Uhuru used the State as a shield against his trial

By GEORGE KEGORO
It was always the understanding that Mr Kenyatta, who faced charges before the International Criminal Court (ICC) long before he became president, was charged in an individual capacity rather than as the President of Kenya. The AU also resolved, once again, that no serving African head of state should stand trial before the ICC and urged President Kenyatta not to attend his trial at The Hague.

    The AU summit raised real fears that unless Kenya was appeased in some way, there may be a mass walkout by the 23 African states that are members of the ICC.
    In particular, there was uncertainty for much of last year, ultimately, about whether or not President Kenyatta would cooperate with the court in his trial.

The ending of the case against President Uhuru Kenyatta provides an opportunity to take stock of the effects it has had on the country.

It was always the understanding that Mr Kenyatta, who faced charges before the International Criminal Court (ICC) long before he became president, was charged in an individual capacity rather than as the President of Kenya.

In the campaign that led him to office, Mr Kenyatta confirmed this understanding when he referred to the case as “a personal challenge” which he would address while also leading the country as president.

The earliest indication that Mr Kenyatta did not intend to keep this promise was provided in his inauguration ceremony on April 9, 2013.

His guest, Uganda’s President Yoweri Museveni, used the opportunity to deliver a scathing attack against the ICC, saluting “Kenyan voters on one other issue – the rejection of the blackmail by the ICC and those who seek to abuse this institution for their own agenda”.

He added that while he had supported the setting up of the ICC, “the usual opinionated and arrogant actors using their careless analysis have distorted the purpose of that institution,” and “are now using it to install leaders of their choice in Africa and eliminate the ones they do not like”.

COOPERATING WITH ICC
President Kenyatta’s own speech contained phrases indicating a tightening of the Kenyan position on the ICC.

At all material times during his campaign, Mr Kenyatta had maintained that Kenya would cooperate with the ICC, or that Kenya took its international obligations seriously, which was understood to be his way of saying he would turn up for his trial even if he became president.

During the inauguration, President Kenyatta, for the first time, introduced conditions on which Kenya would cooperate, saying: “I assure you again that under my leadership, Kenya will strive to uphold our international obligations, so long as these are founded on the well-established principles of mutual respect and reciprocity.”

The new president then began a new discourse which asserted that: “Central to our continued contribution to the international community, will be the understanding that the world is made up of many countries, cultures, political experiences and world-views.

We must remember that no one country or group of countries should have control or monopoly on international institutions or the interpretation of international treaties.

While each state has a right to its own view, it must respect the fact that it holds just one view amongst many in the community of nations.”

DIPLOMATIC SUPPORT
President Kenyatta also erected a pan-African platform, which would prove important in the political fight against his case before the ICC. He promised “nations of Africa and the Africa Union” that “you will continue to have [Kenya as] a partner and an ally.

If we stand together in solidarity I am confident that we will find the strength to thrive and innovate solutions that work for us. Of course, we join you in continuing to insist on relating with all nations as equals, not juniors. As partners, not subordinates.”

As he settled down in office, Kenya’s official diplomacy was taken over by the ICC cases. Deputy President William Ruto soon went on a whirlwind and ill-explained trip to west Africa, which was assumed to be a mission to solicit diplomatic support for the president and himself against the ICC charges.

Two months later, in May, the head of the Kenyan mission to the United Nations, Mr Macharia Kamau, wrote the first of a series of hard-hitting letters to the Security Council, which sought an unconditional termination of the Kenyan cases.

He argued that the results of the March elections were a referendum by Kenyan citizens on the ICC question, and the fact that the country had accepted Mr Kenyatta and Mr Ruto as their “political masters” while they still faced charges before the court was proof that the trials were untenable.

MASS WALKOUT
In October, an extraordinary session of the AU endorsed Kenya’s application to the UN Security Council, for a deferral of the cases for one year.

The AU also resolved, once again, that no serving African head of state should stand trial before the ICC and urged President Kenyatta not to attend his trial at The Hague.

African heads of state accused the ICC of targeting Africa. The evidence of this accusation was the fact that all the cases before the ICC currently are from Africa. President Kenyatta called the court “a painfully farcical pantomime” and “a toy of declining imperial powers”.

While the Security Council ultimately declined the request by Kenya for a deferral, the second time it had done so, and amid threats for a mass pull out from the ICC by African states, the power relations in respect of the ICC eventually shifted.

The AU summit raised real fears that unless Kenya was appeased in some way, there may be a mass walkout by the 23 African states that are members of the ICC.

As a result, the international community now seemed anxious to demonstrate that, contrary to accusation by the AU, the decision not to defer the Kenyan cases was not out of disrespect for the continent but rather, because there was no empirical reason for granting such a deferral.

ASP AGENDA
The last Assembly of States Parties of the ICC, which by coincidence came soon after the Security Council rejection of the Kenyan application, was turned into a forum for appeasing Kenya and the AU.

Very late in the day, an item was inserted in the ASP agenda, allowing a general debate on the AU/ICC relations, in the context of the AU position that no serving head of state should be put on trial.

With the expected start of the Kenyan trials came the additional pressure of how to manage a situation where the President and his deputy would have to be away on trial.

The court had made it clear that it would not allow a situation where both would be at The Hague at the same time — they had a country to run.

While the Assembly declined to support this position, it went out of its way to pass new rules of procedure and evidence, allowing that a person facing trial and “who is required to perform the highest responsibilities of state”, can apply to be excused from continuous presence of his trial.

This was a compromise position. Kenya had wanted the automatic excusal of its two leaders from trial.

Over the last 20 months, Mr Kamau, Attorney General Githu Muigai, and President Kenyatta himself, came to take turns to condemn the ICC and Western countries, seen as its backers, in unrestrained terms.

WITH PRAYER
By contrast Mr Ruto has never attacked the court, and has always spoken of his trial as forming part of tribulations that one faces in life and which, with prayer, he will overcome.

However, the conduct of his case, which went on trial in September 2013, has been dominated by the withdrawal of witnesses, a development the prosecution has blamed on gross interference by elements in Kenya.

As part of this, the ICC issued a warrant of arrest against a Kenyan journalist, Mr Walter Barasa, for witness tampering in his case.

The ICC cases have had a big effect on Kenya’s domestic affairs. First, there is little public information on the cost to the taxpayer of the massive diplomatic effort that Kenya has mounted on the cases since President Kenyatta came to power.

Francis Muthaura, who was once an accused person alongside Mr Kenyatta, said recently that it cost him Sh30 million a month to maintain his case in court.

President Kenyatta, on behalf of whom there have been much bigger arrangements, would only have spent more. The question that now needs to be answered is: how much and who paid?

Secondly, the ICC cases have distracted President Kenyatta personally and his government generally, making it difficult to concentrate on domestic issues.

ICC TRIALS VILIFIED
In particular, there was uncertainty for much of last year, ultimately, about whether or not President Kenyatta would cooperate with the court in his trial.

This reached a crescendo two months ago when President Kenyatta was required to attend court during his last status conference, which made him the first head of state to appear in court as an accused person.

Thirdly, while the 2013 elections were seen as facilitating the realisation of the new Constitution, which came into force fully after those elections, the contradictions inherent in the Kenyatta presidency have eventually sapped the Constitution, preventing its full realisation.

The Kenyatta government never refers to or encourages support for the Constitution, many of whose provisions stood in opposition to his status as accused persons running a country.

Fourthly, a polarised internal situation has heightened after the new government came to office, with support for justice through the ICC characterised as an act of treachery.

President Kenyatta is angry in his speeches and his government has vilified sections of the public that supported the ICC trials.

It is clear that President Kenyatta used the Kenyan state as a shield against his personal trial before the ICC, deploying the country’s diplomatic and financial resources in that direction.

Also, the personal pressure on him resulting from his position as an accused person increased the intolerance of his government, contributing to the shutting of the civil space