Saturday, January 24, 2015 It is not yet Uhuru for the President over poll violence

 

Fergal Gaynor (left), the lawyer for the 2007-2008 post-election violence victims, and ICC Prosecutor Fatou Bensouda. Indeed, the dropping of Mr Kenyatta’s case and the one against Sudanese President Omar el-Bashir in quick succession should prompt a rethink at the ICC on whether prosecuting a sitting president is tenable. FILE PHOTOS | NATION MEDIA GROUP  

In Summary

• From reading the report, one gets the sense that if Ms Bensouda found life hard under the Kibaki administration, she surely didn’t get much joy dealing with a government led by Mr Kenyatta whom she wanted locked up in jail.
• It is difficult to tell what Fatou Bensouda, who succeeded Louis Moreno-Ocampo as ICC chief prosecutor, brought to this case other than her common lamentations about witness bribery.
• Indeed, the dropping of Mr Kenyatta’s case and the one against Sudanese President Omar el-Bashir in quick succession should prompt a rethink at the ICC on whether prosecuting a sitting president is tenable.

As long as the Uhuru Kenyatta case at the International Criminal Court (ICC) didn’t end with a straight acquittal, it was always going to return to haunt the President some day.

Well, feeling haunted — to the extent of losing sleep, literally — isn’t exactly the emotion you expect the President to have right now, having fought for years to prove his innocence in court and got elected to the highest office in the land in spite of the crimes against humanity charges anyway.

But the quick-fire response by Mr Kenyatta’s legal team to the damning report of the prosecutor’s case released last week at least shows that the President still finds this issue a tad too touchy.

And that is despite the fact that the heavily redacted report, made public following a successful application by the victims’ lawyer in the case, reveals little more than we already knew.

Allegations of a campaign to eliminate key members of the Mungiki gang involved in the planning and execution of killings, rape and displacement of populations in Nakuru and Naivasha have been in public domain since the Waki Commission’s report six years ago.

COMMON LAMENTATIONS

It is difficult to tell what Fatou Bensouda, who succeeded Louis Moreno-Ocampo as ICC chief prosecutor, brought to this case other than her common lamentations about witness bribery.

But the report has no doubt done enough to strengthen Ms Bensouda’s narrative that the government’s non-cooperation and obstructionist tendencies, rather than Mr Kenyatta’s innocence in the post-election violence, made her case to collapse.

The linking of some people at the heart of power with the planning of the violence and later the Mungiki elimination and witness bribery campaign paints the picture of a dangerous investigations jungle in which the prosecutor had absolutely no chance of nailing anyone.

From reading the report, one gets the sense that if Ms Bensouda found life hard under the Kibaki administration, she surely didn’t get much joy dealing with a government led by Mr Kenyatta whom she wanted locked up in jail.

Indeed, the dropping of Mr Kenyatta’s case and the one against Sudanese President Omar el-Bashir in quick succession should prompt a rethink at the ICC on whether prosecuting a sitting president is tenable.

But the fleeting nature of power and the absence of closure in these cases should worry the former indictees as well. Recent events have shown that cases about mass killings and rapes don’t end so fast as long as there are human rights advocates and lawyers willing to seek justice for survivors.

With Kenya particularly having a robust human rights movement, it is unimaginable that Mr Kenyatta’s case will not find its way back in the courts in some form or shape in future.

Otieno Otieno is chief sub-editor, Business Daily. jkotieno@ke.nationmedia.com. @otienootieno

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