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.
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