If the charges are confirmed, Ruto's goose is cooked

Kenya's Case 1 before the International Criminal Court, in which Confirmation of Charges Hearing was concluded before the Pre-trial Chamber II this past week, was an eye-opener. As expected, William Ruto and his defense team went for the Prosecutor's jugular, sparing no effort to paint his case as weak and motivated by malice. In this, Hon Ruto was joined by radio-man Joshua arap Sang and his defense team. Both decided to call live witnesses to proffer testimony that the violence that wracked Kenya in 2007 and 2008 was spontaneous, that the two suspects did not act in concert within a network, and, alternatively, that if they were to be charged with the masterminding the violence, they did so under the command of the Prime Minister, Raila Odinga. In contrast, Henry Kosgey and his defense team chose to confine their strategy to the matter at hand - whether or not the charges should be confirmed, hence the fact that Hon Kosgey did not testify (as his fellow suspects chose to do) or call live witnesses to testify on his behalf. In this, Hon Kosgey, who has also eschewed public statements regarding his innocence, he resembles Maj Gen (Rtd) Hussein Ali and Amb Francis Muthaura, the suspects in Kenya's Case 2. Uhuru Kenyatta completes the second triumvirate and resembles Hon Ruto and Mr Sang in his public statements. It remains to be seen whether the suspects in the second case will follow Hon Kosgey's lead or Hon Ruto's and Mr Sang's.

Hon Ruto and Mr Sang and their defense teams seem to have forgotten, or ignored, the fact that the Rome Statute on the International Criminal Court did not establish an adversarial system in the same mould as the common law system from whence they come. The Rome Statute seems to have borrowed heavily from continental Europe's civil law tradition, where they give the court enormous powers to investigate and determine matters, and where the relationship between the court and the prosecution service is far more closer than in an otherwise adversarial system. While it is a toss-up whether the charges will be confirmed against the three, legal eagles familiar with the latter system are persuaded that the Prosecutor has met his burden and that the charges will be confirmed against Messrs Ruto, Kosgey and Sang. In their opinion, the question of whether the Prosecutor conducted credible investigations to warrant bringing charges against the three will only be determined by the Court at trial and not at the stage of the Confirmation of Charges. They argue further that the defense teams should have taken their cue from Judge Hans-Peter Kaul who wrote a dissenting opinion when the Prosecutor sought permission from the Court to open investigations into the Kenya situation back in March 2010. They should have relied on the premise that if offences were committed in Kenya, they did not rise to offenses that could be tried at the ICC.

Hon Ruto and his loudly supportive allies are determined to lay the blame for their tribulations at the feet of the Prime Minister. However, Hon Odinga and President Kibaki, the two principals in Kenya's Grand Coalition Government, went out of their way to persuade, unsuccessfully, them to permit a local mechanism to investigate and try the PEV cases in Kenya. Hon Ruto and Hon Kenyatta led the National Assembly in rejecting the Prime Minister's proposal, advocating that the matter be handled by an international tribunal where Kenyans would not be able of interfering. They got their wish and now they are crying foul.

In all this, the suspects, especially the politicians, have their eyes firmly on the presidential elections in 2012, one might say, to the total exclusion of sound legal strategy to protect themselves from the attentions of the ICC. In fact, what Hon Charles Keter, one of Hon Ruto's staunchest allies, did during his sojourn in The Hague confirms that in their animus against the Prime Minister, Hon Ruto and his supporters are unwilling to advance a legally credible defense if it means admitting that they made the wrong move in choosing The Hague over a local mechanism. Hon Ruto is a keen observer of Kenya's political landscape and he knows that regardless of what the opinion polls say, if he is a presidential candidate in 2012, he will be facing Hon Odinga at the hustings. He must have observed that the PM is no longer the President's arch-nemesis, but that the two have found a way of working together to achieve common goals and he is scared that if their relationship continues without acrimony into 2012, the PM may find a way of leveraging the successes of the government as proof that he is ready to take on the onerous role of President of Kenya. This is something that Hon Ruto and his allies do not want and if his pride prevents him from surmounting the relatively small hurdle of the ICC he will have only himself to blame when Raila Odinga gets sworn is as Kenya's fourth president.