To redeem itself ICC should drop cases

Two things stood out at the ICC status conference on October 8. First, the court’s demand that President Kenyatta attend in person was utterly unnecessary; perhaps even mischievous.

It was intended to humiliate the person, or provide an opportunity to issue a warrant of arrest for non-compliance with a ridiculous, ill-intentioned court demand.

The second thing that stood out was the new spirited onslaught, not against Uhuru Kenyatta the person, but against the government he heads.

It is the Kenya Government that is now the target of vitriol, and although the prosecutor admitted they had no evidence that the President had in any way directed his government not to cooperate with the ICC, nonetheless the case must somehow be kept alive, indefinitely, without regard to the rights of an accused person, until and unless the “government obstructing the prosecution” is brought into compliance to the satisfaction of the office of the prosecutor (OTP).

This is preposterous, particularly in view of the admission by the prosecution that there is no guarantee the material sought will necessarily support the prosecution’s case.

In essence, the OTP is asking the ICC judges to maintain the case against President Kenyatta until some highly speculative events that might salvage their case, occur.

One such event is the possibility that the Assembly of State Parties where Kenya is a significant member, may in the course of time, endorse the prosecution’s position that Kenya has failed in its obligations to the ICC.

There is no denying that there is a huge structural challenge for the OTP in the Rome Statute.

Expecting a government to enthusiastically give up incriminating evidence about its own Head of State is exceedingly naive.

The other possible event the prosecutor specifically speculated upon was the next General Election in Kenya. Under another regime in which Mr Kenyata will, presumably, not be so powerful, there is hope that such a regime will be more agreeable to handing him, and all the evidence against him, over to the ICC.

Thus the underlying logic presented to the judges is that one of the solutions to the huge structural challenge faced by the OTP in pursuading governments to hand over evidence against their own officials is for the ICC to ignore the rights of an accused person for a speedy trial and wait indefinitely for a regime change.

REGIME CHANGE

In effect, the prosecutor at this particular status conference presented the ICC legal process as hostage to, and ultimately a tool for, political intervention and regime change; a serious charge that has already been made against the ICC.

If the judges share in this logic, then they will not dismiss President Kenyatta’s case.

They will, instead, grant the indefinite adjournment as requested by the prosecution and thereby confirm that the true purpose of the ICC is not justice and the rule of law at the international level but mere political meddling in Africa clothed in legal finesse.

Mr Ngugi is a consultant in public affairs and policy ([email protected])