Was President summoned with hope he fails to appear?

The requirement of personal attendance by the President at the recent ICC status conference has left most observers more puzzled than was the case at the time of the unusual decision to summon him.

The session ended in an anti-climax, with the presiding judge simply thanking the participants and announcing the end of the proceedings.

No decision and no indication as to the way forward. Nothing arose in the course of the proceedings suggesting that the President’s appearance — indeed, even by video-link — was necessary.

Perhaps embarrassed by the fact that he had actually responded to the “summons”, the court allocated him 10 minutes at the end of the proceedings in the event he wanted to speak and with a reminder that he was under no obligation to say anything.

Mr Kenyatta, and rightly so in my view, politely declined the offer.

There was no indication of what the court expected him to address in a session dealing with a simple issue of adjournment, which his lawyers have been addressing in greater detail and in his absence for close to a year now.

Again, logically, if personal attendance was related to arguments on non co-operation by the State, the President would have been required on the first day when those issues were canvassed.

By excluding him from that first session, the court was implicitly clarifying the distinction between the State and the accused — one that the OTP and victims’ counsel have consistently tried to blur.

The agenda for the second day was simply one of deciding whether the matter should be adjourned any further, making it difficult to comprehend why Mr Kenyatta’s attendance was so important.

A TRAP

That is why there is significant merit in the belief that the attendance order was potentially a trap in anticipation of non-compliance.

The proceedings at the court for the last one year have turned out to be a circus. The current prosecutor inherited a poorly investigated, half-baked case from her predecessor — a skunk she has been struggling to get rid of .

Despite repeated reminders from the court that the rules require her to withdraw a case that does not attain the threshold of a viable prosecution, she clearly does not want to take blame and forever bear the stain of having taken the decision to withdraw such an important case. She is looking for a fall guy.

The Government of Kenya appears to be an ideal target for the skunk, but Attorney-General Githu Muigai will hear none of that and has put up a valiant fight.

She now turns back to the court, targeting the skunk at it — by placing the judges in the uncomfortable scenario of either terminating the case or having to make the decision to possibly postpone it sine die ( indefinitely) — a scenario that would contradict the court’s own decision early in the year granting an adjournment for a strictly limited period of six months as it managed co-operation between the OTP and the government.

SHIFT BLAME

In these circumstances, it was clearly convenient for the court to shift the blame to Mr Kenyatta in the event he failed to attend and warrants or other adverse orders were issued.

Such a result would have pleased the ICC immensely.

Two little-noticed observations by the OTP and the victim’s lawyer speak volumes as to the anticipated non-attendance of Mr Kenyatta.

The victim’s lawyer, apparently privy to some facts unknown to the public, alluded to the Bashir warrants situation, well out of context.

The brief allusion provided a hint as to what was anticipated.

Indeed, this aspect of his submissions coupled with a rant in relation to interference with witnesses, bribery, etc just minutes after he and the OTP had answered in the negative the Chamber’s question as to whether there is any evidence that the accused had personally obstructed or interfered with investigations, demonstrate that there was a pre-prepared political script in anticipation of non-attendance.

Another observation relates to the OTP suggestion that the adjournment could be adjusted to coincide with the next General Election.

This proposal is reminiscent of the clamour by certain players, including foreign states and a section of Kenyan civil society, to use the ICC case to influence the direction of the last elections.

A request for adjournment pegged to the elections or even an indefinite adjournment are consistent with a political objective to the case.

Indeed, a warrant of arrest for non-attendance would have been a hurdle-free and painless route to obtaining the result.

The ICC may never disclose the real objective of the summons. We can only speculate.

Mukwita is former editor-in-chief of the Zambian Daily Mail, and a leading media personality in Southern Africa.