Justice has both procedural and consequential dimensions. In other words, an action can be described as just if it’s processes and outcomes reflect that quality that is generally agreed to constitute justice. Not every process within the context of justice yields just outcomes. Indeed, a justice framework which employs defective, illegal and prejudicial methods is unjust, even if it regularly nails the bad guys.
This reflection has been prompted by the greatly anticipated decision of the ICC appeals chamber over whether recanted prior recorded testimony can be received and used by the trial chamber in the case against William Ruto and Joshua Sang. The fact that the very idea of using such patently problematic evidence is being contested at the higher reaches of the ICC is a frightening indictment of international justice. When a system does not defer to customary taboos of the legal sphere, it faces the prospect of plunging into the deep dark void of jurisprudence.
A case whose confirmation required a deliberate lowering of necessary legal standards now depends on the admission of bogus evidence to have a chance at the case-to-answer stage. Clearly, the process at the ICC Trial Chamber so far has been shambolic and manifestly unjust. There is no reason to expect that it should yield a just outcome. Given this position, it would be reasonable to expect, as a matter of legal common sense, that the Appeals Chamber would agree with the defence, and that the Trial Chamber would terminate the travesty that the case has become. But in the ICC, such expectations are excessive in their optimism.
The horrible spectre haunting William Ruto hasn’t been examined in its full context. Obviously, the jurisdiction of the ICC with respect to the ICC is controversial at best. Regardless, identifying Ruto as a suspect in connection with the PEV is, likewise, a horrifying feat of forensic chicanery. It has taken immense effort and resources to locate Ruto in time and space relevant to the constitutive acts in the crimes he is charged with at the ICC. Mostly, the effort has involved the invention of astounding fictions, procurement of characters amenable to atrocious subornation, and the intense coaching of these mercenaries to produce evidence suitable for the prosecution case. These liars and their evidence have thereafter been accorded immunities that make it difficult – but not impossible- for the defence to fully confront them and demonstrate their deceitful and feckless nature.
That there exist human beings savage enough to tell horrendous lies to frame an innocent person is extraordinary, but not implausible. That there are neighbours, tribesmen and constituents of William Ruto who would go to any length to frame him is totally unsurprising.
In the Beginning
There is a context to this. At the age of 31, William Ruto commenced his political career by bagging an influential UasinGishu KANU position, overthrowing Establishment favourites in the process. Eldoret North was the wrong place for him to flex his ostensibly puny political muscles, but the intrepid Ruto couldn’t care less. Reuben Chesire, the Member for the constituency and KANU bigwig was a first cousin of the President of KANU and the Republic of Kenya, Daniel Moi. Ruto was unknown in every sense of the word, even though he was well acquainted with Moi, courtesy of his university student leadership roles. But he did not possess the pedigree and profile that Moi and his system was greatly enamoured with. No family money or name, and no personal track record. On the contrary, his youthfulness was seen as a callow and brazen affront to the KANU elders and the way things were done per the Establishment. So, when he began to systematically build a political base in UasinGishu and KANU, the elders’ first reaction was contemptuous. Moi himself, in a visit to Ziwain Eldoret North, wondered how the people could vote an unknown uninitiated fellow. The disdain with which he relayed this perplexity was withering. Chesire, on his part did everything he could to show that Ruto was bereft of suitable leadership pedigree, unlike him, the scion of wealth and privilege, at whose home poor, orphaned Moi found refuge in his childhood. His campaign cast Ruto as an outsider Kipsigis angling for leadership in the Nandi heartland, and as a disrespectful youth who had no time for elders. The irony was that Chesire himself, a Tugen from Baringo, didn’t quite see himself as an outsider.
The Chesire campaign also resorted to KANU staple tactics of the time. One of them was ethnic sabre rattling. Eldoret North was a populous and cosmopolitan constituency with large Kikuyu and Luhya populations. The KANU majimboist extremist faction was in full flow, going round the country and propagating rabid xenophobic and violent messages in a well-heeled, officially sanctioned operation. The Chesire campaign, being the Establishment faction, latched on the majimbo message to intimidate non-Kalenjin voters and profile Ruto as the protégé of outsiders.
In time, Ruto handily captured Eldoret North in 1997. Chesire’s campaign never forgave, and never forgot.
Majimbo and Murder
A look at the newspapers of 1998 depicts a truly scary moment in Kenya. It is difficult to imagine what it was like to be an inhabitant of other ethnic groups’ ‘strongholds’. In reaction to the mounting push for multiparty democracy, KANU had retreated to fear-mongering through the majimbo strategy. The result was election-time ethnic violence in 1992 and 1997. The majimbo plan was to isolate the Kikuyu, who were seen as pro-opposition in order to prevent their leaders from wnning the presidency. Led by Nicholas Biwott and Paul Chepkok, both luminaries of the KANU establishment, political leaders threatened ethnic outsiders in political rallies, suggesting that eviction was an authorized means of confronting them.
In 1998, after the election, Biwott-affiliated politicians held rallies to threaten Kikuyus in Rift Valley with ‘dire consequences’ following MwaiKibaki’s High Court petition challenging Moi’s reelection. The petition was abandoned after Kibaki failed to personally serve Moi with court documents. The clashes following these rallies were in Laikipia and Njoro.
William Ruto, naturally, was unsympathetic to the KANU eastablishment, owing to their antipathy towards his leadership. He was also publicly contemptuous of their crude ethnic mobilization strategies, which he saw as a threat to the populations living in UasinGishu and Eldoret North constituency. Thus, as the majimboists went to town with anti-Kikuyu rhetoric, Ruto went the opposite way.
Typical headlines in 1998 were “Kibaki Petition on Moi in court” ( Daily Nation of 23rd January, 1998, which was followed by “Fresh Killings in Njoro area”(Daily Nation, 27th January, 1998), “Oh, Not Again!”(Weekly Review, 30th January, 1998, “Ethnic Cleansing” (Economic Review, 2-8 February, 1998) and “Pleas for lands boss to protect AP camps” (Daily Nation, 12th November, 1998).
Against the Grain
Meanwhile, Ruto was making different headlines. Between January and March, 1998, over 100 people had been killed in raids and revenge attacks between Kalenjins and Kikuyus in Nakuru and Laikipia districts of the Rift Valley. ”Jackson’s Plea to Moi, Kibaki” (Daily Nation, February 10, 1998) reports:
“Meanwhile, the Member of Parliament for Eldoret North, Mr William Ruto, said the time for talking was over and the Government should take decisive action to end the violence.
Mr. Ruto said:” only one man in Kenya took the oath of office to protect the lives and property of all Kenyans and the buck will finally stop with him.”
He said blaming one another while people were dying would not help anyone in the final analysis. He said the Government had the machinery to stop the clashes.
“Unless it has lost control of the security machinery people are not supposed to be left to suffer.”
Later that month,Ruto spoke once more about the crisis.
“MPs tell Wachira: Arrest plotters” (Daily Nation, March 22, 1998)
“Eldoret North MP William Ruto and his Dagoretti counterpart Beth Mugo yesterday challenged Police Commissioner Duncan Wachira to order the arrest of the people he claimed were planning to unleash chaos in parts of the country instead of engaging in rhetoric”
The Nation quotes Ruto further on: “Mr. Ruto said the Commissioner’s words had been taken very seriously by Kenyans, and if there are no arrests, he will have abdicated his duties.
The MP said he was concerned by the statement since violence had erupted in turbo, Moi’s Bridge and burst forest in 1992, and people had suffered immensely.
Said MrRuto, “Since the Police Commissioner seems to have enough information, I appeal to him to stop this nonsense of clashes.”
Since his debut in parliament, Ruto took courageous stands, frequently causing friction with the Government and KANU establishment, in order to project a pacific, sober nationalist message. One could say that this has brought him much grief in any event. In his own constituency, the ‘Chesire orphans’ continued to oppose and undermine, invariable siding with Ruto’s opponents. Biwott and his ilk hounded the young legislator throughout the rest of the KANU government. As a result, they never saw eye to eye on anything important, including the Moi succession, where the establishment initially moved to support support Prof George Saitoti against Ruto’s friend and ally, Uhuru Kenyatta, whom Moi had surprisingly chosen as his successor.
When things fell apart in 2007, Ruto’s embittered foes rallied against him and campaigned for PNU. To them, opposition to Ruto had long ceased to be ideological and political, and morphed into a sinister existential struggle. Their willingness to be drawn into the conspiracy to nail Ruto, and to suborn perjuries for that purpose only demonstrates the desperation and bitterness animating them. The witnesses have indicated as a matter of course, that they were sworn political enemies of Ruto. Reminiscent of Verona’s admonition in Romeo and Juliet,
“Two families, alike in dignity
In fair Verona, where we lay our scene’
From ancient grudge,
Break to new mutiny.”
Ruto’sdefence showed the Trial Chamber numerous video footage of Ruto preaching messages of tolerance, unity and peaceful coexistence during the 2007 campaigns. This is consistent with his attitude from his first month in Parliament. To disregard evidence of categorical behavior that has characterized his political career and prefer the words of mercenaries and liars says a lot about the process at The Hague.
The decision tomorrow is important. But its context has a certain tragedy to it. Of all people to arraign before the ICC, a conscientious, consistent advocate of peaceful coexistence was framed to settle political scores because once upon a time, he dared oppose ethnic jingoists and xenophobes when he should have known better.