By Bernard Wainaina
CEO,Profarms Consultants®

In Kenya today,your surname is used to project where you belong in the silly game that is Kenyan politics,thanks to one,Stephen Kalonzo Musyoka.

But facts can’t be changed to favour only one side of Kenya’s political divide.

It is a fact that 43% of Kenyan voters who voted for opposition would have liked to see President Kenyatta jailed;it was going to be to their political advantage.

Last week’s withdrawal of charges against
President Uhuru Kenyatta has elicited mixed

For the most part supporters and
opponents alike have welcomed the

Others, particularly self styled
“advocates” for “victims” have argued that the
withdrawal of the case is “unfair” to the

It is important to get facts right without
allowing our biases to blur our thinking.

Unless one argues that the evidence against
Uhuru was beyond reasonable doubt the
argument that withdrawing the case is unfair
to victims does not hold any water.

Unless one had already convicted Uhuru in
their mind, the argument that his “acquittal”
is unfair to the victims is a baseless school of

Uhuru was merely an indictee, not a convict.
The withdrawal is not clemency. ICC
Prosecutor Fatou Bensouda or the ICC judges
did not exercise “an act of mercy” on a

That is a fact.

Technically Bensouda only “withdrew” charges but for all practical purposes this is tantamount to an acquittal.

For at least two or three years, ICC judges,
prosecutors, lawyers, politicians, political
scientists, activists and even ‘Wanjiku’ herself
knew that the ICC Prosecutor did not have a
water tight case against Uhuru.

It was also an open secret that it was a matter of when, not if, Bensouda drops the case against the President.

Unfortunately it took six years for the
prosecution to admit what was obvious to the

It seems the prosecution believed
that buying time would produce the
“evidence” they needed.

Back to the victims of the 2007-08 post-
election violence.

It is ironic that while the “victims” lawyer Fergal Gaynor was lamenting the withdrawal, Internally Displaced Persons in Kenya
were celebrating the news in song and dance.

The IDPs’ reaction to Uhuru’s “acquittal” begs the question, who does Gaynor represent?

Do the IDPs fall under his “victims” list?

Obviously the victims deserve justice.

They have a right to representation, to be heard, compensated, resettled and most importantly, a right to demand that the perpetrators of the violence be brought to

They have a right to a thorough investigation
and a right to closure.

The withdrawal of charges against Uhuru does not in any way hinder realisation of any of these rights.

The rights of the victims can only be assured through proper investigations, genuine prosecution devoid of manipulation, adherence to the rule of law and political goodwill on the part of all internal and external stakeholders.

The 2007-08 post-poll chaos produced three types of victims.

The first set of victims comprises those who
were killed in the skirmishes.

The second set includes the IDPs.

The third team of victims are the sacrificial lambs who were accused wrongly, had their names dragged through the mud even when it was clear the ICC did not have a case against them and have since been acquitted or had
their cases withdrawn.

It is therefore fair to state that both the dead, IDPs and Uhuru are victims of a flawed international justice system at the ICC,The Hague.

All three sets of victims are victims of
justice delayed.

Instead of treating Uhuru as a villain or an ex-convict, the high priests in opposition and politically biased civil right groups who have no clue what it means to be accused wrongly need to put themselves in his boots.

Goalposts were moved several times in his

New accusations were invented every time the
previous ones were defeated.

The judges closed their eyes to former ICC
Prosecutor Luis Moreno Ocampo’s and Bensouda’s incompetence, tardiness and outright politicisation of the judicial system.

The bench and the prosecution seemed to have conspired in delaying the cases unnecessarily.

When there was no direct evidence to
meet the threshold for trying Uhuru, the prosecution chose to turn the Kenyan government into a boogeyman.

Uhuru, who was charged in his personal capacity was expected to use his official position to compel the government to “cooperate” in procuring evidence
against him.

What else is needed to declare him a
victim of a flawed international justice system?

The word “impunity” has been used so liberally in this case.

The concept of impunity is ambiguous and
subject to misuse.

Those against the withdrawal of the case on the basis of fighting impunity are simply
saying Uhuru was actually guilty of all the crimes he was accused of committing.

I held the same belief until I watched this clip of Uhuru calling for peace in 2008 https://

It convinced me that they had picked on the wrong man.

This was a case of a man who abhorred
violence and called on other members of the Kikuyu community to keep their cool.

Forget Bensouda’s threat that she can still prefer new charges against Uhuru.

Kenyans do not have any contract with the ICC to harass Uhuru by any means necessary.

Kenyans want justice for the victims but
that does not mean that it can only be achieved by convicting Uhuru.

The President should now use his position to help the victims by compelling either the Kenyan judicial system or a doubtlessly credible international body to commence proper investigations and charge the real perpetrators of the 2007-08 post-election violence.

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