Evidence from Hague and AU stand to test UhuRuto unity

Evidence reeling out of the International Criminal Court (ICC) may yet prove to be a major challenge to the relations within the Jubilee Alliance between President Uhuru Kenyatta and his Deputy William Ruto.

Three key events in the last week should awaken the interest of Kenyans.

First, on October 12, the African Union heads of state held the 15th Extraordinary Summit at which they advised the President and his Deputy not to honour their trials at The Hague. The AU also decided that they would be seeking a deferral of the cases against the two before the United Nations Security Council.

On Monday, Mr Ruto confirmed that the deferral request had been filed at the Security Council. Subsequent to that, Foreign Secretary Amina Mohamed left for Prague to lobby the Security Council members to take up the AU request. (READ: AU resolves to shield UhuRuto from ICC)

But despite the AU advice, Mr Ruto returned to The Hague on Monday to continue with his trial. But he said he was not disregarding the AU position.

“The AU resolution was very clear that there would be a five- member heads of state delegation that would pursue the matter of deferral of the Kenyan case with the UN Security Council. That exercise is not yet concluded, and therefore we cannot take a decision in a vacuum,” he said.

In Nairobi, TNA officials Johnson Sakaja and Onyango Oloo were asking the President to heed the AU’s advice and skip the trials. But Majority Deputy Whip Ben Washiali asked President Kenyatta to attend his trials. (READ:New hurdle for Uhuru in ICC case)

“We are getting advice from various stakeholders including the AU, but in the end it would be upon us Kenyans to find the best way possible out of the situation in which we are,” Mr Washiali, the Mumias MP, said.

“We should go the way the deputy president is going. Given the testimonies we are hearing from witnesses, I don’t see why one would want to abscond. The evidence we are getting cannot incriminate anybody and, therefore, if I was in the same situation, I would not want to skip,” he added.

Mr Ruto’s press conference last Monday in the The Hague also signalled a situation in which he and the President seemed to be reading from different scripts. While the President, with the support of the AU, wants a deferral, Mr Ruto was suggesting that the deferral should only be granted in case the ICC rejects their request to be excused from attending all sessions of the trials.

ARTICLE 63
Trial Chamber V had granted Mr Ruto conditional excusal from the trials, which ICC Prosecutor Fatou Bensouda appealed on grounds that Article 63 of the Rome Statute requires the accused person to be physically present in the court. The Appeals Chamber also suspended the Trial Chamber’s conditional excusal granted to the deputy president, which has forced Mr Ruto to make frequent trips between Nairobi and The Hague. 

On Friday, the Trial Chamber, again by majority ruling, granted President Kenyatta conditional excusal from the trial, citing his executive role as Head of State. According to Mr Ruto, his preference would be to have the cases continue but in their absence.

“It would not be necessary for us to pursue the issues of deferral if we can get the issues of excusal sorted out. Indeed that is our preference because we are people who believe in the rule of law, and we want to go ahead with accountability. We do not want to short-change the system,” Mr Ruto said.

“Our preference is that we want these cases to proceed to their logical conclusion because we are confident that finally we shall be discharged of these allegations, and we would be proven to be innocent because indeed we are innocent,” he said.

The Deputy President added: “It is our concern that we do not want to prolong matters in court. We are clear in our minds that this is a matter that should be concluded in the shortest time possible. The sooner this is put behind us the better.”

Then on Wednesday, the gloves were off again with Mr Ruto openly accusing the Party of National Unity (PNU) and officials serving in President Mwai Kibaki’s government of “fixing” him.

Mr Ruto’s defence lawyer Shyamala Alagendra told the trial chamber as she cross-examined the third prosecution witness 189 that close confidantes of former President Kibaki and PNU officials were responsible for sourcing and offering protection to witnesses who incriminated Mr Ruto before the Waki Commission. She listed those who “framed” Mr Ruto as former Justice minister Martha Karua, Mutea Iringo who was then deputy permanent secretary for Internal Security, and President Kibaki’s former political affairs director Nancy Gitau.

Both Mr Iringo and Ms Gitau are serving the Jubilee government as principal secretary for Internal Security and adviser to President Kenyatta respectively.Mr Iringo, the Ruto defence said, oversaw a witness protection scheme and the disbursement of cash to those who agreed to testify against Mr Ruto during the Waki Commission hearings.

PNU, Ms Alagendra said, used lawyers Kamotho Waiganjo, currently a commissioner with the Constitution Implementation Commission (CIC), Mr Njenga Mwangi, Mr Peter Maundu and Mr George Morara who was in the Vijana na Kibaki lobby that also included Mr Joseph Njoroge, Mr Evans Gor Semelang’o, Mr Jack Wamboka and Mr Thomas Mbewa.

PROCURE WITNESSES

This group of lawyers, the defence suggested and the witness confirmed, were “in a way associated in some way with PNU” and went to Eldoret in advance of the Waki Commission to procure witnesses who would testify against Mr Ruto. The Waki Commission was in Eldoret between August 5 and 6, 2008.

“What was happening at the time was that ODM was eager to show that PNU had rigged the elections,” Ms Alagendra said.But on the other hand, she said, PNU wanted to demonstrate that ODM was behind the violence that rocked the country.

“In order to demonstrate that ODM was behind the violence, they put together a group of people who would assist them locate witnesses to say ODM was the cause. There was a group of people who came to Eldoret. The group was made up of PNU and government officials. PNU was trying to gather evidence that it is ODM that caused the violence,” Ms Alagendra said.

President Kibaki was re-elected for a second term on a PNU ticket, and the current president supported him and played a key role in his campaigns.

Mr Kenyatta was among the first ministers President Kibaki appointed soon after the disputed 2007 presidential elections and was seen to be a close associate of the then incumbent, having himself abandoned the quest for presidency as a candidate of Kanu of which he was chairman.

Five years later, Mr Kenyatta and Mr Ruto are in the same Jubilee coalition. According to Jubilee MPs, the disclosure by Mr Ruto’s defence is a historical fact. “At the end of the day we have to talk of the politics at that time because that was the genesis of the violence.

Our two principals who were in different parties then must understand that is history that must be told,” Nandi Hills MP Alfred Keter, a close associate of Mr Ruto, told the Sunday Nation.

Ruto defied Africa Union resolution for which Uhuru lobbied, while his defence has accused PNU of

Similar sentiments were echoed by Galole MP Hassan Dukicha who said “the issue of PNU fixing the deputy president at that time is true.” Mr Dukicha, however, said the relationship between the President and the Deputy President is intact and such revelations may not have an impact even on Mr Iringo, with whom Mr Ruto serves in government.

Mr Washiali said the PNU position then should not be used to determine the relations between the President and the Deputy President, adding that the political landscape then was different.

“May be the position of PNU then may not still be the same now. Even if you ask (former Prime Minister) Raila Odinga who was with Mr Ruto in ODM at that time, he may tell you a different story from what he had before. Therefore, we are looking at a political situation that is evolving against a historical situation,” he explained.

On the AU resolution, University of Nairobi political scientist Adams Oloo holds that Mr Ruto was disadvantaged because that resolution was reached when his case had already taken off, and the ICC would be very fast to issue warrants of arrest against him if he skips.

However, Dr Oloo said the fact that Mr Ruto blames PNU for his troubles may not have any significant impact on his relations with Mr Kenyatta given that the people he has mentioned were Kibaki appointees. “Ruto may not point an accusing finger at President Uhuru. In any case, my guess is that the President may have known that he (Ruto) was going to mention the people he did, even if they are still serving in government.”

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