Kenyan ICC cases proof that the law is an ass

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BY NGUNJIRI WAMBUGU

‘The law is an Ass’ is an expression from the English (not the Americans) depicting how the law can sometimes be as obstinate and as stupid as the donkey. Nothing explains this better than how the International Criminal Court cases against Deputy President William Ruto and Uhuru Kenyatta have rolled out.

Sample this.

In the case against William Ruto, the ICC Prosecutor has had to use force to get witnesses she herself procured, to attend court. They have then gone ahead and completely embarrassed her by recanting their earlier testimonies which they admit they were paid by her office to provide. They have done this in open court. However rather than demand their prosecution for perjury, the Prosecutor insists that they be considered hostile witnesses!

In the case against Uhuru Kenyatta, the Prosecutor has stated on several occasions that she does not have enough evidence to sustain the case.

However rather than ask for it to be terminated she wants more time to gather evidence. No one is asking her what will happen if the new evidence she gets points fingers at someone else. No one is reminding her that her predecessor insisted that their office ‘follows the evidence’. As far as she is concerned Uhuru Kenyatta is guilty. All that she needs is the evidence to prove it. If she cannot get it, she will manufacture some!

Did I misrepresent issues? No. We have learnt that nearly every witness the Prosecutor has relied on to build her case against both Ruto and Uhuru has ended up proving to have lied. In fact the very testimony she depended on to confirm Uhuru Kenyatta’s case has been thrown out after the witnesses were found to either have either lied or be unreliable. In a memorable sound bite, her office has even admitted in open court that they have turned over all the ‘stones’ they had in the case and found nothing; they are now left only with pebbles. But we will still convict Uhuru, she insists!

Then there is the financial windfall that is the Kenyan cases to the ICC and its various stakeholders. Individual careers have been made and thrived, new heroes have been created, and a lot of money has been put into people’s pockets. I can only imagine the sums all the legal teams have expended on these cases; or how much donors have poured into the ICC as an institution because of them.

Now this gravy train is under threat, albeit due to the ineptitude of one of their own; the Prosecutor. How does the institution and all its dependants preserve itself? Judges, lawyers, general staff, NGO “stakeholders”; how do they protect the source of their livelihood? They go out to do whatever is required to keep the cases going; even if ICC staffers must bribe witnesses to give false testimony.

Finally I get the feeling that some international powers are quite unhappy with how especially Uhuru Kenyatta has dealt with this case. No humility; no supplication. In fact he is challenging the stereotype of Africans as meek players on world affairs. These powers seem to be telling Kenyatta; ‘Yes a mistake was made; yes, you were elected by 6 million Kenyan people; yes, you have rallied the entire African continent behind you; but we can break you, and your little country if you buck the system. We did it to Iraq, Libya, Somali, DRC.

We are doing to South Sudan and Somalia. These guys were not guilty of what we accused them of; in fact guilt has nothing to do with this. International justice is about balancing the interests of dominant powers and states, from time immemorial. So get with the program, show some humility, and we will save you. Fight us and we will destroy you.’

All these explains why, despite their being no evidence; in spite of the judges being on record saying that an accused is not obligated to attend a status conferences; notwithstanding the fact that the case has been adjourned indefinitely; Uhuru Kenyatta has been summoned to appear before the ICC on 8th October 2014. They are daring him not to attend; then the system will have a ‘legitimate’ case; that he refused to honor a court summons.

The law is an ass; and clearly international justice leads the herd.

(Wambugu is the Director of Change Associates; a Political Communications Consultancy)

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  • mark

    Hi Wambugu. In your piece where you quote the 1654 Chapman play which used the words “the law is an ass” you portay a certain theoretical superiority, following on those Englisy playrights of yesteryear : you make no mention of the fact that witnesses have been intimidated ruthlessly, that Kenyatta’s and Ruto’s mandate is suspect and most of all that hundreds of thousands of victims remain in a kind of limbo awaiting the perpetrators of the post election violence to be brought to justice. This “ass” as you call it is trying to put right this dreadful situation.

    The law is not an ass but those who try and dispense it are indeed sometimes asses. The judges who cringe obsequiously before their political masters, the police who carry out extra-judicial killings and of course the politicians who give the orders are all asses.

    The ICC is an independent and professional court, not beholden to any world leaders, which will see its case against Kenyatta and Ruto through even if an arrest warrent for contempt of court is the only practical measure left to them. For that court and in fact for a great many ordinary Kenyans, the law is not an ass but a sacred and precious protection against tyranny.

    • Qwani

      State House my good fellow is one of the most highly guarded places in the country. That is well known to any Kenyan that has been to Nairobi. So when a witness comes out and says that they are part of the mungiki and that they held a meeting with Uhuru at …wait for it…State House, do not think that by coming to tell us that they were ruthlessly intimidated to change their story and withdraw is in anyway portraying yourself as intelligent.

      You are free to paint the ICC in whatever glorifying manner you wish. The fact is it conducted the most shambolic investigations ever seen for a case of this magnitude. Without a doubt, other countries across the globe are closely following these cases and those that are not members of the ICC will become more confident that they made the right decision not to join.

  • Natty Dread

    Those two opening paragraphs summarize the ICC-Kenya situation perfectly. Well done!
    IMHO, Uhuru should go to The Hague as he did in 2012, and face the OTP and her strange court with dignity. Shame on them all!

  • Nino Mugo

    Good work but one sided.

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