Last Kenya Case Collapses – Victory of Power over Justice?

Today, 5 April, the Trial Chamber V(A) (TCVA) of the International Criminal Court (ICC) filed its decision by majority – with Judge Herrera Carbuccia dissenting – of termination of the case against the Prosecutor v. William Samoei Ruto and Joshua Arap Sang. This means that the case against Deputy President of Kenya, William Samoei Ruto, and his co-defendant, former radio journalist, Joshua arap Sang,  has been dropped. This decision however, may be appealed and does not preclude the Prosecutor from building a fresh case in the future.

Both Ruto and Sang faced three counts of crimes against humanity of murder, deportation or forcible transfer of population, and persecution, for their alleged role in the violence that followed the December 2007 Kenyan election. It was the first time the Prosecutor invoked the proprio motu powers granted under Article 15(3) of the Rome Statute and opened an investigation in November 2009 in relation to the alleged crimes. The trial, which began on 10 September 2013, was the only remaining  ICC case with regards to the 2007-2008 post-election violence in Kenya, after the Court dropped all charges against Kenyan President Uhuru Muigai Kenyatta in December 2014.

Earlier on 12 February 2016 the Appeals Chamber determined that previously recorded statements of five prosecution witnesses who had recanted those statements or failed to show up in court could not be used as evidence in the trial against either Ruto or Sang. The Appeals Chamber decision was significant as it clearly impacted today’s decision motion to dismiss the case.

The TCVA judgment set an important jurisprudential precedent at the ICC as it was the first time that the Court made a decision on the “no case to answer” motion. Back in June 2014, in a unanimous decision, the Chamber explained that it was allowing such a motion because it would help ensure that the accused did not have to defend themselves against charges for which there was insufficient evidence.

“The effectiveness of the court depends on the cooperation of states. Today’s judgement and the previous decision on Kenyatta, as well as on the case of Sudan’s President Omar al-Bashir, shows the difficulties the Court has in prosecuting those in power.”

Dr. Aaron Matta, Senior Researcher

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