Uhuru’s ICC proclamation: Personal rule or the rule of law?

In 1959, Haiti’s President Francois Duvalier, also known as “Papa Doc”, suffered a severe heart attack, which left him unable to work. During his absence, one Clement Barbot acted as president.

When he returned to work, Duvalier accused Barbot of trying to supplant him as president and got him imprisoned. Upon release from prison in 1963, Barbot began plotting to remove Duvalier from office by kidnapping his children, a plot that failed and led to Barbot going into hiding to avoid reprisals.

Duvalier then ordered a nationwide search for Barbot and his co-conspirators but the best efforts failed to find and capture Barbot because, Duvalier was told, Barbot had transformed himself into a black dog.

Duvalier then ordered that all black dogs in Haiti be put to death, in the hope that the allegedly transformed Barbot would be killed as a dog.

While addressing last week’s rally at the Afraha Stadium in Nakuru, President Uhuru Kenyatta announced that his government would not allow one more Kenyan to face a trial before the ICC.

The reason, the President explained, was that his government would not stand by and allow one more compatriot to face the kind of trauma that he and Deputy President, William Ruto, had suffered while facing trial before the court.

LEGAL DIFFICULTY

While the President is to be commended for his concern for the welfare of the people of this country, his pronouncement faces the legal difficulty that Kenya, as a State Party to the Rome Statute, which has also been domesticated as national legislation in the country, is obliged to cooperate if the court seeks to put Kenyan nationals on trial.

At the moment, the ICC seeks to put on trial three Kenyan nationals.

The first is journalist Walter Baraza against whom the ICC issued an arrest warrant in 2013, on charges of witness tampering in the case against Ruto and radio journalist Joshua Sang.

Last year, the court issued a second arrest warrant, again for witness tampering in the same case, this time against a lawyer, Paul Gicheru, and Philip Kipkoech Bett.

Both warrants have remained unexecuted, the first one for three years now.

Attempts by the court to secure the arrest of Baraza have been bogged down by court cases which have culminated in an application before the trial chamber itself, that Baraza should be allowed to appear before the court on a summons, like Ruto and Sang did during their trial, rather than on an arrest warrant. It is not clear if attempts have been made to arrest Gicheru or Bett.

Attorney-General Githu Muigai seemed to give some legal imprimatur to the President’s political declaration when he announced last week that the Kenya Government would now ask the ICC to surrender the investigative material that supports the allegations of witness tampering, so that the country could start national trials against the three suspects.

PERSONAL PREFERENCE

Kenya is acting entirely on the basis of the President’s personal preference which has no regard for the obligations that the law imposes on the country.

The legal position is that unless the charges before the ICC against the three Kenyan nationals are withdrawn, the country has an obligation to arrest and transfer the three to the ICC.

Every day, large numbers of people face criminal charges in our courts. For many of them, this is an unpleasant and traumatising experience.

This situation has, however, never led to a suggestion that we abolish courts of law. The daily functioning of courts of law represents the rule of law at work.

The rule of law establishes predictability in the conduct of public affairs so that no person, however powerful, is allowed to decide whether or not to face charges before a court of law, or choose the court before which to face such charges.

At a practical level, the Attorney-General’s proposal to have the cases of witness tampering tried in Kenya is simply unworkable, and even laughable.

If these cases went on trial, the substance would be to prove the allegation by the prosecutor that witness tampering undermined her case and ultimately led to the termination of charges against the Deputy President.

She would be seeking to prove that Baraza, Gicheru and Bett were acting as the agents, or for the benefit, of the Deputy President, who has all along denied the charges and now asserts that the case against him collapsed because of his innocence.

INDIRECT TRIAL

In effect, a trial for witness tampering would be an indirect trial against Ruto and would be seeking to disprove his assertion of innocence.

Such a trial would be a counter-script to the government’s own assertions as to why the cases failed and simply put, no fairness can be expected in such a trial if it takes place in Nairobi while Jubilee is in power.

Other than the allegations of witness tampering, there have also been the unexplained deaths or disappearances of people connected with investigations into the Ruto case, including Eldoret journalist Nicholas Yebei, whom the Ruto defence claimed was their witness, and who was murdered in early 2015.

Jonah Bureti, also said to be a witness in the Ruto case, disappeared in 2014 never to be seen again.

The similarity between Papa Doc’s proclamation against the dogs of Haiti, and President Kenyatta’s proclamation on the ICC is that both represent the caprice inherent when a country allows personal rule over the rule of law.

The new endeavour for a national trial of the witness tampering cases is a cruel joke.

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