ICC's missteps play to Uhuru's advantage

Finally the event that many of the President’s supporters feared came to pass, with an amazing sense of anti-climax. Since he became the President, everyone has wondered whether Uhuru would agree to sit before a court that he has labeled unjust and illegitimate.

The President had lobbied the entire continent to pass a resolution that forbade him from attending the court. His body language when talking about the court generally exhibits an unusual defiance that betrays tremendous distaste for the goings on at The Hague.

What is sometimes lost in that ICC discourse is that for all its inconveniences, Uhuru “owes” a lot of his current status to the ICC prosecution. In one of those greatest examples of the laws of unintended consequences, the ICC single-handedly played the biggest role in getting the Jubilee duo elected to the Presidency.

It also elevated Uhuru’s stature in the continent to astonishing levels. The charges against these former foes cast them in the same political corner, enabling them to cleverly weave an injustice narrative, which, coupled with an underlying suspicion that some foreign hand was trying to manage Kenya’s politics from some Western capital, galvanised their supporters and delivered the Presidency.

His indefatigable campaign to rally a continent increasingly suspicious of the ICC, defined Uhuru as the ultimate victim, being pushed around by Uncle Sam to make an example of any African trying to be hoity toitty. It was not surprising that when Uhuru attended Mandela’s funeral he got the largest cheer from the South African crowd.

To the South Africans who had been victims of Western double speak during the apartheid years Uhuru’s tribulations and his willingness to stand up to the “Western bullies” rekindled in them their own frustrations with the West.

The court’s “complicity” in the elevation of Uhuru did not end there. When the court demanded that Uhuru attends the Status Conference, I was one of those who was genuinely surprised. By its nature the Status Conference is a pre-trial process that enables the parties lawyers to resolve any outstanding procedural issues before trial.

In this Status Conference, the only major issue before the court was whether the case needed to be adjourned because of Kenya’s failure to provide certain aspects of evidence to the Prosecutor thus violating its treaty obligations. There were no allegations made against the President personally, a fact that was emphasised by the Prosecutor during the conference. Why then was the President’s personal attendance necessary?

When the court refused to accede to Uhuru’s request for postponement or video link attendance, and when it finally became clear that his attendance added no value, the narrative of a bullying court was revived. His supporters believed that the court never intended him to attend, so as to issue warrants! Never mind that to its credit, the court had been unduly accommodating of the President, going to the extent of allowing him and his deputy to miss sessions because of their official responsibilities, a matter that goes against the very spirit of the Rome Statute.

Uhuru’s political masterstroke in then “handing over” the Presidency to his deputy to attend the court gave the President a larger than life profile not just in Kenya but in the continent. In real terms, the handover was largely symbolic, an otherwise routine administrative matter already required by the Constitution.

One must give credit to President’s PR machinery which has exploited the court’s unwitting actions to focus the conversation away from our collective role in Uhuru being at The Hague, including excluding from our Constitution presidential immunity for ICC prosecution.

This persecution narrative, unwittingly assisted by the Court and enhanced by the President’s own personal likeability and charm, has helped enhance his stature to that of a statesman in a manner unimaginable only a few years ago.

Amazingly, if the court grants Ms Bensouda the indefinite extension, it will most certainly propel Uhuru to a second term; the new narrative being that the court has delayed the case until there is a government amenable to the West! When the ICC matter is over, “kamwana” as the court told us is his “moniker”, will owe a big portion of his legacy to the court.