ICC decision shows Uhuru still getting bad legal advice

Several weeks ago, Kenya’s numero uno — Jubilee’s Uhuru Kenyatta — issued a stunning legal edit. The country’s CEO unilaterally ruled that no other Kenyan will ever be taken to the ICC again. My jaw dropped. My legal instinct told me to peruse the Constitution. I couldn’t find a constitutional provision — or Kenyan law — that would accord Mr Kenyatta such powers. I declared the outburst a road-side declaration. That’s until AG Githu Muigai announced last week that indeed no other Kenyan would be hauled to The Hague. He declared that the three Kenyans indicted by the ICC for interfering with witnesses in the ICC cases would be tried locally in Kenyan courts. Let me pop this balloon.

Prof Muigai seems to harbour a toxic animus towards the ICC and its Chief Prosecutor Fatou Bensouda. I use the word “seems” because I doubt Prof Muigai — who has a good legal brain — can’t possibly believe some of the things he says. I have lost count how many times he’s obviously given Mr Kenyatta — and President Mwai Kibaki before him — the wrong legal advice. I have concluded with much sadness that Prof Muigai’s problem isn’t one of the intellect. The one-time human rights actor has devolved into a political hack. He will say — and do — anything to please the Executive. He’s carried more water on the ICC than any other state official. It’s very disappointing.