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By Bernard Wainaina
CEO,Profarms Consultants®

“Politics is theatre. It doesn’t matter if you
win. You make a statement. You say, ‘I’m here,
pay attention to me’,” said the American
politician, Harvey Milk.

The unnecessary theatrics of handing over power and resuming office – “a temporary abdication,”showed just how well the Kenyatta administration understands this.

In fact, he and Deputy President William Ruto
have skillfully managed to turn their
indictments for crimes against humanity to
their political advantage, easily slipping into
the role of victim.

Every time one of them has been threatened
with prosecution for economic crimes or
political violence, they have mastered the art
of using their ethnic communities as a shield.

So effectively, they paint themselves, and
their communities, as victims and generate
political heat to prevent the cases ever being
judged on their merits.

Failing that, there is always the time-honoured practice of bribing, intimidating and even murdering witnesses(this is not new in these cases,that’s why ICC has a witness protection programme and many other judiciaries all over the world).

The tough realities of trying to prosecute some of the most powerful people on the planet have
demonstrated that the court does not operate in a political vacuum.

In the cases before the ICC, we have seen elements of all these strategies.

First was the sustained campaign to paint the court as anti-African and to transform the duo into the victims of “the toy of declining
imperial powers” as Uhuru described the court at the African Union.

This is the “our community is being targeted” argument.

That African nations form the largest single group of signatories to the Rome Statute, that the Prosecutor is African and that the many of cases, including, arguably, the Kenyan ones,
were referred to the ICC by African nations are facts that are not allowed to stand in the way of this performance of collective victimhood.

Then there was the attempt to get the cases either postponed or dropped altogether.

From the UN to the AU to the Assembly of State Parties, the government declared that the cases were no longer the “personal challenges” of presidential candidates, but national security issues.

The prosecutions threatened the fragile peace between the Kikuyu and Kalenjin communities who, though reconciled, were apparently raring to have another go at each other’s throat.

It was only the promise of impunity that kept
them apart, or so the story went.

Then last week, Uhuru Kenyatta finally made history.

On Monday, he became the first sitting President to hand over power to his deputy and two days later, paradoxically was the first sitting President to ever appear before the
International Criminal Court.

On his return, he was treated to a hero’s welcome with thousands thronging the streets, egged on by his administration.

When an extraordinary AU summit embraced the position that no African head of state
should be prosecuted while still in office, the Kenyans wasted no time declaring victory against imperialists.

The show must go on!

Alongside all these, strange things were happening with the witnesses.

Some died, others had their identities revealed, still more begun to withdraw, some turned out to be liars, yet others had sudden attacks of conscience and claimed to have been enticed to lie on the stand through promises of relocation to Europe.

Reports begun to emerge of cartels hunting down and threatening or bribing witnesses.

The prosecutor was complaining of non-
cooperation from the government, which was
accused of withholding evidence that became
increasingly crucial as witnesses dropped out.

Soon, Fatou Bensouda was admitting that she no longer had enough evidence to sustain a conviction.

But the show must go on, she argued, saying it would be a mistake to reward the government’s
intransigence.

Many Uhuru supporters took to claiming that in fact there was no evidence at all and that he had been framed.

The OTP, at the last status conference, summarised its evidence, including witnesses and phone records linking Uhuru to the
financing of Mungiki to carry out attacks.

So where do we stand today?

As a court of last resort, it was indeed the failure to set up a credible local tribunal to try the elite that forced the ICC to act.

But, for such a landmark case,the first attempt to hold a sitting head of state to account, the trials have revealed the weakness at the heart of the international justice system and just how
vulnerable it is to both political pressure and
governmental manipulation.

Ironically, it is to escape these very factors that many put their faith in the ICC in the first place, viewing it as a panacea for weak
local courts unable to hold powerful elites to
account.

The arguments made inside the court are just as likely to be aimed at political
constituencies as at the judges, and political theatrics are just as likely to affect the court’s ability to effectively try cases.

This raises difficult questions.

How to ensure cooperation from the very governments whose leaders it is trying to prosecute?

How to protect the court’s credibility and to avoid miring it in the muck of local and international politics?

These and other issues will continue to engage those working to make real the promise of accountability long after the circus has left town.

“The African Story as told by Africans”.©African News Digest®

“The African Story as told by Africans”.©African News Digest®

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