Uhuru Kenyatta keeps Kenyans guessing on Hague trip

With about 72 hours to the ICC status conference on his case, it was not clear on Saturday whether President Uhuru Kenyatta will travel to The Hague.

Trial Chamber V (B) on September 30 rejected Mr Kenyatta’s request to be excused from the conference and ordered that he attends the session in person on Wednesday.

The judges also threw out his request that the conference be rescheduled as well as his request to attend via a video link.

But hours to the day, the decision whether he would travel to The Hague remains a closely guarded secret only known to a small number of his most trusted advisers and his legal team, which has already left for The Hague.

State House has maintained a studious silence on the matter.

However, a source told the Sunday Nation that the big decision would be made on Monday.

“No direction on whether to go or not… the President is weighing the decision and will unveil it to Parliament,” the source said.

The closest the President has publicly commented on the upcoming conference was on Friday during the funeral of the father of Secretary to Cabinet Francis Kimemia in Nyandarua.

“Hiyo maneno kidogo kidogo munasikia isiwasumbue, tutamaliza,” (You don’t need to worry about this other issue you keep hearing about. We will deal with it,” he told mourners.

The President also sprung a surprise by announcing that he would be addressing a special session of Parliament on Monday — just hours to the day he is required in The Hague.

CAUGHT BY SURPRISE

The announcement appeared to have caught the leadership of Parliament by surprise. Before the announcement, Speaker Justin Muturi had told reporters he would be travelling to Cameroon for a meeting of the Commonwealth Parliamentary Association as some MPs head to The Hague.

National Assembly Majority Leader Aden Duale is in Mecca for the annual Islamic pilgrimage and appeared to be in the dark over the President’s plans when contacted by the Sunday Nation.

Monday is an unusual day for Parliament to meet even when in session, because it is assumed that MPs would either be in their constituencies or travelling back to Nairobi for business which starts on Tuesday.

Jubilee lawmakers who on Friday thronged The Netherlands embassy to get visas to travel to The Hague remained largely in the dark about the President’s plans.

Senate Majority Leader Kithure Kindiki sais that “all critical decisions will be made in due course”.

Meanwhile, Mr Duale was frantically making calls from Saudi Arabia to find out whether the President would be travelling.

Gatundu South MP Moses Kuria who, together with National Assembly Majority Whip Katoo ole Metito, has been mobilising MPs to escort the President to the conference, appeared as much in the dark.

“We are acting on our own but the decision whether or not he goes is the President’s,” said Mr Kuria.

The reason the MPs were trooping to the Dutch embassy for the visas, he said, is because “the nation is on trial”.

“I cannot say whether the President is going or not but this is a trial of our country and we are the representatives of the people.”

A source at the Kenyan embassy in Netherlands said they had not been contacted about the President’s travel plans.

CRISIS MEETINGS

ICC Prosecutor Fatou Bensouda and her predecessor Louis Moreno Ocampo have in the past said President Kenyatta and his Deputy are being charged in their individual capacities.

The President had also said during a televised debate ahead of the 2013 General Election that the case against him was “a personal matter and I intend to continue cooperating with the court”.

Amidst the mystery surrounding his attendance are crisis meetings at State House between the President and his trusted advisers since the Trial Chamber’s decision on September 30.

The meetings have heavily reduced his public appearances, except when he travelled to Nyandarua on Friday. The meetings have been used to discuss the lesser evil between going or not going to The Hague.

If he goes, there are fears he might lose the trust of his African Union colleagues whom he had marshalled to speak out against the ICC in October 2013.

Besides, going will be humiliating for him as he will be the first sitting Head of State to take to the dock at the ICC.

On the other hand, failing to go without valid reasons could give Ms Bensouda the firepower to pursue him.

Some of his advisers also say failing to go would “resuscitate a dying imperial institution”.

Furthermore, his absence will confirm to the Trial Chamber Ms Bensouda’s assertions that President Kenyatta, as the head of government, was the key stumbling block to her investigations into the two cases facing Kenyan leaders.

Much as Ms Bensouda has admitted to having no sufficient evidence to go to trial, she would be too willing to ask the court to issue arrest warrants against Mr Kenyatta. Arrest warrants could curtail his ability to transact international business as Kenya’s Head of State.

In effect, he could become a fugitive like Sudan President Omar al-Bashir who is wanted by the ICC for war crimes, genocide and crimes against humanity allegedly committed in Darfur.

The Hague-based court had issued summons instead of arrest warrants for the Kenyan 2007/2008 post-election violence suspects on condition they continue cooperating with the court and honour summons.

They were also threatened with arrest warrants if they were found to have interfered with witnesses and victims of the post-poll chaos.

Following the 2013 General Election, the court excused President Kenyatta’s and Mr Ruto’s cases from running concurrently.

This was to allow either of the two to be in the country to carry out state functions as president and deputy, respectively.

CONFLICTING VIEWS

Meanwhile, analysts are giving conflicting views amidst the silence from State House.

Dr Washington Makodingo, a governance expert close to the Jubilee government, in an opinion published in the Sunday Nation, strongly argues that President Kenyatta should ignore the summons.

He says that Kenya will lose the respect it commands among its continental peers in case the President honours the summons given that the African Union had advised its leaders against doing so at Kenya’s instigation.

Kenya, argues Dr Makodingo, will be seen as a sellout who will not be trusted in future by other countries.

“It was not Uganda, Sudan or Zimbabwe that called on the AU to take a stand on ICC. It was Kenya that requested, and got an opportunity to present its case against appearance of its leadership at The Hague. Africa agreed. None other than the President himself spoke against the ICC.”

Furthermore, Dr Makodingo argues that the suggestion that ICC might issue arrest warrants against the President were unfounded given Ms Bensouda has already admitted that she lacks evidence to go to trial.

“Some people say that a warrant of arrest could be issued against him. For what? Why would you issue a warrant of arrest against a suspect that the OTP itself has admitted they have no evidence against? What crime is this he would have committed to warrant the judges issuing warrants against him?”

On the other hand, International Commission of Jurists (Kenya) executive director George Kegoro argues that the President has nothing to lose by going to The Hague.

“Kenyatta must feel that with the case against him not particularly prospering, there is no risk even if he goes to The Hague.”

“Within the establishment, some people even feel that the summons to attend court at The Hague is the last act on the part of the court seeking to assert its authority over the president, in a manner that will enable the judges to dismiss the case against him without the court losing face. In this view, therefore, this week’s session is a burial ceremony for the case, one Kenyatta should not miss,” Mr Kegoro argues in another opinion.

In the midst of all this secrecy surrounding the President’s decision, Kenyans may have to wait until Monday when he addresses MPs.