Situation in the Republic of Kenya in the Case of Prosecutor v. Ruto and Sang (Decision on Defence Applications for Judgments of Acquittal)

The International Criminal Court (ICC) investigated violence that erupted surrounding elections in the Republic of Kenya causing an estimated 1,000 deaths and displacing hundreds of thousands of Kenyan citizens. A substantial amount of the violence targeted the Kikuyu ethnic group and was perpetrated by criminal gangs or militia groups associated with various political parties. The ICC prosecutor (plaintiff) charged several political leaders with crimes against humanity, including William Ruto (defendant), who was elected as the deputy president of Kenya. The Kenyan government opposed the ICC’s investigation and refused to cooperate with the investigators. Key witnesses were also intimidated and threatened until they withdrew their testimony. As a result, the ICC prosecutor eventually dropped some cases and the ICC’s trial chamber dismissed the others, including Ruto’s, due to inadequate evidence. The ICC panel of three judges was split three ways on the decision. One judge, Judge Herrera Carbuccia, wanted to continue the cases. Judge Fremr wanted to acquit the defendants, and a third, Judge Eboe-Osuji, preferred to declare a mistrial because the evidence’s weakness was due to misconduct by the Kenyan government. The majority dismissed the charges without prejudice, adopting Judge Fremr’s rationale on the evidence’s inadequacy and Judge Eboe-Osuji’s analysis of the applicable law. As part of his analysis, Judge Eboe-Osuji addressed whether the Rome Statute’s organizational-policy requirement for crimes-against-humanity charges required the existence of an actual organization.