By Blamuel Njururi, Kenya Confidential Editor-in-Chief, Nairobi – December 12, 2021
The ICC document further states that Deputy President William Ruto’s lawyer Paul Gicheru meant to engage in his (corruption) conduct and intended to commit the Charged Offences or was aware that the implementation of the Common Plan would, in the ordinary course of events, result in the commission of offences of the type he is charged of in Counts 1 to 8.
Gicheru was also aware that the Common Plan included an essential criminal component, namely the commission of the type of offences charged in Counts 1 to 8. He was aware of his essential role in and contribution to the implementation of the Common Plan, as well as the co-perpetrators’ joint control over the commission of the Charged Offences.
The material facts establishing the existence of the subjective elements of article 25(3)(a) [co-perpetration] are detailed in section vi. below and the sections on criminal responsibility under each specific incident. Facts common to all incidents: article 25(3)(d) – contributing, in any other way, to the commission of the offences.
Existence of a Common Purpose to commit the charged offences
Alternatively, Gicheru contributed to the commission of the Charged Offences by a group of persons acting pursuant to a common purpose to corruptly influence Prosecution Witnesses by committing the types of offences charged in Counts 1 to 8. The Common Purpose materialised at the latest extemporaneously with the commission of the offences in question.
As described in section II. ii. above, the listed persons participated in a Common Plan to, inter alia, corruptly influence Prosecution Witnesses. This Common Plan encompassed the Common Purpose to commit offences within the jurisdiction of the Court, namely corruptly influencing witnesses contrary to article 70(1)(c).
Thus, the members of the Common Plan ipso facto also shared the Common Purpose. As found by the PTC, the Associates, including Busienei, Kosgei, Kogo, P-0397, P-0800, P-0516, P-0495 and P-0341, also contributed to the commission or attempted commission of, at least one of the Charged Offences.
The evidence establishes that each of the Associates shared the Common Purpose to corruptly influencing Prosecution Witnesses in contravention of article 70(1)(c).
The material facts establishing the existence of the subjective elements of article 25(3)(b) are detailed in section vi and the sections on criminal responsibility under each specific incident. Facts common to all incidents: article 25(3)(c) – aiding, abetting or otherwise assisting in the commission of the offences;
Gicheru’s acts of assistance to the commission of the offences
Alternatively, Gicheru aided, abetted or otherwise assisted the Direct Perpetrators for the purpose of facilitating the commission of the Charged Offences through the actions individually and cumulatively:
- Coordinating and directing the activities of Direct Perpetrators, including by assigning tasks, setting priorities, arranging meetings and providing funds for necessary expenses;
- Instructing or encouraging, Direct Perpetrators to identify and locate Prosecution Witnesses, to corruptly influence them and to bring them to meet Gicheru,
- Meeting with Prosecution Witnesses158 and negotiating the Bribes to be paid to them in exchange for their withdrawing as witnesses, ceasing cooperation with the Prosecution and/or the Court, and/or recanting their evidence;
- Arranging for Corrupted Witnesses to sign affidavits recording their decisions to withdraw as Prosecution Witnesses and/or recanting the material aspects of their previous evidence and/or making false assertions undermining the Prosecution’s case against Ruto and Sang.
- Acting as a link between the funders and/or beneficiaries of the Common Plan, including Ruto, and the Direct Perpetrators; and/or acting as the conduit for the payment of the Bribes to the Corrupted Witnesses.
Subjective elements of aiding, abetting or otherwise assisting crime
Gicheru was aware that the Direct Perpetrators would, in the ordinary course of events, commit the type of offences charged in Counts 1 to 8. He further assisted in, for the purpose of facilitating, the commission of the Charged Offences.
The material facts establishing the existence of the subjective elements of article 25(3)(c) are detailed in section vi. below and the sections on criminal responsibility under each specific incident.
Statement of Material Facts common to subjective elements.
Since there is a significant overlap between the subjective elements for the offences charged and the various modes of liability alleged, there is also a substantial overlap of the material facts from which these subjective elements may be inferred.
It is thus convenient to group these facts under one heading to avoid repetition.. While subjective elements must ultimately be inferred from an assessment of all the evidence before a Chamber, including the entire course of conduct of the Accused, the following facts are particularly material:
Gicheru intention to engage in his conduct and to commit the Charged Offences, in the sense of: acting with the purposeful will (intent) or desire to bring about the material elements of the offences; and/or intentionally making an essential contribution to the Common Plan; and/or intentionally contributing to the commission of the Charged Offences by the specified persons acting pursuant to the Common Purpose, to further the criminal activity or the criminal purpose of members of the Common Purpose who committed those offences; 166 and/or meaning (intending) to induce or solicit; and/or to aid, abet or otherwise assist the Direct Perpetrators to commit those offences; may be inferred in particular from the following facts:
- a) GIicheru’s direct involvement in planning, and instructing Intermediaries and Associates, to locate and contact Prosecution Witnesses for the purpose. of corruptly influencing them to withdraw as witnesses;
- b) Gicheru’s direct involvement in offering and/or paying substantial sums of money and other benefits to Prosecution Witnesses P-0397, P-0800, P-0495, P-0516, P-0341174 and P-0274175 that would, in the ordinary course of events, be sufficient to influence the will of a witness;
- c) Gicheru’s direct involvement in persuading Prosecution Witnesses to withdraw as witnesses;
- Gicheru’s s direct involvement in arranging for Prosecution Witnesses to sign affidavits confirming their decision to withdraw and/or recant their evidence;
- Gicheru’s instructions to Intermediaries and Associates, to locate and contact Prosecution Witnesses in order to corruptly influence them and/or to bring them to meet with him, and his funding of necessary expenses for this purpose;
- Gicheru’s direct involvement in arranging the finances for the payment ofBribes; and
- Gicheru’s coordination of the activities of members of the Common Plan and/or Common Purpose and/or Direct Perpetrators knowledge. Gicheru’s knowledge that his actions; and/or the implementation of the
Common Plan and/or Common Purpose; and/or the actions of the Direct Perpetrators induced or solicited by him; and/or aided, abetted or otherwise assisted by him; would bring about the material elements of the Charged Offences, may be inferred in particular from the following facts:
- The facts listed under section, 1) to 4) above;
- The fact that Gicheru had direct knowledge that P-0397, P-0800, P-0495, P-0516 and P-0341 agreed to withdraw as Prosecution Witnesses and/or to refuse to become witnesses if asked and/or actually signed affidavits to that effect and/or agreed to contact other Prosecution Witnesses and bring them to meet with Gicheru; and
- The steps taken by Gicheru to avoid detection, including: refusing to record the agreements with the Corrupted Witnesses in writing; paying Corrupted Witnesses in cash only to avoid bank records;189 instructing the Corrupted Witnesses not to deposit cash payments into their bank accounts; instructing payments to be made through third persons; instructing Intermediaries and Corrupted Witnesses to take precautions including when communicating by telephone; and taking measures to ensure that lead counsel for Ruto (Karim Khan now ICC Prosecutor) was not aware of the activities of the Common Plan members.
First Incident: Corruptly influencing Witness P-0397
Introduction. (ʺP-0397ʺ) was a Prosecution Witness who provided evidence regarding the PEV in Kenya. He also provided important evidence about meetings at which Ruto allegedly incited and organised violence against ethnic Kikuyu.
Between April 2013 and January 2014 Kenya, Gicheru together corruptly influenced P-0397 by offering him a bribe of Ksh 5,000,000 in cash instalments and/or threatening him, to withdraw as a Prosecution Witness and cease cooperating with the ICC, to sign an affidavit to that effect and to approach other Prosecution Witnesses on behalf of Gicheru and his associates.
Gicheru paid P-0397 a total of Ksh 1,000,000 and organised his withdrawal as a Prosecution Witness by directing him to sign an affidavit.197 Subsequently, GIicheru and Yebei solicited or induced P-0397 to approach and corruptly influence P-0516. TC A confirmed the charges for the offence set out in article 70(1)(c) of the Statute with respect to P-0397.
Corruptly influencing P-0397
On 18 February 2013, P-0397’s identity as a Prosecution trial witness was disclosed to the Ruto and Sang Defence. On 20 April 2013, ICC investigators visited P-0397. They asked if he was an ICC witness, which P-0397 denied. They told P-0397 that there was a group of persons working for Ruto who were instructed to identify ICC witnesses and offer them bribery payments in exchange for their withdrawal as Prosecution Witnesses.
P-0397 explained in a later interview with the Prosecution that “acting like brokers; they identify witnesses and tell that group, and then they facilitate by giving of money, and then they also receive their own remuneration.”
They told P-0397 that they would return to take him to meet this group of people. On or about 26 April 2013, Ruto agents took P-0397 to Gicheru. Gicheru spoke to P-0397 privately and told him that he (Gicheru) had heard that P-0397 was an ICC witness. Gicheru asked P-0397 to assist him by withdrawing as a witness against Ruto.
Gicheru told P-0397 that Ruto wanted P-0397 to identify other Prosecution Witnesses and bring them to him (Gicheru). Gicheru also said that he was very close friends with Ruto and they had attended Kapsabet High School together.
Gicheru asked P-0397 to state his price in exchange for his withdrawal as an ICC witness. P-0397 requested Ksh 10,000,000. Gicheru explained that must be consulted concerning money and the amount to be paid to witnesses, and that Ruto had given him the authority to pay witnesses. Gicheru told Ruto that P-0397 was a witness and must be paid.
After some negotiation, they agreed on a sum of Ksh 5,000,000 in cash instalments. Gicheru gave his business card to P-0397,220 who later handed it to the OTP.
The next day, 27 April 2013, Gicheru paid P-0397 a cash instalment of Ksh 600,000 P-0397 kept Ksh 100,000 and deposited Ksh 500,000 into his bank account. He did so despite Gicheru’s warning not to deposit the money in the bank to avoid detection by the “ICC people”, as he was afraid of getting robbed.
The above is the kind of evidence ICC intends use to hook Ruto as the mastermind in intimidating, corrupting and bribing witnesses whose withdrawal and recanting their evidence collapsed the case against him.
Don’t miss Part – 4 of Ruto’s thrilling conspiracy to defeat justice