ICC judges throw out Ruto case
Mr Ruto's lawyer Katwa Kigen filed the application on December 9 at the ICC Pre-Trial Chamber requesting that his client's case be heard before Mr Ocampo presented a case against six Kenyan personalities in connection with the post-election violence.

Mr Ruto had also wanted Mr Ocampo stopped from applying for any summons against those he intended to prosecute in connection with the 2007-2008-post election violence until he undertook fresh investigations without relying on previous reports.

The application was filed a week before Mr Ocampo presented a case against Mr Ruto and five others whom the prosecutor argues bore greatest responsibility over the post election violence.

In his application, Mr Ruto had wanted to appear as amicus curie (friend of the court) under rule 103 of the Rules of Procedure and Evidence.

In their ruling Ekaterina Trendafilova (presiding judge), Hans-Peter Kau and Cuno Tarfusser said the Mr Ruto cannot appear as amicus curie since he is a subject of investigations by the Court's prosecutor.

"A plain reading of rule 103(2) of the Rules clearly excludes a person, subject to the Court's investigation, from submitting an application pursuant to the said rule.  It is unfeasible that the said person be permitted to submit an amicus curiae application and/or observation and subsequently be called upon to respond to his or her own observations," the judges ruled in the unanimous decision.

"If rule 103 of the Rules was meant to permit a person under the Court's investigation to submit amicus curiae observations, it would have excluded him or her from responding to his or her own observations. The core rationale underlying an amicus curiae submission is that the Chamber be assisted in the determination of the case by an independent and impartial intervener having no other standing in the proceedings."

"Accordingly, the Applicant cannot be granted leave to submit observations. It follows that the second request outlined in the Application and any other request (namely, the first and third requests) developed on the basis of this provision, must be rejected."

Mr Ocampo is seeking to indict Mr Ruto, Deputy Prime Minister Uhuru Kenyatta, former Industrialisation Minister Henry Kosgey, Head of Public Service Francis Muthaura, former Police Commissioner Maj Gen Hussein Ali and journalist Joshua arap Sang.

Mr Kigen told Capital News: " I just got my ruling from the ICC... the application was dismissed."

Mr Ruto had claimed that Mr Ocampo had linked him to the post election violence based on a report by Kenya National Human Rights Commission without conducting his own independent investigation.

In the application, Mr Ruto contended that he stood to suffer irreparable harm if the prosecutor decided to present a criminal case that included his name before the ICC judges.

He said he believed the prosecutor formed an opinion that he could be a suspect because he was adversely mentioned by the Waki and the Kenya National Commission on Human Rights reports.

Mr Ruto said there was no way the prosecutor could claim to have conducted his own investigation, considering that the agreement between the ICC and the Kenya Government granting the ICC investigators status, immunities and privileges and authorising them to operate in Kenya was signed in September 2010, yet from as far back as April 2010, the prosecutor had started writing to "suspects" including Mr Ruto and requiring them to explain what they know about the post-election violence of 2007-2008.

He argued that it appeared the Prosecutor was relying on the investigations of others rather than his own to identify witnesses, thereby violating the law.

The main grounds for Mr Ruto's application filed through lawyer Katwa Kigen in The Hague were that:

(a) The Prosecutor has failed to conduct his own independent, fair and impartial investigations as required by the law, instead he continues to rely on and publicly defend the reports compiled by others.

(b) The Prosecutor has failed to comply with article 54(1) of the Rome Statute to investigate both incriminating and exonerating evidence equally, by particularly refusing to investigate the veracity of claims made under the oaths and statutory declarations Act to the effect that witnesses were induced, coached and compromised to implicate Mr Ruto with the post-election violence of 2007-2008. Instead, the Prosecutor "disowned" the witnesses in question rather than questioning them together with those who had coached them, to establish the authenticity of the claims.

(c) Until now, the Prosecutor has failed to provide him with any specific allegations made against him with respect to the post-election violence thereby denying him an opportunity to exonerate himself, seriously prejudicing his right under article 55(2) of the Rome Statute as a person who has been interviewed by the prosecutor and his right to be presumed innocent provided for under article 66 of the statute

In the application, Mr Ruto requested the court to:

1) Supervise the investigations and ensure that they are done in accordance with the law.

2) Compel the Prosecutor to conduct his own independent, fair, impartial investigations and to stop defending the reports of investigations done by others.

3) Compel the Prosecutor to investigate rather than dismiss evidence exonerating Mr Ruto, especially claims that certain witnesses were induced, coached and compromised to implicate him.

4) Restrain the Prosecutor from applying for any summons to appear or warrants of arrest with respect to Kenya's post election violence before this application is heard and determined.

Mr Ruto travelled to The Hague on November 4 where he engaged the ICC investigators for three days and claimed to have set the records straight on his alleged role in the post election violence.

The Eldoret North MP has been accusing the Kenya National Commission on Human Rights of bribing witnesses to give false evidence to the ICC.
 

Vacancy

Independent Legal Consultant.

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