The 48 finest hours that secured Uhuru Kenyatta’s power and legacy

The International Criminal Court’s status conference is now behind us.

But, in the next three weeks, President Uhuru Kenyatta faces one of the most crucial moments of his life.

Certainly, the judicious decision to sign away his presidential powers for 48 hours to his Deputy, William Ruto, in a tactical move to allow him to attend the court and safeguard’s Kenya’s sovereignty, has fortified his tenure and legacy, revitalised his coalition and weakened the opposition.

The move denied the prosecution any excuse to issue a warrant of arrest. This would have practically turned Kenyatta into a fugitive and Kenya a pariah state.

The future of Jubilee power looks certain. This is irrespective of which way the judges decide to go — to either terminate the case, enter a “not guilty” verdict, adjourn trial indefinitely, temporarily withdraw charges, refer Kenya to the Assembly of States or a special mix.

A “guilty” verdict is not an option Judges Kuniko Ozaki (Japan), Geoffrey Henderson (Trinidad and Tobago) and Robert Femr (the Czech Republic) are considering in their decision on the fate of the Kenyatta case.

But the future of the international court is not as certain. Scanning the horizons, all indications are that the court has run out of aces, with its best move as returning a not guilty verdict or terminating the trial.

The court is doomed if the judges gamble on an alternative pathway!

The Kenyatta case is the most politically explosive ever to have reached trial at the ICC.

As such, it is testing the court’s claims to universality, impartiality, and professionalism in a public and palpable way.

In the 21st century, the ICC has become the pivot of Africa-West political and diplomatic relations, eclipsing European colonialism and post-colonial dictatorships which fed the embers of nationalism in the 20th century.

CASE HAD COLLAPSED

Long before Kenyatta was elected Kenya’s President in 2013, the case against him had manifestly collapsed.

And in early 2013, the chief prosecutor, Fatou Bensouda, publicly admitted that she had no evidence to prosecute Kenyatta — and even dropped charges against his co-accused, Francis Muthaura.

However, upon Kenyatta’s election, the prosecution shrewdly embarked on a frenetic search for “fresh evidence” as a subterfuge to mount a new case against Kenyatta, cooked up and grafted on the already disintegrating one.

In its substance, the “new” case has two interlinked planks: That the Kenya Government is guilty of not cooperating with the ICC in further investigations against Mr Kenyatta.

As Head of State, Kenyatta carries the burden of the government’s non-cooperation and, as the accused, he is guilty of alleged “obstruction of justice”.

The “new case” is a legal facade hoisted on the court’s wilful confusion between the Kenyan State and the accused.

Philosophically, this confusion taps into the famous declaration by the French monarch, Louis XIV, that: l’état c’est moi (I am the State/the State is me).

This was long before the French revolution gave birth to democracy and the principle of separation of powers.

The recent order on Kenyatta to appear in person was designed as a smoking-gun proof that, as the Head of State, he was solely responsible for Kenya’s non-cooperation, obstruction and subversion of justice.

The consequences of non-appearance would have been dire. It would have armed the prosecution with the excuse it needed to issue an arrest warrant against Kenyatta, and to willy-nilly refer Kenya to the Assembly of States for non-compliance.

At home, this would have set off a campaign to impeach him, perhaps resulting in a classic court-engineered coup d’état in the high noon.

ON THIN ICE

After Kenyatta’s appearance, the ICC is skiing on thin ice, and down the cliff.

Legally, its impartiality and universality have come under sharp scrutiny, with growing fears that the court is kowtowing to the interests of certain powerful states keen on putting Kenyatta’s case permanently on cold storage.

Related to this, there is a creeping feeling in Africa that parochial ethnic and racial sensibility is quickly becoming the greatest threat to the future of ICC.

Ideologically, the case appears to be driven by two Britons who have raised the stakes by mounting a strong media and cyber campaign against the termination of Kenyatta’s case.

Foremost is the British attorney and lead prosecutor in Kenyatta’s case, Benjamin Gumpert, who is pushing for adjournment of the case indefinitely “until Kenya fully cooperates with investigations”.

The other is Fergal Gaynor, an Irish barrister who lays claim to “representing 20,000 victims in the Kenyatta case,” whose “hang-them-high” approach to justice disregards the principle that the accused also deserve justice.

'ICC MAY BE DOOMED'

Outside the court, British legal activists and scholars have hit the highroad, drumming support for the prosecution’s case that the judges should not set Kenyatta free.

One Luke Moffett, a law lecturer in International Criminal Justice at Queen’s University, Belfast, is sensationally arguing that “If Uhuru Kenyatta’s trial falls apart, the ICC may be doomed.”

This partisanship is widening the Africa-West fault-line over the ICC.

Uganda’s President Yoweri Museveni has described the ICC as “a biased instrument of post-colonial hegemony” and called on Africa to “urgently reconsider its engagement with ICC on account of its humiliating treatment of the continent”.

Positions in Kenya are also hardening. “We are tired of the West’s judicial colonialism spearheaded by the ICC. The real target is our sovereignty. The recent attempt to parade and humiliate our President is part of this game”, said the former Security Minister and the Government’s Chief Whip, Katoo Ole Metito, upon return from The Hague.

Diplomatically, Kenyatta’s assertive African-centred diplomacy is beginning to sway the opinions of the prime movers of global power, particularly in Washington.

Kenyatta has astutely exploited his 48 finest hours with ICC to tap into the veins of Kenyan nationalism to outwit the opposition.

Once more, the ICC has thrown a lifeline to Jubilee and weakened potential support to the opposition’s referendum push.

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