Kenya's President Uhuru Kenyatta has been summoned to appear personally for a status conference at the International Criminal Court (ICC) on October 8, 2014 http://www.bbc.com/news/world-africa-29288981 . The President is facing charges of crimes against humanity stemming from the 2007/2008 Post Election Violence (PEV) in Kenya that resulted in thousands of deaths and mass internal displacements. The case against the president has practically collapsed on its own weight because no credible evidence of real probative value exists to sustain a full trial let alone a conviction. ICC Chief Prosecutor Fatou Bensoudah has admitted as much. And that is what makes the latest summons by the court all that much more curious.
A status Conference is exactly that, the court is appraised of progress made by parties in resolving outstanding issues before a trial can start. This is common and generally boring in nature except when the defendant is President Uhuru Kenyatta of Kenya. By all accounts the case against the president has crumbled in much the same way same accusations did against former police commissioner Hussein Ali and former head of public service Ambassador Francis Muthaura for lack of evidence. All three men were accused of crimes connived by a "common plan"- the significance of which is that evidence or lack thereof against Ali and Hussein would apply against Kenyatta and yet the prosecution exercised prosecutorial discretion to proceed against Kenyatta and not the other two. Why? Because the court is politicized and Kenyatta would be a bigger trophy for the prosecution but this is a double edged sword on both sides; Bensouda is desperate to nail Kenyatta because the credibility of the court and indeed the prosecution's legacy is on the line while in Kenya, a conviction of Kenyatta would negatively tip the country's political and security pendulums.
So what is Kenyatta to do? Of course the President should go to The Hague as required this week and I believe he will, he has no choice but to attend because he falls under the jurisdiction of the court. If he declines to attend he will automatically join the ranks of Sudan's Omar Bashir and other fugitives from justice, something I don't think Kenyatta himself or the country as a whole has an appetite for. The president is keenly aware of this notwithstanding the raucous jeering against the ICC by many in the country and Africa as a whole. The 2013 African Union resolution barring seating president from complying with ICC orders is nonbinding and has absolutely zero effect on the court's functions and the president, if he relies on that resolution and refuses to obey the orders, it would be to his own detriment.
The question now is what is the likely outcome of the proceedings against the president this coming week?
Full exoneration- This is the most desirable and probable outcome from the court this week. Courts are designed to hold cases in abeyance for a reason but in this case the prosecutor has requested an indefinite hold and I just don't see how that is permissible especially in light of the fact that similar charges were dropped against the president's co-accused several years ago, for lack of evidence. Putting the case in limbo is not the court's best interests. The issue then becomes, shouldn't President Kenyatta be afforded equal access and protection of the law no less than his co-accused? After all equal justice under law demands so. For this and other considerations, I can see the court exercising its discretion and dismissing charges against the president. I give this option a 70% probability.
Sanctions against Kenyatta- If the prosecution can persuade the court that the President or those under his command are hindering the court's process and therefore frustrating justice, the court will issue specific orders to the president commanding him to cooperate or risk arrest. I don't see how the prosecution will pull this off given the fact that they have had ample opportunity way before Kenyatta became president to gather all the evidence they needed. The prosecution via Louis Moreno Ocampo told the court four year ago it had a water tight iron clad case and now we know it was a mirage on their part, can they then flip the tables and deflect the blame on Kenyatta? Of course they can, that is what they have actually done- the question is, will the prosecution bait the court with that argument? If they do, then yes, Kenyatta will be put on notice. To me this is a 25% probability proposition.
Arrest- Of course not many people believe this will happen much less want it to happen but there is always that sliver chance of the absurd. If Bensouda and company can show the court and prove positive evidence that President Kenyatta has personally obstructed justice via personal interference and apply for his detention to facilitate investigations, then yes, the court might entertain the idea of holding the president at The Hague while investigations are carried out but that is a remote possibility, 5% in my books.
So, this will be a pivotal week and it remains to be seen how it will play out but I'm betting this issue will be put to rest sooner rather than later. Stay tuned….
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