The surrender of Paul Gicheru on Monday to the International Criminal Court could lead to new charges against Deputy President William Ruto and journalist Joshua Sang.
The charges against the two were vacated and the case terminated but the court said that the prosecutor can bring up the new ones if she found new evidence.
The Prosecutor would, however, need to restart all over again by seeking confirmation of the charges first as Luis Moreno Ocampo did in 2010.
Gicheru surrendered after five years on the run for interfering with witnesses in the 2007/08 post-election violence cases.
Gicheru is suspected of offences against the administration of justice consisting of corruptly influencing witnesses of the court.
Some of the witnesses said that they were initially bribed by the prosecution to testify against Ruto and Sang.
The court had issued arrest warrants for three Kenyans — Walter Barasa, Gicheru and Phillip Bett — on charges of obstructing the course of justice.
This was after chaos erupted on December 31, 2007, after the announcement of Mwai Kibaki as the presidential poll winner in a race he closely contested with ODM leader Raila Odinga.
Over 1,500 people were killed, 650,000 people were displaced.
Following the chaos, DP William Ruto was charged with crimes against humanity alongside journalist Joshua Sang and former ODM chairman Henry Kosgey.
The general charges also applied to President Uhuru Kenyatta, Francis Muthaura, and former police commissioner Mohammed Hussein Ali.
The ‘Hague Six’ were accused of murder, deportation or forcible transfer of population, persecution, rape, and other inhumane acts during the poll chaos.
ICC terminated the case against Ruto and Sang on April 5, 2016, about a year after President Kenyatta’s, which was dropped on March 13, 2015.
In 2016, the majority of the Judges of the Trial Chamber at ICC vacated the charges against Ruto and Sang.
The Prosecution said that the case was severely undermined by witness interference and politicisation of the judicial process.
The decision further noted that other evidence may have been available to the Prosecution “had it been able to prosecute the case in a different climate, less hostile to the Prosecution, its witnesses and the Court in general.”
In this case, 17 witnesses who had agreed to testify against the accused subsequently withdrew their cooperation with the Court.
Prosecution witnesses, in this case, were subjected to intimidation, social isolation and threats to prevent them from testifying.
The ICC issued an arrest warrant against Gicheru after it was established that from at least April 2013, a criminal scheme was designed to systematically approach and corruptly influence witnesses of the Prosecutor through bribery and other methods of inducements in exchange for their withdrawal as prosecution witnesses and/or recantation of their prior statements to the Prosecutor.
The evidence indicated that the said scheme had been run in an organised manner and with a clear distribution of tasks.
Gicheru was said to be a manager and coordinator of the scheme, meaning that he had finalised agreements with corrupted witnesses, organised the formalisation of their withdrawal and handled the payment.
But the ICC stated that there was no evidence that Ruto or Sang directly interfered with the witnesses.
“Prosecutor never alleged that there was evidence of personal involvement of either accused in the witness interference or political meddling that could intimidate witnesses. The judges did not find such evidence either,” ICC said in a Question and Answer session.
However, the judges made it clear that their decision is without prejudice to the presumption of innocence or the Prosecution bringing the case on the basis of the same charges in the future, or in a different form, in light of new evidence.
This means that if there is new evidence against Sang and Ruto from this surrender, the Prosecutor would have to start from scratch at Pre-Trial in order to have the charges confirmed again.