Uhuru Kenyatta summons a diversionary tactic by ICC

The counsel for victims at the International Criminal Court (ICC), as I have argued elsewhere before, has overstepped his mandate by insisting on the continuation of the case against President Uhuru Kenyatta when the evidentiary foundations of that trial have clearly collapsed.

My position was somewhat vindicated on Friday when the judges trying President Kenyatta in a decision denying requests to reply to certain filings including one by the victims appeared to be reprimanding the lawyer by cautioning parties against making “inflammatory unsupported or tangential allegations”.

One of the meanings of the word “tangential” is divergent or digressive.

Soon after the judges issued this caution, they issued another decision, which in my view, exhibited the very same divergent and digressive conduct for which they had just accused the victims’ lawyer.

The judges summoned President Kenyatta to attend a Status Conference slated for October 8, 2014.

NEED NOT ATTEND

I consider this decision to summon Mr Kenyatta divergent and digressive for a number of reasons.

Status conferences at the Court are forums where procedural, house-keeping matters are discussed. The ICC has consistently maintained that a suspect or accused person need not attend those sessions.

The appearance of President Kenyatta at the Court will not advance any objective underpinned by the Rome Statute or indeed the rules or regulations of the Court.

Mr Kenyatta will not be taking the dock as suggested by a section of the media given the admission by the prosecutor that the case is not proceeding to trial. Indeed, the Court in that same decision vacated the trial date of October 9, 2014.

We do not expect that President Kenyatta would be required to utter a word during the Status Conference as he is ably represented by counsel.

Nor is it expected that he would be questioned about alleged non-cooperation by the Government of Kenya with the Court.

The Court knows the difference between Mr Kenyatta as President and Mr Kenyatta as an accused.

His appearance would be in the second capacity and, therefore, he is not expected to be questioned about co-operation matters as this will be directed at the Attorney-General.

SINISTER

This summons will, therefore, not serve to advance anything lawfully and legitimately linked to the case. That is why I see the summons as sinister and meant to achieve a tangential objective.

Indeed the decision summoning the President does not provide any reasons only stating that “given the critical juncture of the proceedings and the matters to be considered, the accused is required to be present at the Status Conference”.

The one thing that has clearly emerged from these cases is that the ICC has been thoroughly embarrassed by the sheer ineptitude and incompetence that characterised its investigation of the PEV crimes.

Prosecutor Fatou Bensouda’s recent admissions on the lack of evidence, the confession by several witnesses that they were literally bribed to give false evidence and the earlier collapse of the cases against Francis Muthaura, Henry Kosgey and Major General Ali, have cumulatively left the court with a huge credibility dent that would be hard to repair.

For a court that many Kenyans now associate more with side shows than the proper discharge of its statutory mandate, the summons to have President Kenyatta attend the October 8 Status Conference is not a big surprise.

DIVERT ATTENTION

With the prosecutor’s embarrassing pronouncements, the imminent collapse of the case against Mr Kenyatta and the bribery allegations by prosecution witnesses against court officials, there is sufficient incentive for the court to divert attention away from the self-inflicted humiliation that it has gone through.

And nothing could be more opportune than to summon a sitting head of state. That way the court hopes to rebrand and re-assert itself at the same time attempt to paint a picture of inviolability of its powers.

Some may cheer at this act of self-bravado and for a moment forget the wild goose chase that the court has subjected Kenyans to for the last five years.

But for those of us who understand the deception that this court represents, the summons against Mr Kenyatta are a clear attempt to divert attention from a fundamentally flawed agenda of pursuing suspects for political rather than evidentiary reasons.

Having failed to marshal any credible evidence against Mr Kenyatta a time has come for the Court to now spare Kenyans its litany of shenanigans and let go.

Kabue Thumi is an advocate of the High Court of Kenya and an expert in international law. [email protected]