Prosecuting Speech Acts: An Examination of the Trial of the Prosecutor V. William Samoei Ruto and Joshua Arap Sang

In 2011, following the post-election violence occurring in Kenya’s Rift Valley after the 2007 general election, where over 700 people died and more than 400,000 were forcibly displaced, the Office of the Prosecutor (Prosecution) of the International Criminal Court brought charges against, inter alia, Joshua Arap Sang, for the crimes against humanity of murder, forcible transfer, and persecution. In January 2012, Pre-Trial Chamber II, by majority, confirmed the charges against Sang, as well as those against William Samoei Ruto. The Prosecution alleged that the accused “planned and organized the violence in an attempt to seize political power should they not succeed in the elections.” However, the Prosecution was unsuccessful in securing a conviction against the accused and on 5 April 2017, Trial Chamber V(A), by majority, vacated the charges against the accused and discharged them. The present paper addresses the speech act aspects of the case against Ruto and Sang. Following a brief background, it analyses the charged modes of liability, before turning to the evidence relied upon by the Prosecution and how that evidence materialised (or failed to materialise) at trial. Thereafter, the particular speech acts alleged are discussed, focusing on the use of metaphors and coded language. The paper addresses, in particular, the charges against Sang, and how he as a radio presenter allegedly contributed to the commission of crimes against humanity, but it also discusses specific words or phrases allegedly used by Ruto during political rallies held prior to the Kenyan post-election violence, in order to illustrate the challenges and limitations of prosecuting alleged speech acts in the manner attempted by the Prosecution.