William Ruto and Joshua Sang

William Ruto (L) and Joshua Sang attending hearings at the International Criminal Court © ICC-CPI
The ICC trial of Kenyan politician William Ruto and radio broadcaster Joshua Sang ended in 2016 due to a lack of evidence and alleged witness-tampering. They were charged with crimes against humanity during Kenyan post-election violence in 2007-8.
Country
Case status: 
Concluded
Regions: 
Africa
Kenyan politician William Ruto and radio broadcaster Joshua Sang were charged by the ICC with orchestrating crimes against humanity during violence that followed disputed presidential elections in 2007. The suspects appeared voluntarily before the ICC after being issued with summonses to appear in March 2011. The Ruto/Sang trial opened in September 2013. In April 2016, ICC judges ended the trial due to a lack of evidence, with the ICC prosecutor alleging widespread witness-tampering. Judges said the case may reopen should further evidence come to light.

Kenya's campaign to undermine ICC independence

With Ruto elected Kenya’s deputy president and fellow ICC suspect Uhuru Kenyatta elected president months prior to the opening of the Ruto/Sang trial, the Kenyan government launched an ultimately unsuccessful political and diplomatic campaign to have the case dropped.

The campaign did succeed in securing changes to the ICC’s rules to allow those mandated to fulfil "extraordinary public duties at the highest national level" to request excusal from presence at trial to perform such duties.

Further pressure from Kenya in November 2015 led the ICC’s governing body, the Assembly of States Parties (ASP), to include in a report of its 14th ASP session an interpretation of an amended ICC rule on the use of pre-recorded witness testimony—a matter under appeal in the Ruto/Sang trial at the time.

In February 2016, appeals judges ruled that the pre-recorded testimony from five prosecution witnesses who had recanted their statements was inadmissible due to Rome Statute rules on non-retroactivity.

Kenyan and international civil society strongly opposed Kenya's campaign to undermine the ICC’s independence.

Background: 

2007-08 post-election violence in Kenya

In 2007, incumbent President Mwai Kibaki of the Party of National Unity (PNU) was declared the winner in the closely-contested Kenyan presidential race against Raila Odinga. Odinga and his opposition party, the Orange Democratic Movement (ODM), refused to recognize the results and widespread violence ensued, causing thousands of deaths, the displacement of over half a million people, as well as hundreds of victims of sexual assault. 

Who are William Ruto and Joshua Sang?

At the time of the post-election violence (PEV), William Ruto was a prominent ODM member. A power-sharing government emerged after the conflict, with Ruto serving as a cabinet minister. In 2013, Ruto became Kenya’s deputy president with former political adversary and fellow ICC suspect Uhuru Kenyatta elected as president.

Joshua Sang was an influential radio broadcaster at Nairobi’s Kass FM radio. 

Charges: 

Both Ruto and Sang were charged of criminal responsibility as indirect co-perpetrators of the crimes against humanity, including murder, deportation or forcible transfer of population, and persecution. 

Ruto charged with organizing common plan, Sang with implementing

Ruto is alleged to have provided essential contributions to the implementation of a common plan to attack PNU supporters by organizing and coordinating the commission of widespread and systematic attacks across the Rift Valley.

Sang is alleged to have contributed to the implementation of the common plan by using his radio show to incite violence and hatred, announce meetings and make false news reports of murders to add to the tense climate. 

Mixed outcomes in confirmation of charges

Ruto and Sang were summoned to appear before the ICC in 2011. Following a confirmation of charges hearing in September 2011, pre-trial judges confirmed the charges against Ruto and Sang in 2012 and sent the case to trial. Judges declined to confirm charges against Henry Kosgey, a third suspect and ODM politician. 

Ruto/Sang trial ends early without a conviction

On 5 April 2016, Trial Chamber V(a) vacated the charges against Ruto and Sang, bringing the trial to a close. The Chamber, however, did not grant Ruto’s request for acquittal nor Sang’s “no case to answer” motion and underlined that the case may be re-opened if the prosecutor can provide new evidence. While two of the Chamber’s three judges concurred that the trial should end, they had differing reasons for ruling as such. Judge Robert Fremr found that the evidence presented by the prosecution was insufficient to potentially lead to a judgment of guilt. Judge Chile Eboe-Osuji agreed but preferred the term “mistrial” as he found it likely that the prosecution case was weakened by witness intimidation and political interference. In her dissent, Judge Olga Herrera Carbuccia argued that the prosecution case had not “broken down” as alleged by the defense and that the trial should continue.

Challenges: 

During the course of the closed Ruto/Sang trial, several prosecution witnesses were reportedly killed, disappeared or withdrew from the case, or recanted their testimony. For the first time in ICC history, prosecution witnesses summoned to the Court were ultimately deemed ‘hostile’ by judges. The defense, meanwhile, argued the witnesses were coached and given financial incentives to testify. The prosecution’s allegations fall in line with reports of Kenya’s failures to cooperate with the prosecution’s investigation and with Kenya’s political and diplomatic efforts to interfere with judicial decision-making throughout the different stages of the Ruto proceedings.

ICC judges reject Kenya’s challenges to admissibility and jurisdiction of case

In March 2011, Kenya challenged the admissibility of the ICC case against Ruto and Sang (and Kosgey). It claimed that the country was undergoing a comprehensive legal and judicial reform and intended to investigate and prosecute the cases domestically. In rejecting the challenge, Pre-Trial Chamber II found there were no such ongoing domestic proceedings with respect to the three ICC suspects. The Appeals Chamber confirmed this decision in August 2011.

On 30 August 2011, the defense for Ruto and Sang challenged the Court’s jurisdiction over the case, arguing that the level of organization and structure within which the crimes were allegedly committed did not reach the requisite level for crimes against humanity under the Rome Statute. Pre-trial judges rejected the jurisdiction challenge on 23 January 2012.

Judges decide hearings to take place in The Hague

On 15 July 2013, the plenary of ICC judges rejected a joint defense request to hold the trial in Kenya or Tanzania. For such a move to be adopted, at least two-thirds of the 18 judges needed to vote in favor of it. The judges stated that they took into consideration the security and cost of holding proceedings outside The Hague, the potential impact on victims and witnesses, as well as the potential impact on the perception of the Court.

Presence at trial the rule, absence the exception

On 25 October 2013, the Appeals Chamber unanimously reversed Trial Chamber V(a)’s decision to excuse Ruto from continuous presence at his trial. Judges found that the Chamber had interpreted the scope of its discretion to excuse attendance too broadly, and that absence should an exceptional measure decided on a hearing-by-hearing basis. The ruling came just ahead of the 13th ASP session, during which states adopted a Kenyan proposal to change the Court’s rules to allow those mandated to fulfill "extraordinary public duties at the highest national level" to request excusal from presence at trial.

Applicability of amended rule 68—a matter for ICC judges

In 2015, trial judges agreed to the prosecutor’s request to use an amendment to rule 68 of the ICC’s Rules of Procedure and Evidence (RPE) to present during trial pre-recorded testimony from five prosecution witnesses who had recanted their statements. Both Ruto and Sang appealed the decision, arguing that the ICC’s governing body, the Assembly of States Parties (ASP), had explicitly decided when it amended rule 68 in November 2013 that the amendment would not apply in trials that had already begun—the Ruto/Sang trial opened 10 September 2013.

As the Appeals Chamber was considering the matter, Kenya pressured States Parties to include in a report of the 14th ASP session in November 2015 an interpretation of the amended rule, affirming it could not be applied retroactively. While including the requested Kenyan language in the final report created no legal obligations for states or the ICC, civil society strongly condemned Kenya’s attempt to have the Assembly influence the decision-making of independent ICC judges

In February 2016, the Appeals Chamber decided that trial judges had erred in finding the pre-recorded testimony admissible in the Ruto/Sang case, pointing to Rome Statute provisions on non-retroactivity and the fact that the rule amendment was adopted after the opening of the trial. Presiding Judge Piotr Hofmanski, however, stressed that the Chamber’s decision was based solely on the Statute’s prohibition on retroactive application of rule changes that are to the detriment of the accused. Judge Hofmanski further noted that the drafting history of the ASP’s amendment did not reveal that it could not be applied to pending cases as argued by Kenya.

Civil society defends ICC independence and no immunity under Rome Statute

While the Rome Statute provisions excluding immunity based on official capacity remained untouched during the 12th ASP session, civil society expressed grave concern at the political campaign that led to the new rules on the appearance of sitting heads-of-state at trial, noting it risked undermining the ICC’s independence. In the run-up to 13th ASP, civil society also strongly opposed a proposal by the Kenyan government to amend the Rome Statute to allow immunity for heads-of-state and high government officials.

Read more on Kenya’s anti-ICC campaign - See Kenya country page

Victims: 

628 victims were authorized to participate in proceedings during the Ruto/Sang case, represented by legal representative of victims William Nderitu.

New procedure for victims’ participation

On 3 October 2012, Trial Chamber V set up a new procedure for victims’ participation in the Ruto/Sang case. Only victims who wish to actually appear in court would now need to submit a written application whereas victims wishing to participate remotely through a common legal representative would be subject to a much less rigorous registration procedure.

Questions on reparations after withdrawal of charges

With the withdrawal of the charges against Ruto and Sang, it remains uncertain how victims will obtain justice. Many are in need of financial, medical, and psychosocial support. The Trust Fund for Victims (TFV) could have addressed the latter two needs through its general assistance mandate but was not operating in Kenya during the proceedings against Ruto and Sang. While some have probed the Court’s ability to order reparations by the TFV and/or Kenya regardless of a case’s outcome with respect to the accused, the TFV is limited by its budget and the Ruto/Sang Trial Chamber ruled that ICC-ordered reparations would not be available absent an ICC conviction

Civil society has called on the Kenyan government to provide assistance to victims.