Duale: The ICC conspiracy and how UhuRuto played hardball

Uhuru Kenyatta and William Ruto at the JKIA in December 2016. [File, Standard] And then, with knowledge about geopolitics, the President and his deputy had two aces up their sleeve. If the West was persecuting them, they could face East. That is why in August 2013, Uhuru went to China and signed deals in railway, irrigation and technology worth five billion dollars. That was the start of our debt problem, but at the time, the books looked good, the country could afford it. China was happy to stick it up to the West that had for years dominated the lending to Kenya. The other ace was the dozens of bilateral agreements that were in the works. All those agreements had to be ratified by the National Assembly. The order was that unless a country stuck out its neck for Uhuru and Ruto at the ICC, Kenya was not going to sign any agreement with them. For example, the defence agreement for the British soldiers to train in Kenya was up for renewal as was that of the space centre in Malindi run by the Italians. Everyone knew the Jubilee coalition had majority in Parliament, therefore ratification of the bilateral agreements was not going to be a problem if they played ball. The Western nations tried to short-circuit the process by coming directly to me, through their ambassadors and even visiting foreign ministers. But my answer was the same - help us get our leaders out of the ICC, and then we can talk about what you want. Two diplomats were a pain in Jubilee's neck during that time. One was Dr Christian Turner, then British High Commissioner, and Margit Hellwig-Bottes, the German ambassador. They had openly supported Raila's bid in 2013, and I remember seeing them in Bomas when results were being tallied behaving as an extension of Raila agents. Turner had showed up in 2012 and immediately sided with Raila, giving us the impression that the British had already picked a side. We didn't like him much, and I think, it took the British longer to realise that he was useless in pushing through the defence agreement. For Margit, her government realised what had happened and quickly deployed her to Tanzania. But then Tanzanian President Jakaya Kikwete rejected her. No explanation was given, but her conduct in Kenya was not a secret. She went back to Germany. The office of the Attorney General, led by Prof Githu Muigai, an accomplished lawyer and legal scholar, who spoke thoughtfully, had given all its resources to defending the country, and by extension the President and his deputy at the ICC. All these efforts had pushed ICC prosecutor Fatou Bensouda into a corner. She was having difficulties getting additional evidence to sustain a case against Uhuru and Ruto, because her predecessor Luis Moreno-Ocampo had gone for the politics, and not the law-he was furthering an injustice. Ocampo left the ICC in June 2012 after nine years as prosecutor. Bensouda was the new sheriff in town to prosecute the Kenyan cases. Bensouda's only ace was to gamble that Uhuru was likely to reject summonses to court. Therefore, when the ICC called him for a status conference on 8 October 2014 to discuss the details of a trial, Uhuru's lawyers pleaded to appear via video link. The request was flatly rejected. The hope by the foreign powers behind the ICC case was for Uhuru to refuse to appear, and then have an arrest warrant issued. Some top security chiefs were asking Uhuru to defy the court. "You will embarrass the country. You will be the first sitting Head of State to appear at the ICC. Don't go," they said. Uhuru listened as they spoke and I could see he was pained, conflicted. He needed a way out quickly. Someone in government came up with a bold idea and shared it with President Uhuru: Why don't you hand over the presidency to your deputy, go and appear before the ICC in your personal capacity, then come back to power? The Deputy President is constitutionally expected to take over from the President whenever he is absent. Therefore, there was really no difference. But the President loved the idea, and I must credit him for respecting the summons, because, if he hadn't, he would have lent credence to the baseless conspiracy that was the ICC case. "Let's do it," the President said. Former International Criminal Court prosecutor Fatou Bensouda. [AP photo] Everyone was shocked. He went on: "We have to respect the law. I don't want to be a pariah, and to make Kenya suffer the sanctions that would surely follow. I will go." He summoned the National Security Council and explained the situation. To the military bosses, having their Commander- in-Chief submitting to the authority of an international court was unthinkable. But the pragmatic realities trumped the sentimental optics. He would designate Ruto as acting president, give him his office and all the trappings of power, and leave for The Hague Uhuru's inner circle, always wary of Ruto, was on tenterhooks. "What if he carries out a coup?" they asked. "What happens if you don't come back? They may arrest you," another said. Uhuru knew Ruto was ambitious, but he also knew he was loyal. They were in the ICC boat together, and they had to work together. Ruto was his friend. He also knew he had met all conditions that the ICC gave when it indicted him as a suspect, so there was no chance that he was going to be detained on the trip, even as a private citizen. Uhuru asked the two Speakers of Parliament to summon all MPs to allow him to address "a matter of national sovereignty". So it was that on Monday, the afternoon of 6 October 2014, Uhuru came to Parliament and explained the situation to the country. The following morning, Uhuru arrived at the Jomo Kenyatta International Airport in a light motorcade, wearing a pair of light- blue jeans, a grey polo t-shirt with black stripes, a navy-blue blazer, loafers and a cap, ready for his court date. To anyone watching, the formality of the presidency - with a red carpet, traditional dancers and a presidential jet on the presidential pavilion had been stripped off, making Uhuru appear like any other traveller, perhaps a celebrity at the airport. But to the keen eye, the presence of the ministers, the protocol at the airport, and the bodyguards, it was just a charade, a make-believe spin that he was no longer president. He went through the passenger scanner with his wife Margaret in tow, for the pictures, but he did not remove his belt, or hat, his phones were still glued to his left hand. She kept her handbag by her side, as the bodyguards whizzed through with their guns. He then boarded the Kenya Airways flight, sitting in business class, to Schiphol International Airport in Amsterdam, from where he was picked in diplomatic cars to his hotel, ready for his court date at The Hague the next day. When Uhuru arrived in a smart dark suit, white shirt and snappy tie, he was mobbed by a crowd from Kenya. His security had a hard time clearing the way through the mob that led him into the courtroom. The galleries were full. "I won't say much, but you have all heard, they have nothing against me," Uhuru declared after the court date. His jittery advisers quickly fired a memo saying Ruto's acting powers had expired, and even though the President was abroad, he had resumed his duties. He was now in charge. The charade was complete, the record reflected that he had appeared as a private citizen, but the reality was anything but. On 13 March 2015, the court terminated the proceedings effectively making Uhuru free Now, all the eyes were on Ruto. As soon as Uhuru got off the hook, the coterie of cronies around him with a grudge against Ruto began scheming against Ruto. However, there was yet another camp around Uhuru that knew without Ruto, Uhuru was toast in his re-election bid. Uhuru Kenyatta (right) at the ICC in the Hague, Netherlands. [File, Standard] They prevailed upon Uhuru to call the hardliners to order. He did very publicly. Ruto's case was also a government priority, and no resource would be spared in getting him off the hook, it was said. "As long as my brother is still in that imperial court, we are not done," Uhuru used to remind everyone, at every opportunity.' The Western nations had calculated that if they let Uhuru go, they could prosecute Ruto. They had mistakenly assumed that political betrayal would take priority. However, I think Ruto was saved by the fact that he had security of tenure, and he still had enormous political capital with the opposition running riot in the country, pushing Uhuru into a corner. Uhuru could not afford to dump Ruto before 2017. Ruto's trial at The Hague opened on 10 September 2013. All through, I used to sneak in and out of the country to go visit him at The Hague, where he was holed up with Charles Keter at his side. The case trudged on with breaks until 10 September 2015, when the prosecution closed its case. In November 2015, we descended on The Hague for the Assembly of State Parties, the oversight body of the ICC. Before that, I had travelled to London in the United Kingdom for a meeting in the House of Commons. "Mheshimiwa, I am sorry to call you, because I know you have a packed afternoon. But the Foreign and Commonwealth Office wants an urgent meeting with you," then Kenyan High Commissioner to the UK, Lazarus Amayo, told me. "Who wants to meet me? I have a flight at 8pm. It is now 4pm. I am not sure I can squeeze in a meeting right now," I said. "Please Mheshimiwa, just a quick short meeting. He just heard that you were around and he wants to talk to you," Amayo pleaded. I rushed to the Kenyan High Commission and together we drove to the Foreign and Commonwealth Office, where I met the UK Minister for Africa. There were two other gentlemen in the room. We engaged in the usual diplomatic banter, support for the civil society, and UK relationship with Kenya. Then he quickly pivoted to the defence agreement. "What's happening to our defence agreement?" he asked. "You know, Mr Minister, I will be frank with you. Perhaps your ambassador has not made it clear to you about how serious the cases against our leaders at the ICC are. Nothing will move until those cases are dropped," I said. "Is that the position of the Kenyan government?" he asked, and I could read a threat in his tone. "No. I am telling you the reality. I have that document on my desk. But if Ruto is still being pursued by the ICC, let me assure you, if I bring it for the vote right now, it will be rejected. My colleagues in Parliament do not want to see anything to do with you people. As far as we are concerned, your government is behind the Kenyan cases at the ICC," I said, my eyes fixed on his. He was unbalanced for a moment, and quickly recovered. "Okay, we'll see what to do about that," he said. William Ruto at the ICC in the Hague, Netherlands. [File, Standard] The meeting quickly ended, and Amayo and I left for the airport. I flew to The Hague ready for the Status Conference and found dozens of MPs, governors, civil society activists, academics, lawyers, everyone. The place was full of Kenyans. Earlier that year as part of the diplomatic efforts, the President of the Assembly of State Parties, Sidiki Kaba, Senegal's Minister of Justice, had visited Uhuru, as part of the back-channeling that Amina had done with Senegal. The strategy of the politicians and the pro-government activists was to stop the usual gang of civil society that had made the ICC cases their cash cow from making a coherent case to the plenary. We would take up all the available seats to lock them out. Unfazed, they devised their own clap-back: They printed t-shirts, flyers and leaflets with politicians as the faces of impunity in Kenya then distributed them at all coffee spots for other delegates to see. We would pick up all the leaflets and dump them in the garbage bins in the hotel room, but every morning they would come back with more. For two days, nothing moved. Delegates were frustrated. I met Senate Majority Leader Kithure Kindiki and we barged into a room where ambassadors from the European Union were meeting. "We'd like to talk to you about the Kenyan demands," Kindiki told them. It is at that meeting that we realised that our problem was a short plump British woman. When we stepped out, the representatives in those meetings called the ambassadors back in Kenya, and I recall receiving calls from the Italian, German, French, and EU ambassadors in Nairobi telling me that they did not have any problem with us. Talk to the British, they all said in the separate phone calls. That evening, Hussein Mohammed and Francis Gachuri of Kenya's Citizen TV were at The Hague. They asked to interview me on the day's proceedings. I went on TV and decided to spill the beans about the British role. When I finished the interview, my phone rang. It was Turner, the British High Commissioner in Kenya. I did not pick. He called again after a few minutes. "Why are you exposing my country. Why are you not talking about the other European countries,"Turner asked, fuming over the line from Nairobi. "I have confirmed that your government is the owner of the ICC cases against Kenya," I said. He denied, but he kept his cool. The following morning, I got a call from State House saying the then British Prime Minister David Cameron had called Uhuru to complain about my remarks, but the President had said, he wasn't at The Hague, but would follow up. Of course, by that time, he had the intelligence reports. There was a change of guard at the British Embassy as Turner was recalled-he just could not function, he had become like a leper, no one in the Kenyan government wanted to touch him. The new British High Commissioner, Nic Hailey, called me as soon as he arrived. "How do we play this?" he asked, referring to the defence agreement. "As soon as Ruto's case is dropped, we will pass the defence agreement the following day," I promised confidently. "Are you sure that's the only roadblock?" he asked. "Yes". Former British High Commissioner in Kenya Christine Turner. [Jenipher Wachie, Standard] On 6 April 2016, the court declared a mistrial and vacated the charges against Ruto and Sang. All the diplomatic efforts had borne fruit. The URP wing exhaled. Uhuru breathed a sigh of relief. As soon as the court dropped the charges, Hailey called me and Solicitor-General Njee Muturi to a short meeting at the Serena Hotel. "You promised that as soon as the cases are dropped, you will do your part. When are you doing it?" he asked. "I am working on it," I said, trying not to be specific. "You know, you are going to face challenges with my government," Hailey said. I did not get the import of that statement at first. When the meeting ended, I called a close friend who works at the UN and told him what Hailey had said. "Listen, that is a threat. When a diplomat tells you that, he is saying that you may face denial of visa, and even sanctions. You are a Muslim. Go figure how bad it can get with their allies and their borderless war on terror. Give them what they want," my friend, an old hand in international politics and diplomacy, counselled. I called Njee and relayed the message. Njee and I went to State House to see the President. On the day that I brought the defence agreement to the House, British officials came to the National Assembly and sat in the public gallery to follow the debate. I whispered to the MPs that if they opposed the agreement, they should know that they will be marked for life. "You will never get a British visa," I exaggerated. The joke scared some, but Midiwo was unmoved. I called the High Commissioner again. "Please call Raila Odinga and tell him to rein in the Minority Leader, Midiwo, or else he will scuttle this thing," I said. A few moments later, Midiwo came to me, fuming. Raila had asked him to drop his opposition to the defence agreement. "I didn't know this thing was that serious," a baffled but intimidated Midiwo said. "Yes, it is a life and death matter for some of us," I said. On 1 September 2016, the defence agreement was passed, and Hailey fired a statement celebrating the ratification. I had survived. The ICC fightback was now complete.

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