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Ruto and Sang case
Search for justice for victims of 2007-08 post-election violence
Kenyan Deputy President William Ruto and broadcaster Joshua Sang are on trial at the International Criminal Court (ICC), suspected of planning and organizing crimes against humanity during post- violence that followed Kenya’s 2007 presidential election which killed over 1,200 and displaced 600,000.

The trial opened on 10 September 2013.
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Who are William Ruto and Joshua Sang?
Ruto was elected Kenya’s deputy president in March 2013. As a member of parliament, he has previously held various ministerial positions in the Kenyan government. Sang is the head of operations at Kass FM radio station in Nairobi. Both are prominent members of the Orange Democratic Movement and are alleged to have established a network with the goal of gaining power in Kenya’s Rift Valley Province by committing crimes against supporters of then President Mwai Kibaki's Party of National Unity (PNU).


Ruto, Sang and Kosgey summoned to appear, suspected of crimes against humanity
On 8 March 2011, following an application by the prosecutor, PTC II summoned suspects William Ruto, Henry Kosgey and Joshua Sang to appear before the Court on 7 April 2011.

The three were suspected of having committed the crimes against humanity of murder, deportation or forcible transfer of population, torture and persecution, allegedly committed during post-election violence in Kenya from 30 December 2007 to 16 January 2008. They voluntarily made their first appearance before the Court on 7 April 2011.


Charges confirmed against Ruto and Sang
The confirmation of charges hearing in the case was held from 1-8 September 2011 in order to determine whether it should move to trial. On 23 January 2012, pre-trial judges confirmed all the charges against Ruto and Sang, finding that there were reasonable grounds to believe they were responsible for the alleged crimes.

However, charges against Kosgey were not confirmed.
Ruto is accused of being criminally responsible as an indirect co-perpetrator (i.e. of jointly committing crimes through other persons) pursuant to articles 25(3)(a) of the Rome Statute, for the crimes against humanity of:
  • murder (article 7(l)(a));
  • deportation or forcible transfer of population (article 7(l)(d)); and
  • persecution (article 7(l)(h)).

Sang is accused of having ‘otherwise contributed’ pursuant to article 25(3)(d) to the same crimes against humanity.
On 1 August 2011,the prosecutor had amended the charges against the suspects, withdrawing the charge of torture.


Two trial chambers established
On 21 May 2013, the ICC Presidency assigned the Ruto and Sang to Trial Chamber V(a) (TC V(a)), composed of Judge Herrera Carbuccia, Judge Fremr and Judge Eboe-Osuji. The case against Kenyan President Uhuru Kenyatta was assigned to Trial Chamber V(b).

Defence given more time to prepare for trial
The opening of the Ruto/Sang trial has been twice delayed in order to allow the defence adequate time to prepare. Originally set for 10 April 2013, it was first postponed to 28 May 2013 and then finally set for 10 September 2013.


Judges reject Kenya’s challenges to admissibility and jurisdiction of case
On 31 March 2011, the Kenyan government filed an application challenging the admissibility of the case against Ruto, Kosgey and Sang. It claimed that the country was undergoing a comprehensive legal and judicial reform and intended to investigate and prosecute the cases domestically.

On 27 April 2011, the Kenyan section of the International Commission of Jurists (ICJ-Kenya) requested to submit observations to PTC II on the national prosecutions before Kenyan courts and the admissibility of the case before the Court. PTC II rejected the request on 11 May 2011.

PTC II rejected the Kenyan government’s challenge on 30 May 2011, finding that there were no ongoing domestic proceedings in respect of the three suspects. The Appeals Chamber confirmed this decision on 30 August 2011.

On 30 August 2011,the defense for Ruto and Sang challenged the jurisdiction of the case before the Court. They argued that the level of organization and structure as part of which the crimes were allegedly committed did not reach the required level for crimes against humanity under the Rome Statute.Pre trial judges rejected this challenge on 23 January 2012.


Judges decide hearings to take place in The Hague
During the pre-trial phase, PTC II requested the parties and participants to file observations on the desirability and feasibility of holding the confirmation of charges hearing in Kenya. The prosecution, the defence and victims all expressed objections to so doing.

On 10 June 2011, No Peace Without Justice filed a request to submit observations to PTC II on the desirability and feasibility of conducting the confirmation hearing in Kenya. The request was rejected.

Before the trial phase, the defense for Ruto and Sang jointly filed a request to hold the trial in Kenya or at the premises of the International Criminal Tribunal for Rwanda in Arusha, Tanzania. They argued that this would minimise the disruption to the public and private lives of the defendants, facilitate investigations and bring justice closer to the Kenyan population. The victims opposed holding the trial in Kenya due to safety concerns and potential interference with the court process, with the majority preferring the trial to be held in The Hague.

On 15 July 2013,the plenary of judges of the Court rejected the joint defence request. 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. Ruto’s defense has asked for this decision to be reconsidered.


Victim authorized to participate in proceedings
During the pre-trial phase, PTC II indicated that victims had right to attend and participate in all public sessions of the confirmation hearing, to access the public record of the case, question witnesses upon the authorisation by the judges, and make written submissions on questions of fact and law. To date, 327 victims have been authorized to participate in the trial proceedings.

Prior to the trial phase, TC 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, while victims who wish to participate in absentia through a common legal representative would be subject to a much less rigorous registration procedure.

On 24 August 2012, the Civil Society Organisation Network requested to submit observations to TC V on victims’ participation in the proceedings. The request was rejected.
On 23 November 2012 Kituo Cha Sheria (Centre for Legal Aid Empowerment) filed observations on victims’ participation and representation.


Accused request to be partially absent from hearings
On 26 August 2011, Ruto requested PTC II to excuse him from participating in part of the confirmation hearing, in order to enable him to fulfil his official duties in the Kenyan Government. On 29 August 2011, the Chamber rejected Ruto’s request and ordered him to either attend the entire hearing, or to submit a new request to be absent from the whole proceedings.

On 28 February 2013,the defense for Ruto and Sang jointly requested TC V to authorise the accused to be present at trial via video link, on occasions to be determined on a case-by-case basis. The prosecutor objected to this, arguing that the Rome Statute does not provide a legal basis for appearance via video link and that to do so would be contrary to the interests of justice.

On 17 April 2013, Ruto filed an application seeking to be excused from continuous presence at his trial. Following this, on 18 June 2013,TC V(a) allowed Ruto to be partially absent from his trial proceedings in order to allow him to fulfil his official duties. He was ordered to be present during the opening and closing statements of all parties and participants, the presentation of the views and concerns of victims, the delivery of judgment in the case, the entirety of the sentencing and reparation hearings (if applicable), and any other attendance directed by the judges. The request to be present via video link technology was dismissed.

On 29 July 2013, the prosecutor appealed against this decision, arguing that it incorrectly interpreted the provisions of the Rome Statute and violates the principle of equal treatment under the law. Pending the outcome of this appeal, Ruto is required to attend all hearings in person.


Appeals Chamber rules presence must be rule, absence exceptional
On 25 October 2013, the Appeals Chamber unanimously reversed the TC V(a) decision excusing Ruto from continuous presence at his trial. Judges found that the TC had interpreted the scope of its discretion to excuse attendance too broadly, and that absence should be exceptional and decided on a hearing-by-hearing basis.
Based on this criteria, TC V(a) has since excused Ruto from attend¬ing several hearings.

At the end of September, the trial had been suspended to allow Ruto to deal with a terrorist attack in Kenya


ASP adopts new rules on presence of accused at trial
In November 2013, the ICC’s governing body - the Assembly of States Parties (ASP) - adopted changes to 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 and to be represented by their legal counsel. The Coalition has questioned the process that led to the changes.


For more information:
Read more about the ICC investigation on Kenya.
ICC YouTube Ruto/Sang case playlist - various background videos on upcoming trial, prosecution, witness protection, victims and more.
Factsheets
Author Title Date
Amnesty International
22089|22090 16 Sept 2013
CICC
21910|21911 05 Sept 2013
Human Rights Watch
21916|21917 02 Sept 2013