Back in September of 2013, I wrote a piece titled “The Hague Imefika” or “The Hague Has Arrived” where in response to the erratic commencement of the crimes against humanity cases against the three Kenyans charged, I offered that the cases against the deputy president Mr. Ruto could have started out “much smoother” and that Ms. Fatou Bensouda appeared “unprepared” to begin the cases. I also wrote that the high-priced lawyers, especially the ones representing the two principals, may successfully argue dismissal (of the cases); even acquittal for both the president and his deputy.
In this updated reading of the tea leaves, I am offering that several recent developments all point to the possibility I reluctantly theorized late last year when the trials begun: That one of the two principals may be acquitted or have their case fully dismissed based on the following:
- The January decision by the Chief Prosecutor to adjourn the case against Mr. Kenyatta, ostensibly to give her time to “obtain additional evidence and consider whether such evidence will fully meet the evidentiary threshold required at trial”.
- The recently announced sequence of meetings held by the court during late January and early February 2014, not to mention the one scheduled for Thursday, February 13.
- The recent announcement that suspect Mr. Kenyatta is “said to be on the invitation list” for the inaugural US-Africa Leaders’ Summit in Washington.
- The apathetic mood of Kenyans, indeed Africans, towards the ICC: The accused may be scoundrels but they are OUR scoundrels!
Given the foregoing, it is my opinion that the case against the senior half of the digital duo may be dropped for reasons that have very little to do with Mr. Kenyatta’s innocence and more to do with the politicization of the case as recently conceded by Mr. Ocampo; a scenario most Kenyans should be fully familiar with and that is always in the background in such high profile cases. Additionally, Mr. Kenyatta’s case may be dropped because he and his deputy Mr. Ruto were able to form a convenient and timely union – “coalition of the accused” – between their two populous communities and ride the “tyranny of numbers” to the 2012 presidency and deputy presidency respectively. The move was a masterstroke that dared their accuser – International Criminal Court (ICC) – to prosecute a sitting president and his deputy, the former a son of one of the founding members of Pan-African Movement. Calling their bluff and doing just that put the international organization in the crosshairs of the African Union (AU), an organization with a membership whose conduct, past and present, made the (ICC) court necessary. Sensing that they could be next, the big men of the AU formed yet another union aptly called “coalition of the threatened” less from the desire to do the right thing for their subjects and more out of self-preservation. The rest as they say is history.
As much as I was hoping for all the cases facing the Kenyan suspects to proceed i.e. be presented before the judges and heard to their conclusion replete with presentation of all available evidence, I have to respect, indeed commend Ms. Bensouda’s concession that she does not have the evidence to sustain the case. She does not have the evidence that will “meet the evidentiary threshold required at trial” not necessarily because the evidence does not exist, but because she is persecuting the very persons who control, thus can manipulate the levers that open or close access to said evidence!
The following comments made by the Victims’ Legal Representative Mr. Fergal Gaynor best capture the dilemma that faced Ms. Bensouda. The comments should also give pause to those interested in a Kenya, indeed an Africa where the rich and powerful are not above the law and are held to account by a fair and unfettered judicial process that cannot be blatantly manipulated. Said Mr. Gaynor:
“The fact remains that there was massive obstruction to availability of evidence from phone companies and the government. Nobody wants a conviction based on false evidence. “
The Irish barrister went on to say that:
“There have been unprecedented levels of witness intimidation and interference. The accused has devoted enormous resources to end the case. The national Commissioner of Police himself was charged but there was no interest in taking evidence which might implicate him. Little wonder that the Kenyatta case has suffered such devastating setbacks”
Echoing the very sentiments was a piece in the Global Post that wrote:
“The five-year-long procedures in the Kenya cases have displayed all the court’s weak points and flaws, including its dependency on state cooperation for evidence collection, difficulties in protecting its witnesses and vulnerability to political pressures.”
Finally, the man who set the ball rolling, the erstwhile Chief Prosecutor of the International Criminal Court Argentinian Luis Moreno Ocampo offered a variant of what the piece in the Global Post and Mr. Gaynor both said:
“….the Waki Commission…. gave a lot of evidence on Mr. Ruto and less on the atrocities allegedly perpetrated by Mr. Kenyatta…..(possibly) because Mr. Kenyatta was then in government which made it difficult for the Commission to gather sufficient evidence against him.”
The foregoing assessments are sad indictments on an international community that has at one time or another invariably said “Never Again” in the wake of wide-spread atrocities and extensive human suffering. The post-election violence of 2007 caused the death of 1,300 innocent Kenyans and to-date, most (Kenyans) cannot identify or name any high-ranking official or anyone for that matter who has been brought to justice for said mayhem: I certainly cannot cite a pronouncement by Kenya’s courts pointing to actions against people charged with fomenting the violence of 2007/08.
That Mr. Kenyatta may beat back the charges he is facing at The Hague would be a disappointment, not only to me, but to those in Kiambaa, Kibera, Kisumu, Nakuru, Naivasha etc. who not only lost loved ones, but life-long accumulation of relations and property at the hands of events and individuals allegedly organized and funded by the two principals.
On the other hand and in a uniquely Kenyan and now international community meme, most will “accept and move on” from the tragedy of PEV-2007 to the next one – in South Sudan, Syria, Central African Republic etc.