Why ICC lawyer is wrong on Kenyan Judiciary

A week ago, a top city businessman who happens to be a very close friend of mine invited me to the Muthaiga Country Club for lunch. It was my first time at the club, set in the utmost leafy suburbs of Nairobi whose membership consists only of the high and mighty of Kenya's political and business class.

As I enjoyed my lunch and marvelled at the sheer opulence of the club whose entry membership fee I was informed currently stands at slightly Sh1m, I spotted at one corner Fergal Gaynor, the Legal Counsel for Victims in the ICC case against President Uhuru Kenyatta appearing relaxed and apparently enjoying the cool and soothing ambience that the club clearly offers.

Mr Gaynor could easily have passed unnoticed save for the fact that his face is now all too familiar given his forceful and confrontational submissions at the ICC hearings. I forgot all about that encounter until I read his recent written submissions opposing the adjournment of the case against Mr Kenyatta.

In those submissions, Mr Gaynor sees Kenya as a collapsed state with rotten institutions, right from the Executive, the Police and the Judiciary. In an unprecedented attack on the judiciary, he alleges that the punishment for perpetrators of the crime of rape in Kenya is "cutting grass in the afternoon".

He urges the Chamber not to dismiss the case against Mr Kenyatta because that will allegedly put the credibility of the ICC on the line.

As I read this I wondered; will the ICC's credibility not suffer a severer blow were it to continue with a case with no evidence to back it? That the plight and loss the PEV victims suffered is unimaginable has never been in question, but to go forward with a hopelessly flawed case is to create an injustice of monumental proportions that will destroy the ICC.

The tone of his submissions is unnecessarily disrespectful, hostile and the substance evidently inaccurate in many respects. For instance, he takes a swipe at President Uhuru Kenyatta accusing him of hostility towards the ICC and for creating a "climate of fear" which led to the withdrawal of witnesses and unwillingness of individuals with key information regarding the case to come forward. As an individual who has followed the ICC cases closely, I find this allegation not only inaccurate but also misleading given the Prosecutor's admissions that the reason for collapse of the case against Mr Kenyatta is the confession by Key witnesses that they had lied about Mr Kenyatta's alleged role in the PEV.

In the face of the Prosecutor's admissions, it is disingenuous for anyone including the victims' ICC lawyer to attempt to convince Kenyans that these cases should proceed, nevertheless. I am familiar with the workings of the ICC and I know that those discharging their various functions at the Court enjoy generous perks and other benefits.

 

As Mr Gaynor enjoys the comfort and "good life" that Nairobi has to offer, one wonders how many of his victim clients are able to access similar comforts including dining at the Muthaiga Country Club. Is he genuinely in touch with the reality of their status or is he using his privileged, ivory tower position to simply advance a personal agenda?

To me, Mr Gaynor's submissions sound like a hurriedly crafted political statement that a respectable media house would be reticent to publish. One would have expected that a lawyer of his perceived status would be faithful to the letter and spirit of the law.

To suggest that the case against Mr Kenyatta should proceed regardless of the evidence in support thereof; that the ICC would suffer a credibility deficit because of terminating a case whose evidentiary basis has, on the Prosecutor's own admission, collapsed, is, to say the least, preposterous.

As Mr Gaynor rubbishes Kenya's institutions, including the judiciary, I may just want to remind him that our reformed Judiciary is incomparable to the ICC, whose tinkering and fumbling with the Kenyan cases is simply perplexing.

I would further advise him to read the Penal Code and he will promptly notice that the punishment for rapists in Kenya is certainly not "an afternoon session of cutting grass".