According to Khan, the prosecution in the first place was wrong to embark on a process of proving a case that had already failed from the start.
“We say that’s a torpedo launched at a sinking ship, but the prosecution has said… let’s sail on.”
Ruto is accused of three counts of murder, forcible transfer of populations and persecution.
According to Khan, the prosecution has deviated from original allegations due to insufficiency of evidence.
“One of the characteristics of the case – which we say is relevant – is the fact that key allegations upon which this case was based on have disappeared,” Khan claimed.
In his view, the prosecution’s grip on Ruto was allegations that he was the head of a network established to orchestrate attacks in Rift Valley during the 2008 Post Election Violence.
He said the ‘engine’ of the prosecution case was the alleged network whose existence it failed to prove and link Ruto to its activities of planning and executing the attacks.
“The foundations upon which this case was built and the Pre-Trial Chamber said these were the 11 main meetings that amount to the development for the plan of the establishment of the network; it’s all gone, every last one of them. It was a good story for an opening speech.”
“But what happened to this network?” he asked.
“Staggering… we say, and revealing a disappearing act in which the military component has completely disappeared.”
The court further heard that the prosecution was not particular about the time when the alleged network was established.
“They accept that the planning meetings started a whole year later instead of it being one year in gestation and it’s now two months before the violence.”
Khan picked a bone with the prosecution’s allegation that Ruto hosted planning meetings of the network.
According to him, witnesses who testified about the alleged meetings had recanted or given false details about the meetings held at Ruto’s Sugoi home.
He further backed his claims with media reports to demonstrate that Ruto did not attend planning or fundraising meetings but was attending meetings in different locations together with other politicians including former Prime Minister Raila Odinga.
He submitted that the prosecution was only determined to fix Ruto without establishing his criminal liability with evidence.
According to the counsel, the prosecution’s evidence lacked credibility and reliability including its witnesses and therefore did not warrant Ruto to call his evidence.
“When a case is completely broken down either on its presentation or on fundamental questions being raised through examination as to the reliability and credibility of witnesses, in those cases of a case completely breaking down, your honours have the absolute right as independent and professional judges to assess credibility and reliability. This case is all about fill the girth not the quality, so it’s about the quantum not quality. It’s really revealing,” he said.
Ruto and journalist Joshua arap Sang are the two Kenyans facing same charges at the ICC following the 2008 violence which left over 1,000 people dead and over 600,000 others displaced.
The two have maintained they are innocent and after the prosecutor closed her case last September, they changed the traditional sequence by introducing the motion of no-case-to-answer which is not an automatic process at the ICC.
Trial Chamber V (a) which is hearing the case allowed them to file the motion seeking to terminate their case before they call their defence.
Sang’s defence lawyer Katwa Kigen on Wednesday also challenged the prosecutor’s position that a network was established to mastermind attacks in the Rift Valley.
After hearing oral submissions of the motion of no-case-to-answer, judges of the ICC will vacate the current sitting and will at a later date issue a landmark ruling to determine if it will be the end of the case against Ruto and Sang or if they will move to the next level of proving their innocence or the prosecution securing a conviction.
However, before the ruling, the Appeal’s Chamber is expected to decide on rule 68 which will determine if the prosecutor’s ‘significant’ evidence will be considered or not.
ICC Prosecutor Fatou Bensouda when asking the Trial Chamber to allow use of prior recorded statements of five witnesses said her case would be weak without their evidence.
She asked the judges to issue a ruling before the motion of no case-to-answer is determined.
The Victims Legal Representative Wilfred Nderitu is expected to make submissions on the motion by the defence teams on Friday.