The International Criminal Court has engaged the minds of Kenyans since the then prosecutor Luis Moreno Ocampo called a press conference sometime in the year 2009, and declared that he would be making an application seeking to charge some Kenyans for crimes against humanity.

The ICC then became a huge campaign issue during the last presidential election in 2013 and for a long period afterwards. 

However, beginning with the Prosecutor’s withdrawal of the charges against President Uhuru Kenyatta in December last year, there appeared to be a lull in the level of Kenyans’ focus on the ICC.

This may be because it was taken by most that the subsisting case against Deputy President William Ruto and radio journalist Joshua Sang was of no consequence, and that the ICC cases would shortly be a question of recent historical reference, nothing more.

READ: As Uhuru case ends, what’s next for others before ICC?

This view appeared to have prevailed among Kenyans and specifically the political classes and government bureaucracy until sometime last month, when the Trial Chamber handling this case delivered a decision that permitted the inclusion of prior recorded evidence of witnesses who had either disappeared or refused to testify.

They were then compelled to do so but still repudiated what the Prosecutor would have considered to be the prime bits of evidence that supposedly linked Ruto to the planning of the crimes with which he had been charged.

Then, on September 10, a number of occurrences at the ICC escalated in a manner that leads to the conclusion that whichever way the case of Ruto and Sang goes, the ICC Prosecutor is not through with Kenya.

The first of these was that the Trial Chamber granted the accused persons leave to appeal against the decision that permitted the admission of the prior recorded evidence.

At or about the same time that the leave to appeal that decision was made, the Prosecutor made an application to the Court seeking to recharacterise the charges against Sang.

By this action, the Prosecution was effectively inviting the attention of the Court to the effect that it believed that the evidence it had adduced in court would have established sufficient grounds for the culpability of Sang beyond just the specific charges for which he had been charged.

Soon after this, the Prosecutor then gave formal notice to the Trial Chamber that the Prosecution would be closing its case and would not call in any other witnesses.

The weight or probative value of the evidence of the hostile witnesses may still be in question although its essence may be inferred from the manner in which the parties to it reacted.

Prosecution’s job

The Prosecutor formally closed her case on September 10, soon after the decision admitting this evidence was made by the Trial Chamber. It is possible that the admission of that evidence gave the Prosecutor the assurance that her job was complete.

In Kenya, that decision brought the ICC and the case of Ruto back into the limelight by complaints as to the fairness and the assumed challenge to the country’s unity and sovereignty.

The effect of the closure of the Prosecution’s case is that the defence now takes centre stage in the case. They will have to either apply for dismissal of the charges, if they believe that the evidence adduced is not sufficient to warrant a conviction. Alternatively, they may go ahead and call evidence to challenge the prosecution’s evidence.

However,  the fourth development around the time of the closure of the Prosecution’s case signals the fact the Kenyan ICC cases may not be about to end, whichever way the Ruto and Sang case goes.

This is because of the order by the Trial Chamber II for unsealing of warrants of arrest against Paul Gicheru, a lawyer, and Philip Kipkoech Bett on charges of interference with justice consisting mainly of corruptly trying to influence witnesses.

The warrants were originally issued by the court on the Prosecutor’s application in March 2015, but were sealed until the two persons were arrested in Kenya and arraigned before the High Court in Kenya to determine whether they should be extradited to the Hague for trials.  

This will form an interesting bit of the Kenya cases in light of the Prosecutor’s continuous claims that there was massive interference with witnesses in the Kenya cases — claims which the accused persons and the Kenya government have repeatedly denied.

The Prosecutor appears to have brought the hammer to the anvil on these claims in seeking to charge two persons, one of whom is an advocate. If there is evidence of this, the case against the two persons will tell us the extent of this interference.

Before then, the issue will be whether the Kenyan courts will order the repatriation of the two to the Hague.

Whichever way one looks at it, it appears that the Kenya situation at the ICC has just opened a new front and the struggle on this shall continue  for a while.