Kenyatta is free at last, but ICC poised to haunt Jubilee power

The move by the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, to drop all charges against Kenya’s President Uhuru Kenyatta marks the collapse of the most high-profile case in the court’s history.

The immediate implications of the collapse of the case are patently clear.

At a personal level, after four years in the corridors of ICC justice, Kenyatta has finally cleared his name and that of his family — Kenya’s most powerful. At a national level, he has resolved Kenya’s diplomatic and sovereignty dilemmas posed by the possible trial of its leader in a foreign jurisdiction.

Despite the triumph, the ICC — like the Mau Mau, which was the crucible of the Kenyan nation in the 20th century — will continue to be the anvil on which the country’s future will be forged in the 21st century and beyond.

In regard to the future of international justice, the collapse of Kenyatta’s case is the most ignominious failure of a case since the court was set up over a decade ago.

It is, no doubt, a most devastating blow to the credibility of the court as the supreme symbol of international justice. With the collapse the case, ICC has even a harder task reversing the now widely held view in Africa, as elsewhere, that it is an instrument of advancing the hegemony of powerful nations.

'COMPLIANCE STRATEGY'

It will have difficulties countering the accusations of racial profiling and unfairly targeting of the African continent and its leaders. From a policy perspective, the collapse of the Kenyatta case signifies the triumph of the ‘compliance strategy’ that he has pursued since December 15, 2010 when Ocampo listed him among other five Kenyans he accused of crimes against humanity arising from the 2008 post-election violence.

Kenyatta had the option of pursuing the “Omar el-Bashir” strategy of ‘non-compliance’, which would have entailed openly defying the ICC, refusing to attend its hearings and pulling Kenya out of the Court. After his 2013 victory, the Kenyan President faced increasing pressure to take the Sudan route.

This would have triggered an automatic warrant of arrest and possible sanctions against the country. However, with a majority in Parliament, a weak and divided opposition and favorable global geo-politics following the rise of China as a new economic and political power, Kenyatta would have hobbled on as a ‘fugitive president” till 2017 and possibly 2022.

But Kenya would have almost certainly joined Zimbabwe in the West’s list of ‘rogue’ states. Against many odds, Kenyatta affirmed his unswerving commitment to the rule of law. His strategic decision to hand-over power to his Deputy, William Ruto, for 48 hours to attend the status hearing at The Hague in October 2014 is the most recent example of his resolve to confront the dilemma of his role as the custodian of Kenya’s sovereignty and his own personal responsibility to adhere to the rule of law.

NEW CROSSROADS

Strategically speaking, Bensouda’s decision has brought Kenya to a new crossroads, with far-reaching implications for the future of power.

Obviously, the President is now a free man. But with a parallel case still going on at the ICC against his friend, long-standing political ally and co-principal in Jubilee, Deputy President William Ruto, Kenyatta’s triumph is only half-victory.

Kenyatta can only leave the strategy table at his own peril. His political destiny and that of his Jubilee Alliance are inextricably tied to the future moves and strategies to champion the case facing Ruto and his co-accused, Joshua arap Sang.

Inadvertently, Bensouda may have cut one of the most critical ties that bind the ruling Jubilee coalition. Because of this, Kenyatta could not pop the Champaign on the ‘Good Friday’ when the news came from The Hague.

Kenyatta now faces shifting political scenarios poised to shape his power and legacy. The dropping of the cases against Kenyatta has spared Kenya of the “doomsday scenario” where a “double conviction” of the President and his deputy would have led to a political decapitation of the Kenyan state.

The move has also raised the stakes for the best case scenario for Jubilee: A “double acquittal” where the President and his deputy finally leave the court as free men. Jubilee stalwarts will most likely work to maximize the chances for this scenario. The wind is in their favour because the ICC’s prosecution is skiing on a very thin ice of evidence and the court’s credibility has been badly stained by the collapse of the Kenyatta case.

WORST NIGHTMARE

Actualizing this scenario is the best guarantee for Jubilee power and the triumph of the regime in the 2017 and 2022 general elections.

However, the collapse of the case against Kenyatta has also thrust to the fore what is potentially Jubilee’s “Armageddon scenario” and the alliance’s worst nightmare: a “split ruling” where the President is now free, but his deputy is convicted. This scenario has the potential of rekindling the polarising public debate on “who fixed Ruto” in the ICC case, and will most likely become part of the political menu of the challengers of Jubilee’s power.

Never before has President Kenyatta been called upon to show camaraderie and to tap into the most exquisite of political strategies to rally Jubilee and the country behind his deputy and his community.

Failure to manage the politics relating to the remaining Kenyan case at the ICC can prove extremely expensive.

Any sign of laxity or celebrations in the Mount Kenya region could re-radicalise politics in the Rift Valley and whip ‘victimhood’ politics to a dangerous peak. It could also turn ethnic relations in parts of the Rift Valley extremely volatile, potentially leading to the collapse of the Kalenjin-Kikuyu détente as pivot of Jubilee power. Kenyatta is free at last, but the ICC is poised to haunt Jubilee power.

Professor Peter Kagwanja is the Chief Executive of the Africa Policy Institute and former Government Adviser.