Kenya: ICC Terminates Case Against DP William Ruto over Post Election crisis

Deputy President William Ruto and former radio presenter Joshua Arap Sang have been set free by the International Criminal Court.

Judges decided by a majority that the case against DP Ruto and Mr Sang be terminated, adding that the decision does not preclude future prosecution at the ICC or in a national jurisdiction.

"The charges are hereby vacated and the accused are discharged from the process without prejudice to their presumption of innocence or the prosecutor's right to re-prosecute the case at a later time," Presiding Judge Eboe-Osuji said.

Judges Eboe-Osuji and Robert Fremr, as a majority, agreed that the charges should be vacated and the accused be discharged, but they provided different reasons for their decision.

Judge Fremr found that the accused had no case based on an assessment of the prosecution's evidence in accordance with the chamber's guidelines.

He argued that the prosecution did not present sufficient evidence on which a reasonable trial chamber could convict the accused.

Accordingly, he concluded that there was no reason to call the defence to bring their case or to prolong the proceedings any further.

Judge Eboe-Osuji concurred with Judge Fremr's assessment but declared a mistrial in the case, arguing that that it could not be discounted that the weakness in the prosecution's case might be explained by the demonstrated incidence of tainting of the trial process by way of witness interference and political meddling that was reasonably likely to intimidate witnesses.

Judge Hererra Carbuccia appended a dissenting opinion. In her view, the charges against both accused should not be vacated in the present case.

According to her, the prosecution's case had not broken down and she concluded that there is sufficient evidence upon which, if accepted, a reasonable trial chamber could convict the accused.

The ICC trial chamber ruled that the PEV victims should be invited to express views and concerns in relation to reparation or assistance in lieu of reparation.

The two have been freed from charges of crimes against humanity arising from the 2007/2008 post-election violence that left some 1,113 people dead and more than 500,000 internally displaced.

Mr Ruto and Mr Sang's legal teams filed the no-case-to-answer application last September, saying that ICC Prosecutor Fatou Bensouda had not built a case to have then put on their defence.

The application was heard in January, but the judges blocked the defence teams from presenting witnesses to support their arguments.

However, lawyer Karim Khan, for Mr Ruto, and Mr Katwa Kigen, for Mr Sang, argued that the case had collapsed after the prosecution failed to present adequate evidence.

Kenyan Deputy President Awaits Hague Court Fate

The International Criminal Court (ICC) is on Tuesday evening expected to issue a landmark ruling that will determine the fate of the case against Deputy President William Ruto and former radio host Joshua arap Sang.

The three-judge bench will either reject or accept motions of no case-to-answer filed by defence teams of Ruto and Sang seeking to terminate their case at the prosecutor's level.

The court has indicated that the ruling will be written and not in an open court as earlier communicated to the defence teams.

If judges rule in favour of Ruto and Sang, it will mark the end of the Kenyan case at the ICC.

But if they reject it, it will mean they have a case to answer which will require them to defend themselves which will include calling witnesses.

ICC Prosecutor Fatou Bensouda while seeking for admission of evidence of five recanting witnesses said without their evidence her case would be weak.

The Appeals Chamber overruled the Trial Chamber's decision depriving the prosecution the evidence it had termed as crucial in the case against Ruto and Sang.

READ: Bensouda's case against DP Ruto, Sang suffers major blow

ICC cases against Kenya began in 2010 after former Prosecutor Moreno Ocampo was allowed by judges of the Pre Trial Chamber to investigate the 2007/8 Post Election Violence that left over 1,000 people dead and over 650,000 others displaced.

However, out of the six people considered by the ICC judges to bear the highest responsibility of the atrocities committed, only two are on trial after charges against the other four were withdrawn due to lack of evidence.

Tuesday's ruling is considered crucial though even without the judges terminating the case at the prosecutor's level, legal experts deem the evidence is too weak to sustain a conviction in consideration that the prosecutor also admitted that she had been deprived of 'significant evidence' when evidence of recanting witnesses was dismissed.

Bensouda on the other hand has maintained that her witnesses were interfered with and so far three Kenyans are wanted by The Hague based court for alleged interference with prosecution witnesses.

Kenya : Opposition Criticises State of Nation Address

President Uhuru Kenyatta could not make his State of the Nation Address in Parliament for a full 30 minutes Thursday as Orange Democratic Movement MPs held a noisy protest in the chamber.

The MPs blew whistles, shouted and waved placards, ignoring orders from Speaker Justin Muturi to behave with decorum.

Some had to be dragged out shouting and resisting by parliamentary orderlies.

Drama started the minute the President stood to make his speech. About a dozen MPs jumped to their feet, blew whistles and removed placards from their pockets.

Mr Kenyatta watched them for a few moments but took his seat when National Assembly Speaker Justin Muturi got on his feet to restore order. Parliamentary etiquette requires members to take their seats when the Speaker rises to speak.

Mr Kenyatta regarded the protest with a bemused smile most of the time.

The protesting MPs had planned with care and secrecy and until the last minute, parliamentary staff had no idea what was going to happen.

The placards they had were hand-written on foolscaps and the whistles were the plastic ones used in football matches.

One MP, Mr Opiyo Wandayi of Ugunja, was eventually forcibly removed from the House by a phalanx of sergeants-at-arms.

Mr Muturi was ignored as he read out the Standing Orders on order in the chamber.

The Speaker ruled that for defying the order to leave, Mr Wandayi would not be allowed in Parliament or its offices for the rest of the session.

A session translates into a whole calendar year, meaning Mr Wandayi will not sit in the chamber and will not be allowed in his office and neither will he attend committee meetings for the rest of the year.

While the Constitution says an MP who misses eight sittings should lose his seat, it was not clear last evening whether Mr Wandayi would suffer that fate.

Those with the whistles were all from ODM: Mr Wandayi, Mr Tom Kajwang' (Ruaraka), Mr Simba Arati (Dagoretti North), Mr John Mbadi (Suba), Mr Irshad Sumra (Embakasi South), Ms Gladys Wanga (Homa Bay Woman Rep) and Senator Moses Kajwang'.

Ms Millie Odhiambo (Mbita, ODM) stood in her place and put on her make-up to mock the events. She was later asked to leave.

The placards were written; "Jubilee are thieves", "Thieves" and "Ethnicity is killing Kenya".

There appeared to have been calm after Mr Wandayi was kicked out of the chambers. President Kenyatta, who was about to resume his speech, said: "After having been thoroughly entertained ..." but before he could continue, the whistling resumed.

Mr Muturi then ordered the rest of the protesters to leave. Mr Kajwang', Ms Wanga, Mr Outa and Mr Mbadi left without too much trouble but with their placards aloft.

When it seemed like calm had been restored, Senator Kajwang' joined in. After him was Ms Odhiambo, whose protestations to the Speaker were that Senator Mike Sonko (Nairobi, TNA) also deserved to leave the chamber for appearing to have threatened colleagues across the floor.

When she was ordered to leave, she replied, "With pride," and marched out.

President Kenyatta had barely spoken for a minute when Mr Arati stood and blew his whistle.

With the protests entering the thirtieth minute, Mr Muturi struck a more conciliatory tone. "Those members wishing to withdraw may withdraw," he said.

UHURU'S SPEECH

The President was eventually able to make his 46-minute address, which he modelled around the idea of the Constitution enacted in 2010 as a national covenant.

He said that while the Opposition had disagreed with Jubilee's understanding of the national covenant, this had created the most active and effective Opposition and civil society in Africa.

"However, our Opposition should be reminded that they are the alternative side of the Nationalist Covenant. That they are part of it, and are bound by it through normative law," he added.

"This way, we can go through election cycles without worrying whether the gains of one administration can be destroyed rather than built on by the in-coming one."

The President used the annual address to highlight the achievements of the government he has led and at the same time to criticise the county governments and the Judiciary for their actions regarding corruption.

Citing the amounts that the counties have received since the start of devolution, the President said the fact that the national government has given above the 15 per cent minimum set in the Constitution was proof of its commitment to devolved government.

"We need, therefore, to be frank. A significant proportion of the funds transferred to the devolved units have not met the expectations of the Kenyan people," he added.

SEARING QUESTIONS

The MPs chanted "No" to each of the questions he then asked: "Is the one trillion sent to the county governments reflected in what you see? Is there clean drinking water and proper sanitation, efficient garbage collection, medicines in hospitals, and agricultural extension workers visiting your farms?"

President Kenyatta also tabled documents showing the progress made so far in the prosecution of public servants named last year as under investigation for corruption-related offences.

These will be scrutinised when the House resumes sitting on April 12 but will contain statistics on the more than 300 individuals prosecuted and the efforts made by the Assets Recovery Agency to get the proceeds from the money corruptly obtained from the National Youth Service.

The President also challenged the Judiciary to speed up the prosecution of the cases and give little leeway to those who challenge the authority of the EACC and their prosecutions.

"I understand the frustrations of those who feel that investigative and court processes have been manipulated by the corrupt in order to escape accountability, and delay and derail justice," he said.

"It is crucial that the Judiciary reduces and eliminates the frivolous exploitation of legal technicalities to defeat the course of justice," he said.

EACC secretary Halakhe Waqo said on Wednesday that all governors it has attempted to investigate have filed constitutional petitions to challenge its authority.

"Kenyans are justified to demand from the Judiciary a tightened regime that is impatient with unwarranted delay. The Judiciary has the funding and the requisite leadership. It must, therefore, play its rightful role. It must not be perceived to be helpless, a bystander, or complacent in this war that is a threat to our development and our security," said President Kenyatta.

Africa: It's Time to Axe Kenya's Big Dick Politics

 SOURCE : allAfrica

ANALYSIS

BY NANJALA NYABOLA

There's one huge theme that cuts across all Kenyan politics and it's not ethnicity and it's not land.

On 22 February, readers of The Star newspaper were treated to the front-page headline which screamed: "Gideon Moi is uncircumcised, says DP Ruto".

This story was sparked by an observation about Gideon Moi's foreskin that Deputy President William Ruto allegedly made at a political event in support of his favoured candidate for the hotly-contested Kericho by-election.

There has been some debate as to what exactly Ruto meant as he spoke in Kalenjin, and whether it was a comment about circumcision or a euphemism to refer to Moi as a young pretender. But either way, one thing is clear: We have finally reached a point at which we can no longer pretend Kenyan politics is anything more than a never-ending dick-measuring contest.

The received wisdom about politics in Kenya has always been that the biggest problems facing the country are land and ethnicity. Politicians deploy these concerns to mobilise voting blocks. And in both academia and journalism, these two ideas generally form the bedrock of how the country is analysed and what solutions are proposed.

However, this understanding of Kenya's politics is based on a flawed premise which sees the problems of elite men as the problems of the country as a whole. They are not. In fact, these two "major" struggles are, at heart, primarily contests of patriarchy - of mimi ni ndume ('I am a bull') politics in which men butt heads for local or national supremacy.

A cock and bull story

The history and politics of Kenya look fundamentally different when the central referent object of the analysis is a woman. Consider ethnicity. Volumes have been written about the impact of ethnicity, including full length texts on how identities are constructed, mobilised and deployed. But what rarely gets noticed is how deeply patriarchal both the practice and analysis of ethnicity are.

For instance, the argument that the animus between Kenya's ethnic groups is insurmountable overlooks the fact that, for millennia, women have been married off between ethnic groups. The only reason their ethnic identities are erased is that most communities in Kenya are patrilineal. One only has to look at the two leading political families - the Kenyattas and the Odingas - to see this truth in motion. This phenomenon also speaks to the fact that ethnicity is in no way essential or rigid, but rather a highly malleable concept that is easily exploited in pursuit of various political goals.

Similarly, the idea that land is the most important problem in Kenya overlooks the fact that women constitute just over half the country's population yet are constrained by custom from owning land. Very few communities will allow women to independently purchase or inherit land with no obstacles, and the legal struggles over property laws are symptomatic of the lengths men will go to in order to keep it this way.

Consider, for example, the status of women's property laws in marriage. The initial draft of the 2013 Matrimonial Property bill contemplated an automatic 50-50 split of property in the event of divorce. But during the debate, it was re-tabled with amendments that required "proof of contribution". This is one of the many ways in which women's rights in marriage are trampled on, because it is difficult to prove to a legal standard the monetary value of non-financial labour that women put into marriages. For instance, what's the monetary value of the many times a wife had sex although she didn't want to because it made her husband feel better on his way to work?

The final version of the bill (opposed by 28 of the 34 female legislators) also restricted matrimonial property to "movable and immovable property jointly owned by both spouses". This means that if the man registers the household bank account under only his name, it is protected from any divorce proceedings. Or if the husband inherits land and does not add his wife's name to the deeds, a woman cannot legally claim it as part of marital assets.

How can the biggest problem in Kenya be land when the majority of the population is not free to own it?

Giving the patriarchy the shaft

At the same time, statistics on domestic violence in Kenya are telling. In a 2014 demographic and health survey, 23.8% of women between the ages of 15 and 19 reported having suffered physical or sexual violence at the hands of a partner. This number rises to a startling 42.6% for women between 40 and 49. Moreover, these numbers hold pretty much steady across all kinds of other factors - across ethnic groups, wealth disparities, urban vs. rural.

In fact, domestic violence is arguably the only truly national issue in Kenya that cuts across all other divides. But because it is a problem that primarily affects women, not only is it not on the national political agenda but even political analysts don't give it the attention it deserves.

It is not enough to just observe that Kenya's politics is elitist. We must also contend with the fact that it is overwhelmingly patriarchal. All of Kenya's largest ethnic groups are crippled by toxic, violent masculinities that poison the national dialogue and crowd out constructive discourse on anything else.

Speak to Kenyan women in the public sphere and they will tell you that it is Kikuyu men that express the most toxic attitudes towards the candidacy of Martha Karua or Wangari Maathai. That it is Somali men who pressure Somali women not to run in favour of other men in the clan. And that it is Kamba, Luhya, Luo or Kalenjin men who beat their sisters and daughters who offer to run for office.

What are presented as the main problems of Kenya are really just contestation between groups of elite men measuring in the public sphere what should really be left to the country club dressing room.

Men are the biggest obstacles to the political advancement of women in their own communities, but women can be part of the problem too. When a woman criticises the private morality of a female political figure, she is upholding a patriarchal system that subjects women in public to higher moral standards than men. When we propagate mimi ni ndume politics by refusing to acknowledge or celebrate the contributions of women in politics, we are reifying the argument that women are "flower girls" who do no substantive work. When we encourage women politicians to kowtow to big men instead of building alternative centres of power, we reinforce the system. When we uncritically accept men as "natural leaders" without interrogating their motives or intentions, we bolster the patriarchy.

To avoid the seemingly inevitable descent into perdition in the coming 2017 election, Kenya needs a new politics - right down to the ways in which we think about who is fighting whom, and for what. It is high time we axe Kenya's big dick politics. Or, in the words of Chimamanda Ngozi Adichie, in order to save Kenya, we should all - men and women - be feminists.

Nanjala Nyabola is a Kenyan writer, humanitarian advocate and political analyst, currently based in Nairobi, Kenya. Follow her on twitter at @Nanjala1.