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BY NGUNJIRI WAMBUGU

A few weeks ago the International Criminal Court
ruled that the Kenyan government must get the
eight witnesses who have changed their minds about
testifying in William Ruto’s case, force them to
testify, and protect them before, during and after
they testify.

In another decision around the same
time the Court ruled that the Kenyan government
must provide the Prosecutor with Uhuru Kenyatta’s
financial records.

In William Ruto’s case the Court has basically shifted
the responsibility of witness protection from itself, to
the Kenyan government; a government that ICC
Prosecutor has on several occasions seemed to imply
has elements within it who have been involved in
witness tampering.

This is also happening despite
the fact that the Court has not acted on many other
witnesses who have changed their minds in the same
way, including some still in the Court’s custody who
the Prosecutor herself has certified as having actually
lied to the Court.

In Uhuru Kenyatta’s case we must assume that the
Court is not on a fishing expedition, and that the ICC
Chief Prosecutor knows exactly what records she
wants, from which institutions, and for what specific
period.

If this is the case the normal procedure is for
the Prosecutor to get the Court to issue a Court
Order, directing the said financial institutions to avail
the records to her.

However the Court has opted to
shift the responsibility of collecting this evidence to
the Kenyan government; a government that the
Prosecutor has on several occasions accused of being
totally uncooperative.

Is the Court looking for a fight with the Kenyan
government?

Is the goal of such a fight to develop
content for the often-repeated narrative by the
Prosecutor and the Victim’s legal counsel that the
Kenyan government, now under the two ICC
suspects, has refused to ‘cooperate’?

Is this to then
become the reason used by the Court to justify why
the two cases collapse?

Kenyans are watching.
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Scenarios

As I watch the on-going maneuvers and counter-
maneuvers at the International Criminal Court I find
myself contemplating what success looks like,
especially to those who still support the ICC process.

According to my Traditional Logic understanding
there are only three possible logical conclusions to
these ICC cases; either ‘All Suspects are Guilty; or ‘No Suspect are guilty’; or
‘Some Suspects are guilty’, which in this case will also mean
‘Some Suspects are not Guilty’; ‘S’ representing Suspects.

In the first scenario all the suspects are found guilty.

Kenyans will then have to go back to the polls
because we will no longer have a President or Deputy
President.

What is the possibility that the Jubilee
support base will sit quietly and let this happen?

Do we have a system in place to set up a transitional
government as we prepare for the elections?

Is there
any possibility that this will happen peacefully?

How will it affect Kenya in the short and long-term?

Will other African states support such a scenario?

Is there any way we can sell this as a win to Kenyans,
Africans, the World? (Am I the only one getting ‘No’
to all these questions?)

Alternatively the two suspects could refuse to accept
the Courts decision and become fugitives.

Then they will never leave power and Kenya will become like
some countries best left unmentioned, and a terrible
place to live in, especially under such circumstances.

In the second scenario all the suspects are found not
guilty.

The ICC will then automatically have lost all
credibility as an international Court of Justice,
especially because of all the hoops it has made
Kenya, Africa and the international community jump
through so far.

Many developed nations, especially
those with the habit of using the Court as a dog-on-a-
leash, would have egg all over their faces.

Some nations have gone to war to stop such humiliation
from attaching to them, so I do not see how this will
happen.

In the third scenario one suspect is found guilty, and
the other is not.

The Court will walk away with hard
lessons learnt, but no fatal injury; Kenyans will see
‘justice’ served on a powerful politician because of
the 2007 PEV, but still have someone at the helm;
Africa will have been chastised for trying to gang up
against the West, with a smile and a wink.

The West will also have learnt the painful lesson of not taking
positions on African political disagreements, but
without the public humiliation.

I suspect scenario three looks like a win-win scenario
especially to the international community, sections of
local and international civil society, and Kenya’s
political opposition.

Unfortunately one of Kenya’s two
most powerful communities socio-politically will be
extremely agitated, to the point of violence (i suspect).

The Jubilee government will also most
probably collapse and we will be back to the first
scenario above.

All possible ICC outcomes are bad especially for Kenya. So why are we still pursuing this?

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