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# ICC deferral or default: The writing is on the wall

##### OPINIONBy Charles Kanjama | November 3rd 2013

By Charles Kanjama

In a 2008 Hollywood movie, 21, Kevin Spacey acts as a brilliant lecturer teaching some students how to make loads of money playing Blackjack in the casino. Early in the movie, Spacey asks his “non-linear equations” class a question, which he calls the “game-show host” problem.

“Ben, suppose you are on a game show, and are given a chance to choose from three different doors. Now, behind one of the doors is a new car. Behind the other two, goats. Which door would you choose?”

Ben responds, “Door number 1?” Spacey exclaims, “Door number 1! Now the game show host, who knows what’s behind the other doors, decides to open another door. Let’s say he chooses door number 3, behind which sits a goat. Now [he] comes to you and says, ‘Ben, do you want to stay with door number 1 or go with door number 2?’ Now, is it in your interest to switch your choice?”

Ben mutters, “Yes... My answer is based on statistics, based on variable change. Spacey challenges, “Variable change? But he just asked you a simple question?” Ben then gives a brilliant answer, “Yeah, it changed everything... When I was originally asked to choose a door, I had a 33.3 per cent chance of choosing right. But after he opens one of the doors and reoffers me the choice, it’s now 66.7 per cent if I choose to switch, so yeah, I take door number 2 and thank you for the extra 33.3 per cent!”

And Spacey lights up, “Exactly! People, always remember, if you don’t know what door to open, always account for variable change. Now, most people wouldn’t take the switch, out of paranoia, fear, emotions... But [Ben] kept emotions aside, and let simple math get [him] a brand new car!”

Well, Kenya faces a subtle choice on the ICC: deferral or default? It was not always this stark, but a number of choices, both at the ICC and in Kenya, have brought us down to this last choice. ICC had a chance to influence the debate, with a favourable ruling on the request for excusal from personal attendance, or by relocation of trials to Nairobi or Arusha. Whatever the merits of their decisions, ICC lost their chance.

Uhuru’s remaining applications, for attendance through video-link or permanent stay due to abuse of court process, have little chances of success. The Appeals Chamber ruling in Ruto’s excusal application will likely kill the video-link request.

And the Pre-Trial Chamber’s approach of allowing trial based on questionable intermediary evidence will likely torpedo Uhuru’s permanent stay application. After all, this same ICC overruled the quashing of charges in the Lubanga case despite prosecutor misconduct.

Some still think that Uhuru may yet be persuaded to attend trial. But this horse has also well and truly bolted. Uhuru’s speech at the recent Africa Union summit, with its harsh anti-ICC tone, probably sealed the deal.

The AU resolution granting him political cover probably added a padlock to the deal. And the realisation that ICC will allow a trial to go on despite all the evidence of witness coaching was like throwing the padlock key into a fast-flowing river.

It probably persuaded Uhuru’s legal team that the ICC may convict on politico-legal basis, and that this 20 per cent chance of conviction is too high a risk compared with remaining a suspect with constrained travel possibilities.

So don’t wait for Uhuru to go to the ICC, because by now it should be clear as daylight that it won’t happen. We may be unhappy about it.

We may think he is a coward or a cheat, based on his pre-election statements. We may even conclude he is violating our Constitution. But his potential decision to evade The Hague is likely as firm as the day of final judgment. Which brings us to Spacey’s concept of variable change and Kenya’s final binary option: deferral or default. Deferral is really the choice of the UN Security Council, and the decision to trigger default is ICC’s choice.

So there is no need for feverish last-minute speculation on whether Uhuru will fly to The Hague. That bird has flown. Uhuru’s team has realised that The Hague process might not clear his name, not because he is guilty, but because they doubt ICC’s integrity. Also that the ICC process will impose unduly heavy burdens on his presidency. We may second-guess him, but his choice is made.

So we wait for the UN decision on Uhuru’s deferral request. If granted, we can refocus our energies on development. If not, we must steel our resolve and prepare for a Kenyan turn, not so much to East or West, as to pan-Africanism and continent-driven development.

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