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Kenyan ICC cases not over, so celebrations premature

By Makau Mutua | April 17th 2016

There’s a mistaken belief in some quarters that the ICC Kenyan cases are over. That’s because URP’s William Ruto doesn’t have to stand at the dock at The Hague any more. Mr Ruto’s diehard supporters have convinced themselves he’s off the hook. But I have news for Mr Ruto and his acolytes — the ICC cases aren’t over. Not by a long shot. That’s because a case isn’t over simply because the judicial process has concluded. A case — especially one for crimes against humanity — is a complex phenomenon that has other important dimensions. Unless — and until — the underlying causes of the case are resolved no one can sleep easy. This includes the accused perpetrators and the victims.

First, even though the ICC judges ruled Mr Ruto had no case to answer, the court didn’t acquit him. Instead, the ICC declared a mistrial. In law, a mistrial simply denotes an inconclusive judicial proceeding. It means the defendant is neither guilty nor innocent because intervening factors have upended the trial. In a mistrial, the prosecutor is free to charge the case again. That’s why a defendant in a mistrial would be ill-advised to celebrate a legal victory. The ICC didn’t absolve Mr Ruto of wrong-doing. Rather, the court ruled that forces beyond its control had conspired to defeat justice. In plain English, the judges said that justice had been sabotaged. The tone of the ruling was angry.

The judges declared a “mistrial due to a troubling incidence of witness interference and intolerable political meddling.” In my view, this is an indictment of the accused, the Republic of Kenya, and the African Union who combined forces to deny the victims justice. Mr Ruto wasn’t therefore vindicated — as has publicly asserted — because the court didn’t proclaim his innocence. In fact, the judges explicitly ruled that the prosecutor could haul Mr Ruto into the dock again for the same offences. No one can with a clean conscience claim vindication when such a heavy cloud hangs over the manner in which the judicial hearing terminated. Both in the court of law, and that of public opinion, Mr Ruto remains a suspect.

Second, the braggadocio with which Mr Ruto and his sidekicks have greeted the court’s ruling is in poor taste, and further polarises the nation. Shockingly, Mr Ruto repeated a discredited canard — that he was “fixed” at the ICC by civil society. He then doubled down, and stretched credulity by “forgiving” witnesses and those in civil society who had “conspired” against him. If memory serves me right, Gatundu South MP Moses Kuria “confessed” that it was he and his PNU brigade that “fixed” Mr Ruto at the ICC. Whether Mr Kuria was simply bloviating or not, Mr Ruto can’t produce one iota of evidence to prove that anyone within civil society “fixed” him at the ICC, whatever that means.

I can only conclude that Mr Ruto is a master of manipulating narratives. It’s not lost on anyone that he and TNA’s Uhuru Kenyatta turned the ICC’s albatross into an electoral advantage in 2013. The duo played victims of the “white man’s” ICC to mobilise dizzying numbers of Kikuyu and the Kalenjin to vote for them. Now Mr Ruto has returned to that well again — this time as the party “wronged” by what Jubilee adherents have maligned as Evil Society. Propagandists believe that a lie often told becomes the truth. Mr Ruto seems to be an astute student of this school of thought. It’s such lack of humility that makes it difficult for the country to heal. Third, celebrating the ICC ruling is unseemly because it looks like dancing on the graves of the victims. Let there be no doubt — there can’t be lasting peace, or reconciliation, let alone forgiveness without justice for the victims. I am not saying Mr Ruto — or any of the others accused at the ICC — was guilty. Guilt or innocence has never been established. But to toast champagne for a mistrial smacks of haughtiness and arrogance. This is especially the case because victims have been forgotten by the state. The lives of hundreds of thousands were ruined by the violence. I am sure none of them was dancing last week when the ruling went down. Their spirits and ghosts will haunt the conscience of the nation — and perpetrators forever.

Fourth, and finally, those who don’t learn from history are doomed to repeat it. As far as I know, none of those who masterminded and perpetrated the violence have been held accountable in Kenya. This is impunity — pure and simple. If it’s not clear, let me say it again — no stable and prosperous society can be built on impunity. Those in power must take heed, or risk an even larger cataclysm than that witnessed in 2008.

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