End this circus and deliver justice to victims and suspects of Post election violence

I simply don’t get it! And it is easy for me to explain away my ignorance — I am a layman. Fact. In my attempts to navigate the contours of law, I sound ridiculous to a lot of my lawyer friends. Fact. In fact, in many cases law does not make sense to me. Especially when it is applied in situations contrary to fact. These facts are the least of my concerns.

But, and this is a big one, I have a strong sense of justice. I pursue it. I administer it. I know how it looks like whenever I see it. On what law does a prosecutor stand to declare that she has no evidence to sustain a case against an accused person but still hang on the case? The ICC is billed as a court of evidence; the highest criminal court in a state of international anarchy. A court with powers to bring kings and rulers to bow before its judges. The court of last resort in obtaining justice for victims.

If it were not for the seriousness of the alleged crime and the stature of the accused, I would find the case against President Uhuru Kenyatta a most hilarious comedy. But even in my layman’s appreciation of the alleged crime and the profile of the suspect, I dare say that whichever way this matter goes ... it is a referendum on the independence and competence of the office of the prosecutor. And this is why.

When ICC Chief Prosecutor Luis Moreno Ocampo invaded the Kenyan space, he spoke tough. He vowed to slay the dragon of impunity. He promised to make Kenya an example to the world. Listening to him speak, I was so sure the guy from Argentina had it all wrapped up and that in the courtroom, he would tear defence lawyers into pieces and obtain instant justice for victims.

But by the time he was leaving the scene, the credibility of his evidence, unconvincingly delivered in badly structured English sentences, had been so severely undermined — for the most part by his own shoddy investigations — that he no longer sounded like a brave prosecutor but more like a typical Kenyan politician. I have since written the guy off.

Courtesy of the cases before it, the ICC has become an everyday topic of discussion in Kenyan homes, offices, churches, mosques, political rallies, salons and barber shops. Our children in school talk about ICC on daily basis. And in the minds of many, Uhuru Kenyatta and William Ruto are the personification of the ICC. In Kenya, you can’t meaningfully talk about the court without reference to the two.

These are our leaders. Elected through universal suffrage to lead Kenya. The two constitute the presidency; Kenya’s symbol of national stability. Whatever arguments exist for or against the current presidency must fade in the light of any threat to the stability of our nation.

That is why I am sticking out my neck for Kenya. Someone, obviously not me, must bring this circus to an end. What is this all about? And what is the end game? Key witnesses in the Kenyan cases have recanted their statements. Many others have opted out. The remaining few are being forced to testify. And when they open their mouths to speak, they spill the beans on how they were coached to fix suspects. To complete the cycle of drama, the OTP wants ICC judges to declare prosecution witnesses hostile.

In all this court drama, victims of post-election violence continue to suffer every passing day. I have lost count of the number of times their lawyers have been changed. And the OTP’s shoddy investigations have returned to haunt Bensouda’s office. This is where law begins to play games with me: Is the pursuit of justice for victims mutually exclusive to justice for accused persons? Can victims and Uhuru and Ruto and Sang obtain justice at the ICC or must some parties be humiliated for justice to be seen to be done to other parties? Any law that places a higher premium on perceptions of justice over and above the substance of evidence is indeed an ass. A big one!