By Blamuel Njururi – Kenya Confidential Editor-in-Chief, Nairobi – December 10, 2021
The Hague-based International Criminal Court is preparing charges to prosecute Kenya’s Deputy President William Rutoin his role to identify, locate and target actual and perceived Prosecution witnesses following the 2007-2008 post-election violence that claimed over 1,500 innocent lives and billion of shillings in material damage that saw displacement of 3.6 million Kenyans in the Rift Valley. Subsequently ICC was targeted as the enemy.
Anti-ICC sentiment was particularly fierce in the Rift Valley. Persons cooperating with the ICC, particularly suspected witnesses for the Prosecution, were widely regarded as traitors, and were vilified and intimidated in public discourse and in the media, leading to an atmosphere of fear and suspicion. Masking his role in the evil scheme Ruto set a chorus “lets go to Hague, don’t be vague” in parliamentary debate over the violence.
Alongside this general intimidatory climate, it became apparent from the early stages of the OTP’s investigation in 2009 that organised efforts were underway to identify, locate and target actual and perceived Prosecution witnesses in both Kenya cases – facing Ruto and Sang.
This continued unabated throughout the investigation, confirmation proceedings and the Ruto and Sang trial. This clear and ongoing pattern of witness interference in the Ruto and Sang case was documented in a series of filings lodged with the relevant Pre-Trial and Trial Chambers.
Notably, from early 2013 the Prosecution received numerous reports of concerted attempts to identify, contact and corruptly influence Prosecution Witnesses through bribery and intimidation, which ultimately led to the Prosecutor requesting and obtaining arrest warrants against Walter Osipiri Barasa, Gicheru and Phillip Bett.
Eventually, this pattern of witness interference caused a number of Prosecution Witnesses to withdraw and/or recant their evidence, leading to a collapse of the Prosecution case and the vacating of the charges against Ruto and Sang, without prejudice.
The Trial Chamber concluded that “[it] was satisfied that the evidence presented by the Prosecution had amply demonstrated the incidence of witness interference at a disturbing scale”. The ICC case withdrawal was thought necessary to stop large scale of witness murders.
The Prosecution alleges that the offences charged formed part of the greater pattern of interference of witnesses in the Ruto and Sang case and contributed significantly to the vacating of the charges, resulting in a gross miscarriage of justice and a failure of justice for the PEV victims. The filings related to witness interferences stopped in 2013.
Overview of Gicheru’s Individual Criminal Responsibility
Lawyer Gicheru is individually criminally responsible for eight counts of corruptly influencing witnesses contrary to article 70(1)(c), under: (i) article 25(3)(a), for committing the charged offences individually as a direct perpetrator (Counts 1, 2, 4, 5, 7 and 8 only) or jointly with other members of a common plan as a direct co-perpetrator; (ii) article 25(3)(d), for contributing, in any other way, to the commission of the Charged Offences by a group of persons acting pursuant to a common purpose; (iii) article 25(3)(b), for soliciting or inducing the direct perpetrators to commit the Charged Offences; or (iv) article 25(3)(c), for aiding, abetting or otherwise assisting the direct perpetrators in the commission of the Charged Offences.
Ruto’s Common Plan Strategy
The Charged Offences were committed pursuant to, and in the implementation of, an agreement between Gicheru and several persons associated with him in the context of this case, as described below (“the Common Plan”).
The Common Plan encompassed the identification, location and contacting of Prosecution Witnesses, and offering and/or paying them financial benefits, and/or threatening or intimidating them, in order to induce them to withdraw asProsecution Witnesses, refuse to cooperate or cease cooperating with the Prosecution and/or the Court, and/or recant the evidence which they had provided to the Prosecution.
The ultimate goal of the Common Plan was to undermine the Prosecution case in the Ruto and Sang case by preventing Prosecution Witnesses from testifying, either at all or in accordance with the evidence given in their previous statements and/or tarnishing the credibility of the Prosecution and its witnesses.
This included persons having, or believed to have, information relevant to the Prosecution in the Ruto and Sang case, such as P-0341 and P-0274. The Common Plan materialised by April 201367 at the latest and continued until at least the close of the Prosecution’s case in Ruto and Sang on 10 September 2015.
A timeline of key events relevant to the execution of the Common Plan, a relationship chart and a witness overview were annexed to the Prosecution’s written submissions on confirmation are 69 and are incorporated (in ICC Brief) by reference.
The existence of the Common Plan can be inferred from the statements and actions of the Common Plan members and other persons associated with the Common Plan, which establish beyond reasonable doubt that they were working in a concerted manner to achieve the common goals described below.
The members of the Common Plan
The members of the Common Plan consisted of a network of individuals associated-in-fact and acting jointly, at different levels, to realise the objectives of the Common Plan. As confirmed by PTC A,71 these individuals include, at least:
- Managers: Gicheru and, inter alios, Silas Kibet Simatwo and Isaac
- Intermediaries: between the Managers and Prosecution Witnesses, including Meshack Yebei, Philip KipkoechBett, Walter Osipiri
The Managers consisted of a group of influential people associated with and/or supporters of Ruto at the relevant times. They were: a) Gicheru an Eldoret lawyer who informed both P-0397 and P-0800 that he was a close friend of Ruto and that they had attended Kapsabet High School together. Open source evidence confirms that both attended this school.
An analysis of one mobile phone indicates that Ruto was saved as a contact under number +452-722517997. The same number has previously been attributed to Ruto by multiple sources. Gicheru also represented P-0015, who was one of the first Prosecution Witnesses to withdraw, and commissioned an affidavit to this effect on 7 February 2013.
- b) Simatwo was an influential Kenyan businessman and long-time business associate of Simatwo was the head of the board of Directors of AMACO Insurance, a firm with which Ruto is reported to have close connections as a major shareholder and former co-owner. Simatwo was “an eye of Mr Ruto”. “Sila Simotwo” is saved as a contact on mobile phone under number (hidden). The same number was previously saved on the mobile phone of P-0028 under the name “Silas Simatwo”.
Ruto recently dissolved Amaco Insurance to escape paying claims of millions of shillings owed to boda boda, matatuand many other hustlers in life now glaring at impoverishment by a multi-billionaire distributing wheelbarrows to them in the so-dreamt bottom-up phalacy.
Maiyo was the Chairman of the Constituencies Development Fund (ʺCDFʺ) of Eldoret North, a position to which he was appointed when Ruto was MP for the constituency He is widely reported to be one of RUTO’s closest allies. “Maiyo Cdf” is saved as a contact on mobile phone.
The intermediaries consisted of current or former Prosecution witnesses and intermediaries who – by virtue of their past association with the Prosecution and knowledge of, or association with, Prosecution Witnesses – were in a unique position to identify, locate and persuade (their ethnic) Prosecution Witnesses to withdraw as witnesses and/or meet with Gicheruand other Managers.
- The late Yebei , a human rights worker. He introduced witness P-0471, to the Prosecution. Yebei gave a statement to the Prosecution, whose 2013 request to add him to its trial witness list was refused after the Prosecution reported to TC V that it had received information regarding his alleged involvement in witness interference. The Prosecution sought a warrant for Yebei’s arrest, but withdrew the request after confirmation of his unexplained death.
- Bett was a human rights worker for the Kalenjin Youth Alliance (ʺKALYAʺ) and friend of Bett who was a childhood friend of Yebei, and a neighbour. Bett initially provided information about attempts to interfere with Prosecution Witnesses – However, he was subsequently also corrupted and co-opted into the Common Plan as an Intermediary, answerable to Gicheru.
- “Phillip Bett” is saved as a contact on mobile phone. On 10 March 2015, PTC II issued a warrant for the arrest of Bett, but to date the Kenyan authorities have not surrendered him to the Court.
- c) Barasa was a journalist from Eldoret and former OTP intermediary. Two phone numbers previously attributed by the Prosecution to Barasa are saved in the contact list on mobile phone as follows: (i) “Baraza” saved under number (hidden) which is attributed by multiple sources to Barasa; and “Wb” saved under number , which has also been associated with Barasa during OTP investigations.
On 2 August 2013, PTC II issued a warrant for the arrest of Barasa, but to date the Kenyan authorities have not surrendered him to the Court.
Other individuals contributing to the activities of the Common Plan
Several other individuals, including Corrupted Witnesses, espoused the Common Plan and participated in the criminal activities that were carried out in the context thereof (“Associates”). They played important roles in the events surrounding the corrupt influencing of one or more of the eight Prosecution Witnesses. PTC A found that these Associates intervened “once to contact and try to convince one single other witness (except for P-0800)”.
Although PTC A found that these contributions do not meet the legal threshold for an essential contribution, the Chamber is not bound by that legal assessment and is free to apply the law to the facts as confirmed by PTC A.
As correctly held by PTC A in its Confirmation Decision, it is not necessary for the co-perpetrators to make an essential contribution to each criminal incident; none of the co-perpetrators has overall control over the offence because they all depend on one another for its commission; and the co-perpetrator must have control over the crime and the power to frustrate it.
The Prosecution submits that it has not yet been authoritatively decided whether or not it is necessary to prove that that the contributions of non-charged co-perpetrators meet the “essential contribution” threshold. However, it is unnecessary to decide this issue since – assuming arguendo that it is – the Prosecution submits that PTC A erred in law in finding that an essential contribution must be made to the Common Plan as a whole, when as a matter of law, an essential contribution to the commission of any crime (or – in an article 70 case – offence) committed as part of the Common Plan would suffice.
PTC A confirmed that each of the Associates contributed to at least one of the Charged Offences. The Prosecution submits that these contributions by the Associates can be characterised as essential contributions to those Charged Offences that were committed as part of the Common Plan.
Since no interlocutory appeals are permitted Article 70 prosecutions, the Prosecution could not seek correction of this error by the Appeals Chamber. However, the Chamber is free to legally recharacterise the Associates’ contributions to the Charged Offences within the context of the Common Plan as “essential” pursuant to regulation 55 of the Regulations of the Court. This way their conduct can be attributed to Gicheru pursuant to article 25(3)(a).
The Prosecution thus requests the Chamber to give the Defence notice of a possible recharacterisation to that effect pursuant to regulation 55(2).
The Common Plan Associates included:
- a) Elisha Kipkorir Busienei. Busienei was a former ODM member and political ally of Ruto. In 2013 he became a Kenyan Member of Parliament (“MP”) for the Turbo constituency. “Busienei 2 Mp” is saved as a contact on mobile phone. The Prosecution has previously attributed the associated number to Busienei.
- b) Sammy Kiptanui Kosgei. Kosgei was a former witness in the CIPEV and Kenya National Commission on Human Rights investigations into the PEV, who was provided as a lead to the Prosecution, but never interviewed. Kosgei reported to the KNCHR that he had been threatened due to his involvement with the investigations Kosgei later recanted his CIPEV evidence123 and publically claimed he had been coached by witness 124.
- c) Successfully corrupted Prosecution Witnesses,125 including P-0397, P-0800, P- 0495, P-0516, and P-0341, described more fully below under the individual incidents concerning them, who subsequently also acted as intermediaries and helped to further the objectives of the Common Plan.
A contact corresponding to Corrupted Witness P-0495 (saved as under number xxxxx was found on mobile phone. Former Prosecution Witness (P-0015). CIPEV witness, screened by the OTP, (P-0017). Gicheru’s P-0341, KEN-OTP-0150-0255-R01 at 0263, paras. 36-41, at 0266, paras.
The implementation of the Common Plan
In order to implement the Common Plan, the Common Plan Members each provided essential contributions.
- Gicheru and other Managers were responsible for the essential tasks of directing and coordinating the activities of Common Plan Members; deciding which Prosecution Witnesses should be targeted; negotiating and deciding how much they would be offered and/or paid; ensuring that the necessary finances were available to pay the Bribes agreed, or at least a portion thereof; and intimidating Prosecution Witnesses with threats of adverse consequences if they failed to cooperate.
- Simatwo and Maiyo also made essential contributions to the Charged Offences inter alia by working with Gicheruto coordinate with Ruto and participating in meetings between Gicheru and Prosecution Witnesses during which they were corruptly influenced. In some instances they also contacted Prosecution Witnesses telephonically in furtherance of the Common Plan.
- Intermediaries made essential contributions to the Charged Offences by identifying, locating and contacting Prosecution Witnesses; offering them Bribes to leave their protection locations and/or meet with Gicheru and other Managers, in order to negotiate the amount and terms of the Bribes, in return for withdrawing as witnesses and/or recanting their evidence, and conveying threats of adverse consequences should they fail to cooperate.
- Intermediaries thus provided an essential link between the Managers and the Prosecution Witnesses. many Prosecution trial witnesses for their security, particularly linkage witnesses,
- Due to the Intermediaries’ previous interactions with the ICC and/or their prior association with various witnesses, they were in a unique position to locate and contact Prosecution Witnesses and to persuade them to withdraw as witnesses and/or meet with Gicheru and other Managers for this purpose.
- As witnesses were successfully corrupted, Managers leveraged their relationships with other Prosecution Witnesses to repeat this process.
- Certain Associates also made essential contributions to at least one of the Charged Offences in furtherance of the Common Plan, which actions may accordingly be attributed to Gicheru under article 25(3)(a) (Co-perpetration).
The Prosecution submits that at least the following Associates made essential contributions to one or more Charged Offences:
- a) P-0397, with respect to Count 2 (P-0516);
- b) P-0800, with respect to Counts 3 (P-0613) and 5 (P-0495);
- c) P-0495, with respect to Count 3 (P-0613);
- d) Kosgei, with respect to Count 7 (P-0341);
- e) Kogo, with respect to Counts 1 (P-0397) and 7 (P-0341); and
- f) P-0341, with respect to Count 8 (P-0274).
- Gicheru’s essential contribution to the Charged Offences committed in the context of the Common Plan
Gicheru made an essential contribution to the Charged Offences committed in the context of the Common Plan through the actions specified below, individually and cumulatively:
- a) Playing the leading role in coordinating the activities of the members of the Common Plan, including by assigning tasks, setting priorities, arranging meetings and providing funds for necessary expenses;
- b) Using his law office, centrally located at Veecam House in Eldoret, as an operations centre from which he was able to direct the activities of Intermediaries and Corrupted Witnesses, and leveraging his influence as a prominent member of the community and the legal profession to advance the aims of the Common Plan;
- c) Issuing instructions to Intermediaries and Associates, in particular to locate, contact and corruptly influence Prosecution Witnesses139 and by promising and/or paying them financial rewards if they succeeded;
- d) Meeting in person with certain Prosecution Witnesses; negotiating and and/or paying them Bribes in exchange for their withdrawing as witnesses, ceasing cooperation with the Prosecution and/or the Court,142 and/or recanting their evidence; and threatening them with adverse consequences if they failed to comply;
- e) Acting as a link between the funders and/or beneficiaries of the Common Plan, including Ruto, and the Intermediaries and Associates;
- f) Acting as the conduit for the payment of the Bribes to the Corrupted Witnesses; and
- g) Arranging for Corrupted Witnesses to sign affidavits recording their decisions to withdraw as Prosecution Witnesses and/or recanting material aspects of heir previous evidence and/or making false assertions undermining the Prosecution’s case against Ruto and
Without Gicheru’s aforementioned contributions, financed by Ruto, the commission of the Charged Offences would not have been committed, or would have been committed in a significantly different way.
Don’t miss Part 3 of the expose of the callous conspiracy that sabotaged justice for Kenyans butchered in 2007-2008 massacre