gicheru privately and discussed the terms before accepting the offer.
It is claimed Barasa contacted witness P-536 on numerous occasions between May and August 2013 and allegedly offered a Sh1.4 million and Sh1 million bribe. Barasa is alleged to have told the witness that Gicheru was in charge but he could not contact witnesses directly for fear of being exposed.
If Bett is apprehended or eventually surrenders to the ICC, he will face four counts while Barasa has three charges hanging over his head.
The three suspects, however, have insisted they are innocent. During court hearings to fight extradition orders, they asserted that the OTP had no evidence linking them to the claims of offering bribes and other inducements.
In 2015, Interior minister Joseph Nkaissery moved to the High Court seeking orders to extradite Gicheru, Barasa and Bett. He urged the court to allow the police to search their houses, cart away any evidence and present it to the ICC.
After listening to submissions from the State and ICC victims’ lawyer Wilfred Nderitu, Justice Jessie Lessit released Gicheru and Bett on a personal bond of Sh500,000 each.
They were, however, required to attend court whenever required.
During the hearing, Gicheru told the court that he had dealt with one of the ICC witnesses but in his capacity as a lawyer. He argued that the warrant of arrest issued against him was vitiated by vengeance stemming from his unwillingness to co-operate with the ICC’s investigators and prosecutors in connection with the withdrawal of Samuel Kimeli Kosgei as a witness in the ICC’s Case No. 1.
“The first respondent (Gicheru), being a respectable and able advocate and the chair of the Procurement Review Board, the criminal charges made against him should not be taken lightly. There was an advocate–client relationship between him and his client who had initially made a complaint to the International Criminal Court before seeking his services. There was no evidence of misconduct by the first respondent in representing his client,” his lawyer John Khaminwa argued.
The lawyer also roped in Kimeli in his reply. The witness told the court that Gicheru was his lawyer and had prepared an affidavit on his behalf to recant the evidence he had offered to the OTP.
Kimeli said after the affidavit was sent to the ICC, the prosecutor’s office tried to contact him and Gicheru in a bid to have him change his position but he declined.
Gicheru argued that unless he had acted in contravention of his duty as an advocate, then he could not be found culpable of criminal conduct.
In his defence, Bett claimed that he had no means or money to influence anyone. He said he was running errands when he was informed that the ICC was after him.
Hearing the parties
After hearing the parties, Justice Luka Kimaru lifted the warrant on December 16, 2017. He observed that Nkaissery and the ICC had not complied with the Constitution, the International Crimes Act, and the Rome Statute.
The judge was of the view that at the time the ICC was transmitting the warrant of arrest, the OTP was still investigating the claims and had not supplied the two with evidence.
“It is apparent to this court that the above requests made to the court clearly indicate that the prosecutor of the International Criminal Court was still gathering evidence to prosecute the respondents yet charges have already been laid against them before the International Criminal Court,” said Justice Kimaru.
He continued: “This court holds that in so far as the International Crimes Act provides that an application for the surrender of the respondents to the International Criminal Court can be made without the respondents being supplied with evidence in support of the charge against them, such application is not sustainable and is not within the threshold mandated by the Constitution.”