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.
I’ve concluded that Mr Kenyatta couldn’t have made the anti-ICC declaration without consulting the chief government legal advisor. That’s why the AG moved with dispatch to give legal cover to the edit. He told the nation — without so much as batting a single eyelid — that the so-called “witness fixers” will be tried in Kenya.
None connected to the killings, rapes, and pillage of the 2008 violence has ever been nailed in a Kenyan court. That’s because the State has been unable — and unwilling — to prosecute a single suspect. It stretches credulity for any sane person to believe that the State has now found religion and will prosecute the suspects, or those who’ve been charged with sabotaging the ICC cases. What a bunch of malarkey. If we are to believe Ms Bensouda — and there’s no reason to doubt her — isn’t it the “witness fixers” who killed the ICC cases, and led to their termination? Why then would the State — which has worked for six years to defeat the ICC cases — prosecute those who allegedly helped it bring the cases down? The Kenya government would be acting out of character, and against its own interest. Only a fool can buy that open lie. There may be no shortage of fools in Kenya, as one politico has reportedly said, but there are limits to human fantasy. No witness fixer will ever be credibly tried in Kenya under the current dispensation.
There’s no doubt that the State is continuing its war with the ICC in spite of the apparent end of the cases of the Ocampo Six. Mr Kenyatta and others are now talking about pulling Kenya out of the ICC. This is my unsolicited advice. The international community will take a very grave view of such an act. It will be read — in my view correctly — as an attempt to entrench impunity. The ICC, however flawed, remains the only credible threat against violent warlords. I believe it was the ICC that deterred Kenyan politicians from stoking violence after the 2013 elections. No one who is serious believes Kenya is politically mature enough as a state to police itself.
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The edict to stop the transfer of the “witness fixers” to the ICC is a loaded dice. It won’t stop the ICC cases against them. Nor is the ICC likely to accept the lame promise by the AG that the suspects be tried in Kenyan courts.
He can tell that to kindergarteners, but not the ICC. The bar for credible local prosecutions is too high to be met. The stakes are very high. A real trial of the “witness fixers” could re-reignite the cases against the Ocampo Six. Who knows — the suspects might start singing like birds, and implicate senior figures in the dirty dealings of sabotaging justice at the ICC.
Pulling out of the ICC, or refusing to handover the “witness fixers” to The Hague, won’t deter the ICC from pursuing them. The cases against them are live ticking time-bombs for the Ocampo Six. They may know a lot, and they may know nothing. But we won’t know what they know until they face a credible court.
Remember this — Kenyans can still be tried at the ICC even after Kenya pulls out. That’s because the UN Security can still refer cases to the ICC for non-party states, as was the case with Sudan’s Al-Bashir.