Kenyan diplomacy and jurisprudence have truly come of age with Ambassador Amina Mohamed and Attorney General Githu Muigai’s relentless, nuanced, counterintuitive and thoroughly professional frontal assault on the ICC process and the Kenyan cases at The Hague.
For a harrowing moment last week, Kenyans viewed the ICC reversal of its own ruling that allowed for President Uhuru Kenyatta to attend only parts of his trial is a capricious and despicable turn of events, on top of being insensitive to the point of explicit hostility.
Suddenly, the ICC drama reached the point of making the millions of his and Deputy President William Ruto’s supporters, many of whom even their most ardent political rivals and foes acknowledge comprise the bedrock and the backbone of the nation, heartily sick and tired of the international intrigues and insensitivities at play.
Forget the fatuous fiction by an opinion pollster to the effect that the majority of Kenyans support the ICC trials. Multiple pollsters assured Kenyans only a few months ago that the March 4 Presidential poll amounted to a protest plebiscite on the ICC cases.
The people of Kenya and of Africa generally would dearly like to argue the case instead of Presidential exceptionalism, and have done so through the AU, urging, for instance, that incumbent heads of State and Government not be prosecuted by the ICC.
The ICC’s bizarre pursuit of the Kenya PEV cases is unfortunate and wrongheaded in the extreme. Its equivalent in a European setting would be a not dissimilar pursuit in Britain of selected leaders of the Irish Republican Army (IRA) and the British Government over a selected series of terrorist events years ago and the UK state’s response to them that can be demonstrated to have happened to violate human rights.
Such an endeavour would be dismissed as over the top, and quite rightly and legitimately so.
Attorney General Githu Muigai’s dire warning that Kenya is “not, in our humble view, a country . . . the international community should play Russian roulette with”, cut straight to the heart of the matter.
Kenya’s key role in AU military efforts to defeat the al-Shabaab militia, an al-Qaeda affiliate, and fully liberate neighbouring Somalia, and this country’s suffering at the hands of this mad militia, culminating in the Westgate Mall terror attack, finally begun to count. Dr Mohamed’s consummate diplomacy ensured that this happened.
As President and Commander-in-Chief, Uhuru Kenyatta is the most potent symbol of Kenyan nationhood at a critical juncture in our national saga, the 50th year of Independence.
And Uhuru is not just one more politician at the top. He is the son of the late Mzee Jomo Kenyatta, Kenya’s foremost among the Founding Fathers, a man who was truly a titan of destiny.
Among the ICC’s many insensitivities in pursuing the prosecution of Uhuru Kenyatta against all African counsel is the fact that Mzee Kenyatta suffered one of history’s greatest miscarriages of justice under the British Crown’s prosecution of the Kapenguria Six in 1952-53 as “managers of Mau Mau”.
And even when, in 1958, while the British still ruled Kenya and the Six were still imprisoned, the chief prosecution witness recanted all his evidence against Jomo, admitted massive perjury and tabled documentary proof of having been bribed and relocated temporarily to Britain, the colonists still ducked the issue.
The spectacle of an alien jurisdiction again mistreating another Kenyatta freaks out millions of his supporters with fears of another vast miscarriage of justice for another generation of Kenyans.
Now Chief Prosecutor Fatou Bensouda has eaten an entire bakery’s worth of humble pie, in having to announce that the court will promptly comply with the States Parties’ amendments to procedure. A whole raft of activist Kenyan NGOs financed by foreign states and INGOs, the real fingers on the Russian Roulette trigger, are now gnashing their teeth.
They haven’t seen anything yet: Kenya has prayed for, and been granted, a States Parties’ session in February 2014 where the entire question of immunity for power incumbents will be comprehensively addressed. The African, Caribbean and Pacific Parliamentary Association, an inter-hemisphere grouping, meeting in Addis Ababa last week, have endorsed the same.
The ICC’s Assembly of Parties session at The Hague clearly averted a terrible prospect – if the court had been left to its own devices, it would finally have been high time that the incumbent Kenyan leadership ceased all cooperation with the process at The Hague.
It would have been time for the ancient paradox of Immovable Object (the ICC) meets Irresistible Force (the Kenyan Presidency) to kick in.
And the consequences would not all, or even majorly, have been to Kenya’s detriment.
(Mwangi is a lawyer)