Wins and losses for duo in Hague cases

President Uhuru Kenyatta and his deputy William Ruto are still just as shackled to the International Crimininal Court cases 100 days into their government as they were months before the last elections.

While they overcame the ICC-related obstacles to win the presidential race in March, how they handle the charges they face at The Hague could define their term at the helm.

Though their legal teams are fighting the court battle of their lives, their clients, since winning the election, have chosen to advance the quest for their freedom from the Luis Moreno-Ocampo-initiated charges on both continental and international stages.

Insiders at The Hague say the Kenya case will be pursued to the most logical end as it is a demonstration of the relevance of the ICC, which has faced its fair share of criticism.

Despite facing charges on crimes against humanity, President Kenyatta and Mr Ruto contested and won the election against a backdrop of warnings from the United States and a couple of European Union member states.

A senior US diplomat on African Affairs warned that “choices come with consequences”, while the UK and key EU member states said they would only have “essential relations” with an Uhuru-led government.

The diplomatic community was left in a quandary. There was apprehension that their respective countries’ determination to nurture democracy, end impunity and bring to justice perpetrators of crimes against humanity in the world would be thrown to the wind if they stood arm-in-arm with the Jubilee government.

“The policy of my government remains that we do not have contact with ICC indictees, unless it is essential,” said British High Commissioner Christian Turner in February this year.
This triggered the fear that the West could come up with sanctions against Kenya — a tool mostly used against nations that are perceived to be “enemies” of the US and the EU. In fact, the phrase “essential contact” was coined by the US to define its relations with some Middle Eastern countries that, while it was necessary to relate with, Uncle Sam believed could not serve Washington’s interests in the region.

In the face of this position by the West, the Uhuru administration turned East, especially towards China and Japan, for aid, trade and diplomatic relations.

In so doing, the Jubilee government thrust itself into the “voluble war” between China and the West over Africa, a continent seen by both as a growing platform for trade, resources and development aid.

Recently, speaking on African soil, US President Barack Obama cautioned African countries against relations with the East. Without mentioning names, President Obama described the Sino-Africa relations as a one-way street spiced with exploitative trade tricks.

“When we look at what other countries are doing in Africa, I think our only advice is ‘make sure it’s a good deal for Africa’,” he said.

“Somebody says they want to come build something here. Are they hiring African workers? Somebody says ‘we want to help you develop your natural resources’. How much of the money is staying in Africa? The profits stay there, the jobs stay there and not much stays in Africa.”

It is significant to note that President Obama skipped Kenya during his second trip to Africa, stating that the “timing was not right for me as President of the United States to be visiting Kenya when those issues need to be worked on.”

The “issues” he was talking about were the fact that his would-be-hosts, President Kenyatta and Mr Ruto, are about to face trial at The Hague, together with former Kass FM broadcaster Joshua arap Sang.

As it plays down President Obama’s exclusion of his father’s homeland from his African itinerary, the Jubilee government has been waging a tough battle at the UN headquarters in New York, requesting the world body’s Security Council to terminate the Kenya cases.

In May,  Kenya’s Permanent Representative to the UN Macharia Kamau  sent a letter to the UN Security Council requesting the ICC to terminate the cases against the President and his deputy, arguing the trials were a threat to Kenya’s national security and undermined the country’s sovereignty.

Mr Kamau also said ICC should leave Kenya alone to allow Kenyatta and Ruto to lead the new government.

The letter was, however, disowned by Mr Ruto. His lawyer, Karim Khan, said it neither represented government policy nor his client’s personal wishes, adding that Ruto and President Kenyatta had made a commitment to honour international institutions and also cooperate with The Hague-based court to clear their names.

In Africa, the Jubilee government has been lobbying the continent’s leaders to put up a spirited fight to either terminate the ICC cases or have them tried by the African Court of Justice.

President Yoweri Museveni of Uganda has particularly been vocal on this, warning that the two principals could be placed under custody if they travel to The Hague for the trials.

Speaking at the end of an Inter-Governmental Authority on Development (IGAD) heads-of-state summit in Ethiopia at the end of May, Museveni cautioned: “ICC should tell us if they plan to detain Mr Kenyatta. They should give us an explanation if he is going to come back to Kenya because the information we are receiving is different.”

He went on: “We will not agree to have him attend if the intention is to detain him. If we don’t have a clear picture of the plans by the international court, then it means our relations with them will be soured. They should treat us with dignity.”

This campaign has coincided with accusations by ICC prosecutor Fatou Bensouda that the Jubilee government has not been cooperating with investigators. Bensouda has gone on to warn that she would take her complaints to the UN Security Council for action.

On a brighter side, lawyers for President Kenyatta and Mr Ruto have had their first scores — succeeding in their push for the Trial Chamber judges to push forward the dates of the beginning of the trials.

The Deputy President will be the first in the dock on September 10 while President Uhuru Kenyatta will make his appearance on November 12.

Mr Ruto’s defence team also succeeded in convincing the Trial Chamber judges to allow their client to attend the opening and closing sessions of all prayers in the case.

However, a decision of the ICC’s 18 judges on Monday to veto Mr Ruto’s wishes to have the opening of his trial here in Kenya or Tanzania could set a precedent for the trial of President Kenyatta.

The ICC judges said security, the cost of conducting the trial away from The Hague and the impact to witnesses were the reason they declined to allow shifting of the trial venue to another location.

It was the prayers of the two principals that they be spared flights to The Hague and be tried in Kenya or neighbouring Tanzania, but it appears they will have to fly to The Netherlands.

For the two principals, the first 100 days in office have been of prayers, both in the legal and spiritual sense.