SEPTEMBER 5, 2015
Deputy President William Ruto and his defence team at The Hague. FILE PHOTO | ICC
Kenya has come to another moment when reversals in court affecting the ongoing cases before the International Criminal Court have translated into rising political temperatures in the country.
This time round, the reversal has to do with the decision of the trial chamber in the case against Deputy President William Ruto that testimonies recorded by the prosecution from witnesses who thereafter repudiated them and declined to testify against the Deputy President, would still be admitted under a relatively new procedure that was introduced in 2013.
Kenya played a leading role in the process that led to the introduction of this new rule, which came into force alongside another rule which allows a trial court to excuse from continuous presence in court a person facing charges before the ICC who also occupies a high position of state in his country.
The application of this second rule has not been a problem for Kenya. It has allowed the Deputy President, who would otherwise have been confined to The Hague as his trial goes on, the freedom to attend to his duties in Kenya, and has therefore significantly softened the effect of the ICC cases on the Kenyan leadership.
It is the second rule, the one that the trial chamber relied on to admit the testimony of witnesses that had since refused to testify for the prosecution, which has proved problematic for the country’s political leadership.
The reaction to this setback is following what has become a well-beaten path in Kenya.
The lawyers have been instructed to appeal against this decision and it is expected that they will do so with the usual decorum that characterises their performance before the judges of the ICC.
Outside of court, the political machinery has been engaged at two levels. Locally in the country, media activities condemning the ICC, once again, have already commenced and are likely to continue in the coming days.
There was to be a major prayer rally in the Rift Valley to pray for the Deputy President. Not to leave room for misunderstanding, the President’s wing of the Jubilee coalition has also spoken, expressing solidarity with the Deputy President.
It is expected that this show of support will continue and that it will be particularly robust now that the commitment of the President’s wing towards saving his deputy has openly come under question within the coalition.
At the international level, Kenya’s representative to the Permanent Mission to the UN, Ambassador Macharia Kamau, ever a willing runner in these types of situations, has already written to the president of the Assembly of State Parties, expressing Kenya’s displeasure at the interpretation of the rule in question.
Macharia has stated Kenya’s understanding that the rule would only apply for future cases and would not be applied in the country’s cases which were already under way when the rule was approved.
This method of doing things has been rewarding for Kenya. Faced with the prospect of the President and Deputy having to sit at The Hague for their trials, Kenya pushed for the rule change that now allows Ruto to stay away from his trial and which his co-accused, the less-fortunate Joshua Sang, cannot do.
Perceiving the admission of the recanted statements as a portentous development in the Ruto case, Kenya is expected to move the world again, and is unlikely to stop until it has its way.
One of the answers to the political mobilisation against the decision of the trial chamber is that this being a judicial matter, it is not amenable to discussion by the ASP and parties must address any grievances through the judicial process.
It is unlikely that the reason why Kenya is pursuing a political solution is because the country does not know when a political resolution applies and when a judicial decision should be sought.
Rather, it is because one of the most effective methods of attacking judicial decisions is by using political rather than judicial weapons. The true target of the ongoing agitation is not ASP to which it is directed, but the appeals chamber which will hear the appeal by the defence for a reversal of the order admitting the statements in question.
In the early period in the Kenyan cases, the pre-trial chamber used to go out of its way to require both Kenyatta and Ruto to behave in a particular way when back in the country from the court, as a way of preserving the integrity of the cases against them.
Particularly there was a time they would be required not to engage in political mobilisation against the court and not to share a public platform.
Somewhere down the line, the court stopped concerning itself with activities outside the courtroom even though these were designed to apply political pressure on ongoing cases, thus allowing the Kenyan defendants the freedom to mobilise against the court in the streets, while keeping the semblance of respect for the judicial process when in court.
The failure of the ICC to sanction this duplicitous conduct is a failure of the international justice project and is something that both the presidency and the ASP will need to address.
It would seem that in the eyes of Jubilee, no decision other than an acquittal will ever constitute justice in the Ruto case. This attitude is highly disrespectful of victims of the post-election violence, and is one about which the victims’ lawyer should complain to the court.
It demonstrates the rank arrogance and sense of entitlement on which Jubilee is erected, and the challenge that lies ahead in reclaiming the country.
gkegoro@gmail.com
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