Kenyan ICC cases proof that the law is an ass



‘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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