Fatou Bensouda reports that witness interference made it difficult to prosecute William Ruto

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A report by a three-expert team blamed collapse of Ruto’s ICC case on witness interference. The team also criticised the former ICC prosecutor Moreno over his shoddy investigations. Ruto was accused alongside five others of instigating crimes against humanity in the 2007/2008 post-election violence. The DP’s case and that of his co-accused was later thrown out.

The prosecution at the Hague-based International Criminal Court (ICC) would have succeeded in the case against Deputy President William Ruto had it not been for witness interference.

An expert team appointed by the ICC Prosecutor Fatou Bensouda blamed the collapse of the case on witness interference without which Ruto would have been successfully prosecuted.

Both Ruto and Uhuru were facing crimes against humanity. The ICC report blamed collapse of Ruto’s case on witness interference.

“Without the witness interference campaign, it is very possible the prosecution would have been successful in the case against Ruto. Even absent this interference, it is much less likely the prosecution would have prevailed in the other cases,” the experts said.

A statement that was also published on the court’s official website on Monday, November 25, placed the former prosecutor Moreno Ocampo at the centre of the mess for the shoddy probe.

Bensouda in her statement said the effectiveness of the investigations and prosecutions was significantly undermined. Photo: International Criminal Court.

Moreno also came under criticism for what was termed as unsound prosecutorial decisions, and his autocratic leadership as well as the general weakness to address witness security concerns. “It may be that the Kenya cases simply reflected the inability of the ICC to adequately respond to the challenges presented in cases against powerful, high-level accused willing to engage in concerted propaganda campaigns and pervasive witness interference,” the report stated.

The Ocampo Six who faced charges relating to crimes against humanity. From left to right; Muthaura, Joshua Sang, Ruto, Uhuru and Henry Kosgey. Photo: Joshua arap Sang.

The statement, however, noted that even in the absence of the inference, it was much less likely the prosecution would have prevailed in the other cases. Ruto was accused alongside President Uhuru Kenyatta and journalist Joshua arap Sang of instigating crimes against humanity in the aftermath of 2007/2008 post-election violence.

On December 5, 2014 the case against Uhuru was withdrawn with the judge citing insufficient evidence. Ruto and Sang’s cases were later dismissed on April 5, 2016 in what the court termed as troubling incidence of witness interference and intolerable political meddling. Others were former police boss Mohammed Ali, Kenya Revenue Authority chairperson Francis Muthaura and politician Henry Kosgey, the three were also acquitted due to lack of evidence.

The DP and the journalist had denied murder, deportation and persecution charges during violence that saw 1,200 people killed. Bensouda in her statement said the effectiveness of the investigations and prosecutions was significantly undermined by the prosecutor’s “decision over assessment” approach to the cases. She said Ocampo used target-based approach to investigating and charging rather than an evidence-based approach.

“The consequence of all the above was that the prosecutions were burdened with weak cases, less than effective investigations resulting in reliance on only one or a small number of insider witnesses whose evidence could not be independently verified by the office of the prosecution (OTP) and whose continued cooperation with the OTP was at risk due to this pervasive witness interference campaign and difficulties with the witness protection programs,” she noted.

At the time of the trial, the prosecution was still struggling to fill evidentiary gaps and was overwhelmed by large, well-resourced defence teams led by very experienced lawyers. The trial teams therefore resorted to filling the significant evidentiary gaps and replacing witnesses who had succumbed to the pervasive witness interference or to disappointments with the protection programs they were in.

“At trial, the prosecution lost many of its witnesses, who either recanted or refused to appear. The trial teams attempted to deal with this serious blow to their cases by quite rightly requesting the judges to admit the prior statements of these witnesses, but were ultimately unsuccessful,” the statement said.

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