A witness in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang at the International Criminal Court (ICC) partially answered an issue that has been the subject of speculation in Kenya for almost six years.
Gavin McFayden told the court on Friday that Ruto was one of the people named in what is generally known as the envelope in Kenya. This refers to a list of people who allegedly bear the greatest responsibility for the bloodshed that followed the December 2007 presidential election in Kenya. That violence is the subject of the trial of Ruto and Sang at the ICC.
The Commission of Inquiry into Post-Election Violence drew up the list and sealed it in an envelope that they publicly gave to former United Nations Secretary General Kofi Annan in October 2008. The names have remained secret since, which is why the list has been the subject of speculation in Kenya. McFayden served as one of three members of that government-appointed commission. At the time, the commission explained that it wanted the African Union Panel of Eminent Personalities that Annan chaired to keep custody of the envelope and related evidence until one of two of its recommendations was implemented. The panel mediated an end to the violence.
The commission’s first recommendation was Kenya form a special tribunal to try the suspected perpetrators of the post-election violence. If such a tribunal was formed, the commission recommended the Panel of Eminent Personalities hand over the envelope and related evidence to the tribunal. Failing that, the commission recommended that the envelope be given to the ICC. Annan handed over the envelope and related evidence to the ICC’s prosecutor in mid-2009 after Parliament voted down a law that would have formed the special tribunal.
On Friday, Ruto’s lawyer, Karim Khan, asked McFayden about the time Ruto appeared before the commission. McFayden said it was in October 2008, just before they finished writing their report, and Ruto asked to clear his name because he had been adversely mentioned in another report that had been presented to the commission. This was a report on the post-election violence prepared by the Kenya National Commission on Human Rights.
“When Mr. Ruto came before you, he was never confronted by the commission and told this was said about you?” Khan asked.
“No, I don’t believe so,” McFayden said. A few questions later, Khan introduced the matter of the envelope.
Then he asked, “Did his [Ruto’s] name appear in the envelope?”
“I believe it was,” McFayden replied.
Later on, Sang’s lawyer, Joseph Kipchumba Kigen-Katwa, also questioned McFayden on the commission’s list.
“May I ask you if Mr. Sang’s name was in that envelope?” Kigen-Katwa said.
“No, I don’t recall,” McFayden replied.
Earlier in the day, Khan asked several questions about the commission’s decision to give the envelope and related evidence to the African Union Panel of Eminent Personalities instead of President Mwai Kibaki who had appointed them. Most of the questions were ruled argumentative by the court. McFayden did explain that their rationale was explained in the commission’s report.
Khan persisted with this line of questioning, eventually asking, “What was the legal basis for that choice to exclude the President of the Republic?”
“I don’t have a legal background, so I can’t comment on it,” said McFayden, who served in New Zealand’s police service for 32 years and rose to the rank of Assistant Commissioner of Police.
Khan did also ask McFayden about the working relationship between the commissioners and their staff, how duties and responsibilities were divided up, and who was involved in the commission’s report writing. There was a light moment while Khan was asking McFayden about the average time it took them to interview witnesses given the limited time they had to do so.
“You didn’t spend half a day with a witness in Eldoret?” Khan asked.
“No,” McFayden replied.
“That’s a very efficient system, I must say,” Presiding Judge Chile Eboe-Osuji quipped, smiling.
“I hope your honors do not get ideas,” Khan responded, also smiling.
Kigen-Katwa focused his questions on whether the commission was able to get transcripts of radio broadcasts that had been reported to contain hate speech. McFayden said that as the report stated they received only one or two such transcripts, none of which were from the station Sang used to work for. One of the allegations against Sang at the ICC is that he used his position as the star presenter of Kass FM to organize violence. Kigen-Katwa also asked McFayden whether the commission received adverse information about the broadcasts of a variety of stations, to which the witness replied that was the case.
In re-examination senior trial lawyer Anton Steynberg asked whether the commission had tried to get transcripts of broadcasts from the stations themselves. McFayden said they did, but the stations were not forthcoming.
McFayden concluded his testimony on Friday. The trial of Ruto and Sang has adjourned until after the court’s summer recess, which ends on August 8.