The activities that surrounded President Uhuru Kenyatta’s recent appearance before the International Criminal Court at The Hague, including the demonstrations outside the court and the road show when he returned home, are reminiscent of an incident on May 16, 1995 when about 4,000 morans invaded the High Court in Nairobi, where the powerful Minister for Local Government, Mr William Ntimama, had been summoned for an intended private prosecution, for incitement to violence.
The prosecution had been brought by Ngengi Muigai, a cousin of President Kenyatta, for alleged hateful utterances that Ntimama had made against the Kikuyu community.
In court, the morans became a spectacle, similar to what was witnessed outside the courthouse at The Hague recently.
They overran the small courtroom, bringing bedlam, and preventing the presiding magistrate, Uniter Kidullah, from accessing her own court.
Police eventually forcefully cleared the way for the magistrate, and then had to remove people who had occupied her court seat.
The proceedings that followed were, nevertheless, brief. The then Deputy Public Prosecutor, Bernard Chunga, entered a nolle prosequi, thus terminating the case against Ntimama.
An appeal to the High Court by Mbuthi Gathenji, Ngengi’s lawyer, was dismissed.
Gathenji then started pressing for the release of the record of proceedings in the High Court, about which there was some reluctance, without which an intended further appeal to the Court of Appeal was not possible.
For his troubles, Gathenji was arrested, while asleep in his house at night, and taken to his office, where all material relating to his work on political violence since 1992, was confiscated at gunpoint.
The lawyer was to spend five days in custody and was then charged with publishing alarming statements.
The “alarming statements” were a compilation by his law firm of witness accounts on the violence, part of the preparations on behalf of a client, for a possible court case on the violence.
Ntimama’s appearance in court was meant to be the high point in the search for accountability for political violence that had become a characteristic of Kenya’s experiences since the resumption of multiparty politics.
The case against him was grounded in the work of a broad coalition of actors, including the Nakuru chapter of the Catholic Justice and Peace Commission, the National Council of Churches, the Law Society of Kenya and individuals of goodwill, like Ngengi.
With one simple political act, the establishment halted the endeavour to prosecute Ntimama, who thus never faced justice for his alleged crimes.
Having committed serious personal and professional violations against Gathenji, who was only acting in his professional capacity as an advocate, the government also brought a spurious charge against him, and managed to characterise his creditable work as a crime.
This early episode sent a resolute message that future attempts to bring accountability for political violence would not be tolerated.
Thereafter, in 1998, President Moi appointed the Akiwumi commission of inquiry into the violence, raising fresh hope that, at last, justice for the victims was possible.
However, Moi shelved the report of the commission, a brave job by Justices Akilano Akiwumi and E.O. Bosire, and only released it in 2002, at the end of his rule, under the compulsion of a court order, thus negating possible accountability.
Whatever their shortcomings, the cases at the ICC against Kenyatta and his deputy, William Ruto, they are the first real attempt to bring accountability for the political violence that has blighted Kenya for two decades.
Kenyatta and Ruto are the first politicians to face a criminal trial for violence, something Ntimama fought off in 1995.
However, like Ntimama before him, Kenyatta has learnt that an effective way of resisting a prosecution is to politicise it, and to vilify those who support the trial.
While the physical distance limits chances of Kenyatta’s supporters invading the courthouse at The Hague, like Ntimama’s did, the politicisation of the trial, which has produced a false nationalism that equates Kenyatta’s personal problems with an attack on Kenya’s sovereignty, is an effective way of killing local support for accountability.
The recent roadshow is an activity in a campaign, since 2010, towards trifling the ICC cases, and which has only intensified since Kenyatta and Ruto took control of the state as President and Deputy.
Other than being accused persons, Kenyatta and Ruto also occupy official positions and, together, the two constitute the ultimate leadership of Kenya. In their official capacities, they bear a responsibility on rule of law matters.
However, in a copybook of the Ntimama behaviour before, the President’s conduct towards his trial manifestly conflicts with, and grossly undermines, his official rule of law obligations, making it difficult to attain a reasoned national discussion on responses to the post-election violence, and the genuine concerns of victims of the crimes that underlie his prosecution.
From his lofty position as President, the choices Kenyatta has made in defending himself in a personal case undermine the rule of law in Kenya, and also conflict with the country’s longstanding international commitments.
It seems that the tenuous argument that Kenya’s sovereignty is under attack, has been sufficient to make everybody stand aside and watch privatisation of the state to benefit the defence of a personal case.
To defend the rulers, Jubilee has opened a new chapter of fascism in Kenya, one where fabricated nationalist arguments, such as those that led to the false prosecution of Gathenji in 1995, are used to justify the choices that have been made.
If citizens cannot see through this, and resist it, they will remain deserving recipients of the violence that politicians periodically dole out.