Make no mistake, Uhuru case at ICC is not political football

You can take this to the bank because it’s indisputable – you’ve never, and won’t ever – hear the sound of one hand clapping. That’s because it’s a technical impossibility. One hand simply can’t clap – alone.

One fingernail can’t kill a flea. This is my point – bloviators on both sides of President Uhuru Kenyatta’s crimes against humanity case are prone to false celebrations.

You can hear the braggadocio and false bravado of Kenyatta’s blind supporters every time the ICC appears to make a “favourable” ruling. But equally true is the corresponding “heartbreak” of those who support the ICC. It’s as though the ICC cases are a football match. Each “oh” and “ah” are palpable. But that’s not how the law works.

Last week, ICC Chief Prosecutor Fatou Bensouda said she wasn’t ready to commence Mr Kenyatta’s case because she hasn’t received crucial evidence from the Republic of Kenya. Translation – she doesn’t, as of now, have enough evidence to prove Mr Kenyatta’s guilt “beyond a reasonable doubt”. That doesn’t mean that Mr Kenyatta is innocent, or guilty. It means nothing – only that the evidence hasn’t been marshalled, if it’s there.

But Ms Bensouda is also saying something else – that the Government of Kenya is obstructing justice by concealing, or refusing to produce, necessary evidence. Obstruction, if true, is a serious offence, and could come back to bite Kenya in the rear. Legal processes can’t just be wished away through obstruction.

The adversarial legal process – of which the ICC is a variant – isn’t strictly speaking about finding “the truth”. That’s why many a guilty person often goes scot-free because investigators, or the arresting officers, have botched a key matter, or broken a law themselves in pursuing a suspect. A suspect who has committed a killing can be let go if the police torture him to reveal where he hid the murder weapon. Unreasonable searches and seizures can lead a court to suppress crucial evidence without which a conviction is impossible.

My point is that you could have ‘the truth’ – the murder weapon – but still fail to gain a conviction. Evidence – “the truth” – can be a casualty of legal technicalities.

But even when the evidence is there, the prosecution still has to make a convincing argument that the law was broken, and that the accused is culpable “beyond a reasonable doubt”. That is why the credibility of the witnesses and the prosecution is crucial. Judges – or in the jury – must be convinced that the evidence proves the commission of the crime. But let’s be clear – the proof is ONLY “beyond a reasonable doubt”.

That means there can be “unreasonable doubt”. My point is that proof of guilt doesn’t require “certainty” that the accused is guilty. Those who collect good evidence and are able to present it most persuasively carry the day. That’s why good lawyers can get off guilty defendants.

Which brings me back to the Kenyatta-Bensouda chess match. Folks should calm down and stop reading too much into ebbs and flows of Mr Kenyatta’s case. The ICC has ordered Kenya to produce critical evidence, but Nairobi has balked. This is the key question – what will the ICC now do? Will it throw up its hands and dismiss the case? Or will it bare its fangs and strike at Kenya in which Mr Kenyatta would be collateral damage? If it does the former, and walks away with its proverbial tail between its legs, it risks an existential crisis. If it does the latter, and forces Kenya to cry uncle, it may be seen as overzealous in Mr Kenyatta’s case.

Methinks that the ICC will tread carefully. But that doesn’t mean it will self-lacerate, or fall on its own sword. My crystal ball tells me that the ICC won’t come out of Kenya empty-handed. How the court reads Kenya’s failure to cooperate, or carry out its orders, will be the difference. Will the ICC see Kenya as giving it the middle index? Or will the court blame Mr Kenyatta for Kenya’s obstruction, and strike back?

Remember this – failure to produce crucial evidence draws an inference of guilt because it indicates the concealment of incriminating material. The same is true of witnesses who recant testimony. The question always is this – were they lying then, or are they lying now?

The logical inference – which is unavoidable – is that witnesses recant testimony, or evidence is concealed to benefit the defendant. I would be most worried about this fact if I was Mr Kenyatta. Defiance of the court will most likely be imputed to him. We don’t, and can’t know, how the court will respond. That’s why the sound of one hand clapping is a mirage. We should all chill and let justice run its course. Premature celebrations, or depressions, are a waste of time.