Who Is William Ruto
Four years after the eruption of post-election violence in Kenya (“PEV”), and after more than 2 years of Kenya’s inability or unwillingness to prosecute the perpetrators of the violence, the International Criminal Court (“ICC”) has summoned six suspects named by its Chief Prosecutor, Luis Moreno Ocampo (“the Chief Prosecutor” or “Ocampo”) as the most responsible for the violence. Ruto is among the six or the “Ocampo Six,” as they are collectively referred to. The other five suspects are Uhuru Kenyatta, Francis Muthaura, Hussein Ali, Henry Kosgey and Joshua Sang.
Efforts by Kibaki and his half of the government coalition to defer the ICC trial of the Ocampo Six having failed, the Six are headed to the Hague where Ruto, Kosgey and Sang are scheduled to be formally told today what it is they are being charged with. Their co-defendants will appear tomorrow for the same purpose. This is a formality with predictable outcome: the suspects will plead not guilty as charged, unless any of them confesses which will make an otherwise very boring day very exciting.
In this last series on Who Is William Ruto, I attempt to lay out what I believe his legal defense to be. As noted previously, I do this on principle and notwithstanding my criticism of the man which I will continue to provide when he is off the reservation. Now then, what is Ruto’s legal defense?
As I noted in introducing this piece in Part IV, there is first the time honored defense mastered by humanity from approximately the age of 2 and onwards regardless of fact when faced with an accusation and that is simply, “I did not do it.” Given the success of this defense or lack thereof through the ages, however, especially when given reason to believe one has done what he or she is accused of as in this case where the ICC has reason to believe and has charged Ruto of committing crimes against humanity, then a more substantive and persuasive defense is necessary.
In sum, I see the following four defenses for Ruto (and by extension Kosgey and Sang) against the Charges he currently faces and outcome:
- The ICC has no jurisdiction. Fail
- The elements of the case not proven. Succeed.
- The Prosecutor’s evidence is not sufficient to establish “reason to believe” Ruto has committed these offenses: Succeed.
- Trial: Acquital
From the outset, I should note the final outcome of this case will be the same even if Ruto were to be tried in Kenya and thus my amazement why he joined Uhuru, Muthaura and Hussain (“UMH”) in fighting against going to the Hague. On the other hand, it is more likely for UMH to be convicted at the Hague than at home for reasons I cannot get into now for the trio are not the subject of my analysis. Be as it may, I have already predicted acquittal for Ruto but let me elaborate.
By my count, Ruto has 3 basic defences and of these 3, one will fail but two will succeed, leading to his acquittal. The defense that will fail relates to the argument recently offered by lawyers Kibaki hired from outside the country to advise him after failing to secure a deferral of the cases and this is the jurisdictional argument, essentially arguing that the ICC does not have authority to entertain the case under the Rome Statute.
As I have argued elsewhere in my blog, this argument is doomed to fail for two reasons: First, the ICC can automatically exercise jurisdiction under Article 12 of the Statute over crimes committed on the territory of a State Party or by a national of a State Party such as the ones the Ocampo Six are charged with. In this case, Kenya, a State Party, actually referred these cases to ICC thereby subjecting itself to ICC jurisdiction under Article 13. These are more than enough reasons for ICC to satisfy itself it has jurisdiction but there is more that need not be explored here.
Second, on the question of admissibility of the Ocampo Six case which belies the question of jurisdiction, the ICC only looks to see if there is a credible ongoing investigation and or prosecution of any or all of the named suspects in Kenya. As of this writing, there is no such a thing going on therefore to challenge the ICC cases on this ground is indeed without basis as the circumstances stand today. Were Kibaki to agree and follow through with the conditions set forth elsewhere on this blog, including passing a law to try PEV suspects locally, then the ICC might entertain an application at this stage of the game under Article 17(1)(c) of the Statute but any other application is doomed to fail.
This then leaves Ruto with two technical defenses that ultimately he and the other two (Kosgey and Sang) will prevail on and these are the lack of “reason to believe” and failure to satisfy the definitional requirements of the elements necessary to secure a conviction under the Rome Statute.
In order to secure a conviction against Ruto, the Prosecutor must, among other things prove the existence of “a widespread” or “systematic” attack against a civilian population. However, Article 7(2) Rome Statute requires that the Prosecutor must not only prove that there were multiple acts directed against a civilian population in a systemic and widespread manner but also that these acts were pursuant to or in furtherance of a “State” or “organizational” policy to commit those acts.
There is no evidence and I don’t believe the Prosecutor can show that Ruto acted in furtherance of a “State” or “organizational policy.” Ruto was not part of the government during the PEV period so he could not have been acting in furtherance of a State policy. He campaigned and belongs to the Orange Democratic Party (ODM) but the party had nothing to do with PEV and certainly it did not have a policy of engaging in systemic commission of crimes against humanity therefore the “organizational policy” prong of the element of an ICC crime also fails. The failure to satisfy the requirements of the “State” or “organizational” element alone could have the entire case against Ruto thrown out. This is not to say Ruto could not be tried and found guilty of commission of the same crimes he is accused of if this element is not satisfied but that has to be in Kenya not at the ICC and perhaps this is why the Ocampo Six initially preferred the Hague but changed their minds later–I doubt though as there seems not to have been a coherent legal strategy about this but there is plenty of evidence political calculations played the upper hand.
The reason the Rome Statute imposes a state or organizational policy element in ICC crimes against humanity is because doing otherwise will simply transform domestic crimes into international crimes on the basis of the quantitative outcome of the harm and the manner in which it is performed without wars. In other words, you can’t just look and say there were widespread and systemic crimes in the country therefore these must be crimes against humanity; you must also have to show that these were done at the direction of an authoritative person in the government, the government itself or at the direction of an organization which had commission of these crimes as a policy. None of this apply in Ruto’s case and thus my conclusion he walks on this ground alone.
The question, however, remains what kind of state or organizational involvement would be required, if Ocampo were to succeed in showing that Ruto was acting pursuant to some organizational policy. Gazetting such a policy would the obvious case for the government in this case but you know that will never happen, ditto for an organization to go to the presses with their policy to commit widespread and systemic crimes against civilians. At best, only inferential evidence can be offered in this case but only as against UMH and not Ruto.
On the other hand, a reverse corollary question to be asked and answered is would an act constitute a crime against humanity under the Rome Statute, if a state or organization turned a blind eye to acts committed against a civilian population? According to the Introduction to the Elements of Crimes Against Humanity, it is understood that “policy to commit such an attack requires that the state or organization actively promote or encourage such an attack against a civilian population. A footnote to this part of the text explains the following:
“A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of government or organizational action.” This level of analysis provides yet another reason Ruto walks free as it eliminates ODM being dragged into this in any way because the party had no such policy otherwise it would have been implicated from the beginning. Having no provable organizational policy, the inquiry as to this question is at an end in favor of Ruto.
Ruto may also walk on failure to satisfy another element of an ICC crime and that is the “discriminatory” element albeit on a lesser degree. Opinions on this issue have varied over the years, but according to many, some form of discriminatory intent is inherent in the notion of crimes against humanity. Although the Prosecutor’s success or failure in satisfying this element is a toss-up in my view, his task may be made even more difficult given yet another related element and that is intent.
In conformity with Article 7, the Elements of crime against humanity also require that the perpetrator knew that the conduct was part of, or intended to be part of, a “widespread or systematic” attack. This discriminatory intent requirement which describes the context in which the conduct must take place, applies to all enumerated acts constituting crimes against humanity under Article 7. Article 30 of the Rome Statute meanwhile specifically states that, unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge
According to the Introduction to the Elements of crimes against humanity cited above, however, proof is not required for determining that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the state or organization. The mental element is satisfied if the perpetrator intended to further such a widespread or systematic attack. It is very unlikely in my view that the Prosecutor will be able to show this going by what has been reported. Ruto can simply argue, if he is courageous enough to, that all he ever intended to do was to repel attacks from the Mungiki thugs who had been sent to kill his people.
Ruto also walks even if a full trial was to be held on these same grounds (substantively by challenging the Prosecutors evidence or lack thereof, or successfully rebutting same) and on grounds, dispositively, I believe, that horrendous as it was, what happened in Kenya in early 2008 does not rise to the level of “crimes against humanity.” This is because the Rome Statute does not bring within its jurisdiction crimes that are unrelated to the widespread or systematic attack against a civilian population. The acts must be related to the attack and the perpetrator must have been aware that the crime was so related. Thus, Ruto, and the Ocampo Six for that matter can argue, successfully in my view, that what happened in early 2008 was acts of hooliganism and common criminality to be handled by the Kenyan courts. I am fairly convinced this closing argument at the end of trial will prevail if it has not before then as a technical defense.
For these reasons, it is my submission that Ruto walks at the Hague. Notwithstanding his going astray, ODM should support him for his trial at the Hague and hopefully in return for the good gesture, Ruto can go back to the drawing board and see where he miscalculated, make good with Raila and we all shall be happy again as a party which is good news for the country.
 Ruto’s defense in my view is substantially the same as Kosgey and Sang’s defense so when I say Ruto I include Kosgey and Sang in this context.
 Ruto may alternatively argue that even assuming, arguendo, that organizational policy is established, the acts were not “widespread” or “systemic” rather they were isolated and regional. In other words, in order to be “widespread” or “systemic,” the acts had to be committed throughout the county pursuant to this organizational policy. (Please don’t send me emails accusing me of how could I say this; after all, we are talking about thousands of Kenyans who lost lives. I know that fully but am advancing a legal defense the way I see Ruto presenting it)..
 Ruto has a solid defense nonetheless even if he were to be tried in Kenya and not at the Hague.
 Draft finalized text of the Elements of Crime, UN Doc. PCNICC/200/INF/3/Add.2(2000), p9 and n.6\
 Interestingly, Uhuru, Muthaura and Ali may walk on this ground as well.
 See generally, O Swaak-Goldman, “Crimes Against Humanity,” in G.K. McDonald and O Swaak-Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law, Vol. 1, The Hague/Boston/London: Kulwer Law International 2000, pp. 143-168.