Deputy President William Ruto’s defence team yesterday dismissed the evidence tabled by ICC prosecutor Fatou Bensouda and asked the trial chamber to end the case with an acquittal as “there is no case to answer”.
Ruto’s lawyer Karim Khan told the trial chamber that the key witnesses that the prosecution had relied on had diminished and the preparatory meetings that it alleged took place before the Post Election Violence (PEV) could not be verified.
In addition, Ruto’s team, while poking holes into Bensouda’s case, also urged the court to subject the prosecution’s evidence to judicial scrutiny as it was clear it had many gaps.
Khan explained that key witness 25, who was a confirmation witness, was withdrawn at the core of the court while witness P24 was never called by the prosecution yet it had lined him up as a confirmation witness.
Further, he argued that witnesses 658 and 743, who were under oath, said they had never been to Ruto’s home as alleged by the prosecution. “No reasonable chamber can say there were planning meetings because the witnesses who made the allegations cannot be relied upon by any alleged imagination.
Two of these witnesses have recanted their evidence, another said he never attended the meeting,” said Khan. According to Khan the evidence by the prosecution “holds no water” as it mainly relied upon meetings that Ruto allegedly attended to plan the 2007-2008 PEV in the Rift Valley yet in some cases, he was not in his home when the alleged meetings were taking place.
In particular, he singled out a meeting that was said to have been held on October 20, 2007 during Kenyatta Day celebrations where Ruto is alleged to have been in his home in Sugoi, yet, at that particular time according to published newspaper articles, he was in Nairobi.
“The only way Mr Ruto can be held liable is by virtue of that entity called organisation or entity of the network which is not in existence,” said Khan. Khan argued that the prosecution is facing difficulties in the case as it is currently asking the court to rely on quantity of evidence and not the reliability.
“The foundations of the case are gone. The allegations of the main meetings for the establishment of the network; all gone, every last one of them,” he said.
In his submission Khan told the judges that the chamber has the right to assess reliability and credibility when a case is completely broken down even as he equated the prosecution allegations to a “torpedo launched on an already sinking ship as the chassis is already broken and the wheels have come off”.
Khan also disputed prosecution’s evidence of an existence of a network that was used to plan the violence. He said that the “military component that was used as the engine to execute the plan has completely disappeared and disintegrated, the political side and the financial component had also disappeared and the continued push by the prosecution to have the case proceed is just a desperate move”.
According to Khan the allegations by the prosecution that Lucas Sang, Sammy Ruto and John Tanui were new members of the network did not add up as there is no evidence that any of them attended a meeting or a rally with Ruto.
“The prosecution is in dire straits in its bid to maintain a criminal organisation, a dismembered organisation.” Khan also accused the prosecution of not being able to differentiate between a king and a spokesperson in reference to Ruto being the spokesperson of the Kalenjin community.
According to Khan, while they alleged that Ruto was the king of the Kalenjin community, there was no prove to it. “The Prosecutor’s evidence shows the opposite. None shows that Ruto the Kalenjin community complied to anything that Ruto did, yet they christened Ruto the king of the Kalenjin community,” said Khan.
Earlier at the beginning of the proceeding judge Osuji warned the defence teams not to engage in a “fishing expedition” but to ensure they table facts to support their arguments.
Osuji also warned the defence teams that should he rule there was a case to answer, then it means there will be a delay in the trial. Ruto is accused of three counts of murder, forcible transfer of populations and persecution following the 2008 violence which left more than 1,000 people dead and more than 500,000 displaced.
After the Prosecutor closed her case last September, the traditional sequence was changed by introduction of the no-case-to-answer motion.
Trial Chamber V (a) which is hearing the case allowed for the filing of the motion seeking to terminate their case before they could call their defence. The Victims’ Legal Representative Wilfred Nderitu is expected to make submissions on the motion by the defence teams today.
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