Pause and search your conscience, Mr Attorney-General

 
By MAKAU MUTUA
Posted  Saturday, June 1  2013 at  15:54

The Bible has many nuggets of wisdom. That’s why I refer you to Mark 8:36. Its admonition to earthlings is simple. It asks – for what does it profit a man to gain the whole world, and forfeit his soul?

You are ambitious, and that’s a good thing. But ambition – no matter how burning – mustn’t be allowed to stand in the way of public good.

This is my point – I believe, as a fellow jurist, that you’ve misadvised the Kenya Government on The Hague cases against President Uhuru Kenyatta and Deputy President William Ruto.

You’ve deliberately conflated the interests of the two indictees with those of the Republic of Kenya. This is my advice to you – read and ponder Mark 8:36.

I’ve known you for a long time. In our youth, you were at Columbia Law School while I was at Harvard Law School. I’ve proudly watched your career. You became a top legal practitioner and a decent academic.

You were appointed to the defunct Constitution of Kenya Review Commission. In 2002, it was reported that you and several CKRC commissioners had secretly met with former President Daniel arap Moi at State House.

The scuttlebutt was that you sought to undermine Prof Yash Pal Ghai, the CKRC chair, and sabotage the constitutional review process.

The facts were murky and never fully settled. Methinks that was the first hint of your pro-establishment DNA. Matters have only gone downhill from there.

But you are quick to the draw. You’ve confounded friend and foe alike with deft moves. For long, you maintained one foot in civil society, the other within the State.

You got yourself appointed – courtesy of the Kibaki government – UN special rapporteur on racism and xenophobia. You parlayed yourself as a human rights icon par excellence.

You are slippery

I’ve got to give it to you. You are slippery, and not easily pigeon-holed – until now. I guess there are no more tricks in your hat. At last you’ve come out in your true colours.

But this is the question – are you Attorney-General for Mr Kenyatta the person, or Mr Kenyatta the President? You shouldn’t – and mustn’t – confuse the two. But you have.

This is why. Recall that President Kibaki appointed you AG in 2011 against a huge public outcry. He wanted to unconstitutionally bundle your appointment with those of the Chief Justice and Director of Public Prosecutions. Civil society forced him to retreat on the latter two, but he prevailed in your case.

But no sooner were you appointed than Kenya’s relations with the International Criminal Court really soured.

ICC Chief Prosecutor Fatou Bensouda has repeatedly accused you of lack of co-operation. You refused to provide crucial information on the ICC indictees. You’ve publicly admitted as much.

But it is your rhetorical venom and disgusted body language against the ICC that leaves no doubt what you feel. It’s like a personal affront.

There are two critical decisions on the ICC that bear your fingerprints. That’s because the ICC trials are a “legal” matter, and the State can’t act without your advice.

The first is the bizarre letter by Kenya’s UN ambassador Macharia Kamau demanding that the Security Council terminates the ICC cases.

You very well know that the UN Security Council has no power – at all – to terminate ICC cases. So, why would you advise the government – despite your protestations to the contrary – to make such a boneheaded play?

Besides, why do you act as though Kenya is on trial? Mr Kenyatta himself repeatedly said during the campaign that the ICC trial was a “personal challenge” and not a state matter.

But the biggest shock was your advice that Kenya should seek – and press for – the African Union resolution to terminate The Hague trials. You seem to believe that Mr Kenyatta is the Republic of Kenya, and the Republic of Kenya is Mr Kenyatta.

The AU resolution is an ignominy meant to give Mr Kenyatta the “excuse” not to show up at The Hague.

It makes a mockery of the AU and puts Mr Kenyatta in an untenable position. He’s painting himself into a corner, and forcing a collision with the West. This is a contest he can’t win. But he may feel that it’s better to be a pariah than to show up for trial at The Hague.

You and I know – because we are international lawyers – that the AU resolution is going nowhere. It will be a humiliating failure that will leave Kenya, Africa, and Mr Kenyatta with lots of egg on the face.

No one of sensible mind believes that the ICC is “race-hunting” Africans.

The reverse is true – it’s African leaders who’ve been “hunting” their own citizens for 50 years. And they’ve gotten away with it – until the ICC. Besides, it’s African states themselves that willingly joined the ICC.

No one forced them. Perhaps they joined thinking that the ICC was like the local court in Kibera which they could buy or silence.

A sick joke

Do you really believe that Kenyan courts can try Mr Kenyatta? The AU resolution to bring the ICC cases back to Kenya is a sick joke on victims of the post-2007 election violence.

How things remain the same even as they change. The AU has acted just like its notorious predecessor – the OAU. The AU is a club of dictators, by dictators, for dictators.

But what concerns me most is the bad legal advice that you’ve given Mr Kenyatta and Mr Ruto. Their failure to co-operate with ICC will bring a tonne of bricks on Kenya’s head.

Counsellor, search your conscience.

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