Gicheru dismisses Bensouda's claims he scuttled Ruto-Sang case

In Summary

• In his latest filing before the court, Gicheru terms the Document Containing Charges filed by Bensouda as an "alluring house of cards."

• Gicheru surrendered before the ICC last year following an arrest warrant issued by the Hague based court over allegations of witness interference.

Paul Gicheru at the ICC hearing on November 6, 2020.
Paul Gicheru at the ICC hearing on November 6, 2020.
Image: Screen Grab

Kenyan lawyer Paul Gicheru has dismissed claims by ICC prosecutor that he was responsible for scuttling the case against Deputy President William Ruto.

Through his lawyer Michael Karnavas, the lawyer terms the claims by the prosecution as "absurd" and "nonsense".

Gicheru is asking the judges not to confirm the charges against him as there is no evidence that he was a member of any common plan to identify, locate, and corruptly influence prosecution witnesses.

"The OTP offers no evidence that Mr. Gicheru was “associated with and/or [a] supporter of RUTO at the relevant times,” Karnavas tells the court.

Gicheru surrendered before the ICC last year following an arrest warrant issued by the Hague based court over allegations of witness interference.

Bensouda told the court that she has a number of conversations between intermediaries acting for Gicheru and his associates that were recorded by the Prosecution Witnesses they were targeting.

"In these recordings, the Intermediaries themselves explain important details of the Common Plan to the targeted witnesses in their own words," Bensouda told the court in her latest filing.



In his latest filing before the court, Gicheru terms the Document Containing Charges filed by Bensouda as an "alluring house of cards."

"Flawed, flimsy, and fallacious, all assertions and arguments collapse when the evidence is diligently scrutinized and weighed in context against the deficiencies of the OTP’s witness statements and testimony – individually and collectively," Gicheru's submits.

It is the DOC that the prosecution convinces the judges to confirm the charges brought against the individual.

Bensouda argues that Gicheru is criminally responsible, as a direct perpetrator, co-perpetrator or accessory, for a concerted campaign of witness interference in the case of The Prosecutor vs William Samoei Ruto and Joshua Arap Sang.

"Through promises and actual payments of bribes, threats and intimidation, Gicheru and his associates perverted the course of justice in that case, directly contributing to its collapse," Bensouda told the court.

But Gicheru has dismissed the claims by the prosecution saying that Bensouda has not presented any evidence linking him to any of the alleged crimes.

"Beneath the surface of the cosmetically impressive 170-page DCC and the OTP’s glossy rendition of the events that it claims demonstrates that Mr. Gicheru corruptly influenced OTP witnesses, is a pervading pattern of calculated neglect of evidence, abject disregard of context, and reckless abandonment of fairness and discernment," Gicheru's lawyer tells the court.

Confirmation of charges

The confirmation of charges proceeding is held to determine whether or not there is sufficient evidence to conduct the subsequent phase of the proceedings: the trial. 

On April 5, 2016, Trial Chamber V(A) decided, by a majority that the case against Ruto and Sang is to be terminated. The parties have not appealed this decision.

The case also involved former industrialisation Minister Henry Kosgey. Judges declined to confirm the charges against  Kosgey on January 23, 2012.

Gicheru tells the court that Bensouda offers hearsay evidence of unavailable witnesses in prior recorded statements.

He adds that the said statements do not afford him full enjoyment of a fair trial, right of confrontation and denies the Chamber the opportunity to meaningfully assess the value of these witnesses’ evidence.

In the heavily redacted submission, Gicheru continues to argue that the prosecution cherry-picks the evidence, "artfully ignoring inconsistencies, improbabilities, contradictions, lack of corroborations, compartmentalizing and presenting it out of context and devoid of relevant evidence."

"The OTP absurdly claims that the Chamber should ignore the quality of the evidence and essentially make findings and conclusions on the quantity of evidence. Nonsense," Karvanas told the court.



But in his submission Gicheru states that Bensouda is relying on the same witnesses that were "found to have been incapable of belief" by the judges who were handling the case against Ruto and journalist Joshua Sang.

"The OTP offers contradictory and inconsistent evidence from unreliable witnesses who frequently contacted each other and schemed together on how to secure benefits from the ICC. The OTP claims that these witnesses corroborate each other yet provides no substantiation and no independent indicia of reliability for virtually all of this evidence," Gicheru argues.

He also says that the prosecution claims Simatwo, Maito and Busienei were were “managers” of a common plan without providing evidence that he had any dealings with the said individuals.

"Nor did the OTP make any attempt to contact these individuals and question them in relation to witness interference in the Ruto and Sang case, and in particular, Mr. Gicheru," Karvanas says in the filing.

Bensouda has claimed that the witnesses can be heard in conversations with persons associated with Gicheru, "who was trying to locate ICC witnesses."

She adds that in one of the conversations, Gicheru's alleged contact says that "payments from Ruto were being channelled through" the lawyer.

"The Defence has not submitted any evidence of their own that could explain why these intermediaries who offered bribes to the Prosecution Witnesses would have falsely claimed – in contemporaneous statements made in the course of the commission of the crimes charged –that they acted on behalf of Gicheru," Bensouda told the court.

According to Bensouda, Gicheru and his associates were careful not to leave any financial trail of the bribes paid to the Prosecution Witnesses.

Nevertheless, despite instructions from Gicheru to the contrary, Bensouda tells the court, two of the corrupted Prosecution Witnesses deposited the proceeds of the bribe payments into their bank accounts.

"While these were cash deposits that cannot be directly linked to Gicheru, they are clearly large deposits of cash that are not commensurate with the means and status of the witnesses concerned, nor their prior banking history," Bensouda says.