UN won’t end Kenya’s ICC cases, and this is why

By MAKAU MUTUA
Posted  Saturday, May 11  2013 at  19:44

Ever heard of a “Hail Mary” pass? It’s a desperation heave made by a quarterback in American football. It’s made at the end of a game – when defeat stares you in the face – and there’s virtually no chance of victory.

That’s what Kenya has done in asking the UN to terminate The Hague cases against President Uhuru Kenyatta and Deputy President William Ruto.

But, in a very strange twist, Mr Ruto denied being party to the request to end the cases. Make no mistake.

The truth is that the UN legally can’t – and won’t – terminate the cases. I know this – hell will freeze over before the UN makes such a bone-headed play. I have five reasons why Kenya’s plea will fail.

First, Kenya’s request will fail because it’s made by Mr Kenyatta. Kenya’s UN mission in New York represents the Head of State.

Kenyatta’s mouthpiece

The Kenya mission is an extension of Mr Kenyatta. Every action – or word – from the mission is Mr Kenyatta’s. The mission is nothing but Mr Kenyatta’s mouthpiece.

The Kenyan envoys to the mission – Mr Macharia Kamau and Ms Koki Muli Grignon – are Mr Kenyatta’s factotums. An indictee like Mr Kenyatta can’t sit in judgment of himself. The equivalent would be throwing open the doors to Kenya’s police holding centres and letting all suspects go scot-free.

The rule of law would go out the window. The inmates would be fully in charge of the asylum.

Second, Kenya’s argument is deeply convoluted and disingenuous. That’s because Mr Kenyatta has maintained that he will cooperate with the International Criminal Court. But now he wants to pit “democracy” against “justice”.

The petition argues – incredibly – that Kenya would go down in flames if he was forced to go on trial after winning the March election.

Entire region

There’s more. The request opines that violence in Kenya would destabilise the entire region. This is what’s called “taking a hostage”.

It’s a false dilemma – you let a suspected criminal go free, or risk hell from his supporters. That’s a blatant articulation of the “republic of fear” in the offing.

The message is clear – leave us alone, or we’ll set the place on fire. I don’t see the UN succumbing to such naked blackmail. If so, the UN might as well close shop and its members return home.

But this was my argument all along. Mr Kenyatta was determined to win the election to save himself from the ICC.

He’s discovered that ICC Prosecutor Fatou Bensouda won’t let go. She’s drafted additional charges against him. Like all good prosecutors, she’s great at her job.

More unsettling for Mr Kenyatta is that the ICC judges have rejected his key arguments. He’s lost virtually every major objection he’s raised in court.

That’s because the evidence against him – which the judges have seen – is very solid. The judges don’t believe his claims the evidence was fabricated.

Third, the Rome Statute doesn’t give the UN Security Council the power to “terminate” a trial. The Security Council can only “defer” a trial for 12 months, but not terminate it. Such “deferrals” can be renewed.

But it is the ICC itself – not the UN – that can end a trial. That’s why Kenya’s request is really a plea that asks powerful states to “lean” on the ICC to end the cases.

But there’s nothing powerful states can do “to make” the ICC drop a case. Attorney-General Githu Muigai has run out of tricks, and has now advised Mr Kenyatta to resort to the political “tactics of fear”.

Fourth, the UN knows that it will destroy the ICC or turn it into a laughing stock if it defers the Kenya cases. Why would a suspect, or state, ever respect the court if it let an indictee off simply because they won an election? Mark my words – the ICC would itself collapse if the UN were to grant Mr Kenyatta’s wishes.

Security fears

No amount of pleading – or threats based on fake regional security fears – will move the UN to cut the legs from under the ICC. This is what my crystal ball tells me – and you can take it to the bank. To do otherwise would abandon victims to the whims of brutes. The idea of international justice would die. Fifth, the UN is aware that Kenya has been trying to scuttle the ICC cases from the very beginning.

Under former President Mwai Kibaki, Kenya tried every trick – including VP Kalonzo Musyoka’s “shuttle diplomacy” – to kill the cases.

The Kenya Government acted – and still does – as though it was on trial as a country. Now Mr Kenyatta has made it clear that Kenya’s stability and future – and the region’s – depends on whether he can evade the ICC.

Kenya’s petition says in effect that Mr Kenyatta is Kenya, and Kenya is Mr Kenyatta. This is total hubris, and I bet the UN will make Mr Kenyatta carry his own cross. No single man should equate himself to a country.

I knew that Mr Kenyatta would defy the ICC if they ascended to power. I was right. I believe that he won’t cooperate with the ICC if his request to the UN is denied – as it surely will.

Then this will be the big question – will Mr Kenyatta be shunned across the globe, and Kenya isolated?

Mr Kenyatta’s camp was ecstatic when British PM David Cameron invited him to London. But they were apparently infuriated that PM Cameron wouldn’t give him a photo op. Such snubs can only increase if he shuns the ICC.

Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC. Twitter @makaumutua.