The question of referring the ICC cases back to Kenya have been off the table since the charges were confirmed against the Ocampo six who have now reduced to Bensouda 3. Now Bensouda appears to have thrown the gate wide open by stating that the cases CAN BE REFERRED if Kenya demonstrates that it can conduct fair trials. But what could have prompted this change?
The first interpretation could be that Bensouda does not want to appear inherently biased against the Kenyan judiciary and would not be opposed to any genuine gestures. This means that her statement could be pure rhetoric and not worthy of any attention. In my view, the petition exposed the weakness of the judiciary in a manner never thought possible. The country watched in dismay after evidence after evidence was disallowed before the case was finally dismissed over LACK OF EVIDENCE. The basis for the dismissal of evidence was countered by the Petitioner when Judge Oraro complained that he had just followed precendence. Uhuru had filed additional affidavits in exactly the same manner as Oraro's affidavits a little earlier only for Oraro's to be disallowed. He was asked to put his objection in writing and no finding on that objection was made public. The precedence quoted for the court was also questionable based on the countries involved. Who runs to Uganda for lessons on democracy....and why would a Supreme Court quote a dissenting judge in another country instead of sticking to the main ruling? So, there you have it. The unusually observant ICC must be aware of these questions too and Bensouda's statement may occasion no change.
The second interpretation could be that a deal has been reached. It would be logical to link this to the resounding endorsement of Kenyatta by the EU when against all the credible feedback they had to the contrary; they resort to claiming that the discrepancies would not have changed the outcome of an election. I fail to understand how the involvement of about 2million ghosts leaning on one side of the competition can fail to change an election result. But that’s a topic for another day. The point is that the ICC double speak and the EU decision are most likely interlinked. The UN rejected the idea of directly intervening to stop the cases but that doesn’t mean they have turned their backs on Kenyatta. They could still act strictly within the legal frameworks and influence the ICC to make an “independent” decision in referring the cases back to Kenya.
I have said it before, the West will most probably prefer an Uhuru presidency to any other president. For a very long time, Kibaki took away goodies that would ordinarily go to the West to the likes of China. Thanks to Kibaki, I can speak a few words in Korean. The East is definitely here. They had nothing against Kibaki for a very long time and could not have been able to stop him through their specialty: blackmail. The Hague blackmail however worked. The dropping of charges against Muthaura was a decision made because the prosecutor claimed to be frustrated by the death of witnesses and others being too afraid to testify. Kenyans bought that argument without giving attention to the fact that there might have been a compromise of sought. Having a president with an ICC noose only makes it possible for the West to have more than they ever bargained for. A man fearing for his freedom can give up a lot. Want any proof? Give it 24 months and look at the execution of the biggest contracts in the country. If they are still being predominantly carried out by China, call me to withdraw and apologise. And I can bet that I will not be apologising. The reality of the matter is Uhuru shall not go to The Hague. Your only worry should be: at what cost to the Kenyan citizen?
Referring the cases to Kenya by the ICC would help the UN kill two birds with one stone: help their new found weakened ally and secondly, retain the dignity of the court. But they err greatly in believing that the dignity of the court will be conserved by that decision. It will not be upon Kenya to demonstrate that it can conduct a fair trial: it will be upon the ICC to convince the world that there is a good basis to trust the Kenyan judiciary. That will be a tall order. In the history of Africa, there has never been a court that have been involved in a high stakes contest such as this and ruled against the sovereign. It is highly unlikely that this could happen. In my opinion, the Kenyan Supreme Court was not fair in its conduction of the presidential petition. If fairness could not be exacted when the contestants were mere candidates, how in hell can fairness be achieved when one of the parties is now president? In my view, the ICC will be digging its own grave if it allowed itself to be beguiled into referring the cases back to Kenya. It will lose not only the 34 African states, but also the 85 remaining countries. The ICC was founded for the law. They must uphold the law. If they must die, they must die for upholding the law. No other way.
For the sake of the ICC, I doubt they would want to dig their graves by referring the cases. That is a most unusual scenario. The West too would not want the cases dropped. After all, what assurance would they have that Kenyatta would not turn against them once free? They would want the cases to be alive as the noose which they can pull periodically if Kenyatta appears keen to defy them. This leaves us with one option: the delay of the cases. If this third option is to be taken, this is how things will unfold: The ICC will provide grounds under which it can refer the cases back to Kenya. Kenya will make the changes, albeit not thoroughly meeting the conditions. In the meantime, the cases will be delayed to allow Kenya to make the changes. Once a mechanism has been put in place, weaknesses will be identified. The ICC will not be satisfied. More recommendations. Further delay of the cases. More adjustments by Kenya............and the cycle will continue for years. In other words, Kenya will perpetually be kept on the weaker side of the bargaining table for as long as Uhuru is president. That is the truth of the matter.