A prisoner is simply a restricted person. He is someone confined in limited by force of law. He may not leave that space until such a time as a superior authority will permit.
In a gone age, the Portuguese used to confine convicts to jail terms in Africa. The whole continent was seen as jail. And so a judge in Lisbon would say: “The court sentences you to six years in Africa.” They would load you into a ship and freight you to Africa, where you would be let loose.
Once in Africa, you were free to roam around as you pleased, so long as you did not leave the continent. If you should perchance sneak back to Europe, you would have to hide from the authorities all the time, lest they arrest you. Now you know that anyone running away from arrest is called a fugitive.
He watches over his shoulder all the time. He is afraid that someone might capture him and hand him over to the authorities.
Those who are urging President Uhuru to defy the International Criminal Court (ICC) are essentially inviting him to become at once a fugitive and a virtual prisoner.
They are asking him to confine himself into space that he could only leave at the risk of arrest, like a common Portuguese outlaw. But even in that space, Uhuru must be perpetually nervous. He must scrutinise everyone with suspicious eyes, wondering whether this is the one to arrest him, finally.
The life of a fugitive is a difficult life. It is full of indignity. That of a suspect in court is distressful. Our president is cast on the horns of a difficult dilemma. In the next few days, he must choose between the discomfiture of attending his trial before the ICC and the indignity of an absconder on the run.
The biggest tragedy for people privileged to occupy the seat of power is that they are often surrounded by a medley of sycophants and rent seekers.
They suffer from the bad counsel of a cocktail of self-seeking quacks and dilettantes. Their retainers and appointees care less that the king is naked, or that he is walking towards the edge of the cliff. So long as their short-term rent seeking interests are met, they will urge the king on to his perdition. They will help him to undress in public, even as he totters on the cliff edge.
Such are the people the President seems to have around him.
If Attorney General Githu Muigai were a useful counsellor, he would advise Uhuru that Article 143(4) of the Constitution takes away his immunity against prosecution before the ICC. He would also tell him that Article 27 of the Rome Statute denies him the immunity he craves. Finally, he would tell him that he is rightly before the ICC, not just because of these two items of law, but also because of Article 2(6) that legitimises the ICC in the Constitution and because he has taken an oath to protect the Constitution.
For her part, Amb Amina Mohamed of Foreign Affairs would seek subtle diplomatic avenues of lifting the yoke off the President and Kenya. That is what diplomats are there for. No matter is so intractable that a consummate diplomat cannot negotiate his or her country out of. If, however, Mrs Mohamed’s method is to join the chest thumping and screaming choir against the ICC, she will soon find herself in the same travel quagmire as might await her boss.
The ultimate liability is the company the President keeps in the AU fraternity, led by Uganda’s President Yoweri Museveni. For his own good and that of Kenya, Uhuru should stop listening to these people. Look, if President Uhuru absconds from the ICC, the court will at once issue a warrant of arrest against him. They will slap travel bans on him and freeze his assets and his family’s globally. Such are the nightmarish things that we think can only happen to strangers, until they happen to us. Our president is at risk of becoming a runaway fugitive – a sought after absconder with frozen wealth.
The local rent seekers and the foreign leaders telling Kenya’s President not to go to The Hague will soon drop him like a hot brick. They may occasionally scream from the fringes. However, when push comes to shove, the foreigners will shun him from their countries. They will not carry the cross of sanctions with Uhuru and Kenya. Ask Mr Omar Hassan al-Bashir of Sudan. He has a huge challenge each time he ponders travelling out of Sudan.
His cronies in the AU will usually whisper to him that they may have to arrest him. He cannot even overfly their airspace.
Meanwhile, Uhuru must choose between bringing the temple down on everybody like the Biblical Samson, and jumping alone into the sea like Jonah. We read in the good book that when Samson reached a dead end, he elected to go with everybody. It is written, “Samson said, ‘Let me die with the Philistines!’ He pushed with all his might and down came the temple on the rulers and on all the people. Thus he killed many more when he died than when he lived. (Judges 16:30).
Jonah, for his part, said: “Pick me up and throw me into the sea and it will be calm. I know it is because of me that this storm has come upon you (Jonah 1:10).
The way I see it, Kenya needs a reflective way out of the current dilemma. First, we must acknowledge that we are correctly before the ICC. Second, the Kenya Government must demonstrate that it respects the ICC procedures and processes as laid out in the Rome Statute and as has been carried out so far.
President Uhuru has five choices. One: He could go to the ICC and clear his name and he would become a global hero. Two: He could go to the ICC and lose the case and we would all have to live with the dire consequences. Three: He could elect to abscond.
Watch this space for options four and five, next week.
The writer is a publishing editor, special consultant and advisor on public relations and media relations