“I can only make two conclusions, either they know that he is indisputably guilty and any such attempts will be futile, or there is someone, within the center of power who is deliberately instituting these abortions with a view of getting Uhuru out of the way. That person is not Odinga; he is within the Kibaki circle. A man who knows the law, knows the ICC and knows how to get Uhuru out of the way, in fact, he has.“
If ever, there can be something as strong hitting, is the possibility of an international court slapping you with charges capable of sweeping you, and your ambition into oblivion. Upon the Ocampo announcement, the president as expected addressed the nation. He gave a couple directions, to ensure that the process would not erode Kenya’s sovereignty. He appealed for calm, yet I know just like my naïve instincts told me, he also knew that the announcement was incapable of bringing forth any form of violence.
Knowing that he had become a suspect, Uhuru sought the best of legal representation, in an attempt to exonerate himself. The principal statute in matters of the ICC is the Rome Statute. Quite a liberal document I would say; liberal in that it allows considerable options and time, to a greater extent making the ICC a last resort court.
The fact that the ICC is a political court is not in dispute. Indeed, there is rarely any absolute independence of any court anywhere in the world. The ICC operates in a delicate environment, it has to balance global interests and ensure it remains as independent as possible. In fact, the Rome Statute gives consideration to many other facts other than justice in determining matters before it.
Within the statute, there are provisions say, where the United Nations Security Council, could seek a postponement of the case, if its continuance would risk regional stability. A look at this would suggest therefore, that irrespective of the fact that a crime has been committed, if genuinely, regional stability would be compromised in case the court continues its pursuit of the suspect, a temporary halt would be placed on the process.
Indeed, Kenya appears to have made frantic efforts to try and salvage the infamous Ocampo six. But in my view, these were mistakes, in fact deliberate mistakes to ensure that the Ocampo six find themselves into the ICC.
There came attempts to establish a local tribunal. Well meant efforts by the then Justice minister, Hon. Martha Karua would have ensured that the Ocampo six never set foot in The Hague. This would be a local mechanism. The constitution had not been passed; the judiciary was filled by presidential appointees and susceptible to manipulation, this would have been an easy avenue to being absolved from the blame.
I believe the fear for a local tribunal was fuelled by the independence with which the Waki led inquiry into the post election violence carried its work. Then they undertook a fatal political move to frustrate the formation of the tribunal. Remotely this was founded on an assumption that the ICC would take such a lengthy time.
This assumption was the most naïve of all steps. Looking at the interests that scuttled the dual efforts, both by the minister and Hon. Imanyara, it was a deliberate misleading by the Kenyatta and Ruto cronies or the vocal Mps who shouted, don’t be “Vague go to Hague” were agents of doom, paid to kill the ambitions of these two.
Then Ocampo set in, and the President sent out his deputy to Marshall political support from various African and non African states to compel a postponement through the Security Council. This was a bluff. Having been a foreign Affairs Minister for almost a decade, and a lawyer, Kalonzo certainly knew that his efforts were going to be fruitless, but at least not entirely. He would earn a tag of an ardent protector of the interests of the Ocampo six, but in the ultimate, when the inevitable happened and they would have been hauled into the docks, he would go back to their supporters and seek their votes.
Unfortunately, this will never be for Musyoka. The political clout of the African Union is insignificant to influence the Security Council’s involvement in the Kenyan case. More importantly, most African countries are patronized by western countries to even think of putting their interests on line for Sang or Uhuru.
Then there were the Attorney General applications to seek a referral of the cases to a local mechanism. Before this stab was taken, a Constitution had been passed, in making the applications, the government sought to demonstrate that institutionally, the country had been empowered to have the capacity to handle the cases. This was a departure, a deliberate one, I suppose from the central reason why the ICC had intervened.
The ICC involvement in the Kenyan case was not as a result of inability of our institutional framework to handle the case but manifest unwillingness to investigate the matter. In fact the prosecutor admitted this in the preliminary stages. The Rome statute does not make reference to institutional ability; it requires that a request for a Referral be premised on the government’s showing, that the same people are being investigated, on the same matter. Instead of the government focusing to show what the law requires, it chose to play a different tune that ensured the failure of the appeal.
There then were the crucial appointments of person’s to fill the positions of the Chief Justice, AG and the DPP. Knowing the crucial role these appointees would play, the president mistakenly chose to ignore the Prime Minister. A constitutional storm was kicked off, this saw the president humiliated and he chose to withdraw the names of his appointees.
The naivety of his actions created the greatest grave for Uhuru. It allowed the Judicial Service Commission to come into play and the Judiciary was handed to the independent Hon. Willy Mutunga. This is the greatest grave ever handed to the ambition of Kenyatta. It is greater than the UN Security Council, it rested from the elite a chance of controlling the Judiciary and allowed a real threat to their interests.
Uhuru might have banged the table fighting for Githu Muigai to become an AG. What he did not know is that an Attorney General is but a government advisor whose role in the judiciary has been gravely diminished by the constitution.
When the President directs the AG to form a panel of eminent lawyers to advise the government on what to do, is just but another attempt that is inconsequential.
The clearest of all attempts toensure the four are firmly in the jaws of ICC is the stage managing of this UK dossier on attempts to indict Kibaki once he is out of the office. I don’t know the truth in the claim, but I would opine that the document is a fake, written by agents around presidency. It is likely that the Yatta MP, Kilonzo person could have been handed a handsome consideration to table it in parliament.
My aspersions are built on the fact that, how long it would take the NSIS or the CID to ask Kilonzo where he got the document. He was not handed by an angel; neither did he print it out from a website. Why would a parliamentary committee wish to question the President before questioning the MP who tabled the document in parliament?
My assumptions would be, this is a strategy to divert attention from the misfortune facing Uhuru. And they have almost achieved it. The two, Kibaki and Uhuru draw their support from a similar base. Allowing their supporters to passionately consider the plight of another person, other than Uhuru, diffuses tension and possibly ensures that Uhuru will not be largely missed when he “leaves.” It is inconsequential to Britain whether Kibaki goes to Casablanca after his tenure or if he is taken to ICC for post election violence or if Mutunga starts a case against him for the multiple extra judicial killings on Mungiki under his presidency. It is unlikely that he would be a threat to Britain’s interests and this is out rightly a gimmick.
The tough question therefore becomes why would this move be created. I opine it is intended to create hostility against the ICC by the government for threatening an action against the president hence justify non cooperation by the government and while this may serve to deny access to crucial evidence, it ensures that the ICC will pursue the Kenyan cases at The Hague as referral initiatives are bound to be futile.
And the last nail on Uhuru-Ruto coffin was the promotion of Eugene Wamalwa. This I would look at it from different views.
Certainly, the international community is monitoring developments in Kenya closely. Why would the president move the Minister of justice just days to the setting up of trial chambers in the ICC; this when the last option to salvage the situation would have presented itself.
After the setting up of the trial chamber, Kenya had an opportunity to petition for a referral. I believe this would have been possible save for this deliberate abortion by the reshuffle. The reshuffle serves to cement the impression that the government is determined to scuttle the process by placing allies in key institutions. This after the ICC kept complaining of the frustration by the government. This act, assures the suspects one thing, a place in the ICC.
On the other hand, which wisdom is there in the placing of the ambitious Wamalwa to head the Justice Ministry? Certainly Wamalwa knows that he can be a great beneficiary of the Uhuru-Ruto exit. He only needs to keep appearing with them in public rallies and using his key position to slow down government quests.
Then the inconsequential GEMA get together which resolved to collect 2 million signatures to push for a postponement. Again this can be construed as whooping of ethnic emotions, which construction I believe would be true. What is GEMA, it is neither the government, not party to the suit and not a friend of the court. Whoever advised Uhuru to go to Limuru has a single agenda, to make him sink as possible into the ICC den.
Why these series of multiple mistakes and guffaws? Why would a government miss so many opportunities to salvage its sons if it truly intends to. All the key institutions are in the hands of Kibaki Allies. The police, the NSIS, the CID, the AG and what have you. Why would these institutions be so reluctant to help Uhuru salvage his shot at the presidency? Why would Uhuru be in such multiple mistakes when he is surrounded by advisers.
I can only make two conclusions, either they know that he is indisputably guilty and any such attempts will be futile, or there is someone, within the center of power who is deliberately instituting these abortions with a view of getting Uhuru out of the way. That person is not Odinga; he is within the Kibaki circle. A man who knows the law, knows the ICC and knows how to get Uhuru out of the way, in fact, he has.
If I were Uhuru, I would relook at my trusted sympathizers. It could be a tale of, “kikulacho ki nguoni”