If Uhuru doesn’t go to The Hague...

By STEVE MKAWALE

NAIROBI, KENYA: Kenyans are debating on possible consequences should President Uhuru skip his trial at The Hague which begins in February.

The world too is watching as Uhuru seeks to extricate himself from the dubious distinction as the first serving president to be in The Hague’s dock, through the African Union’s petition to the United Nations Security Council.

The question many Kenyans are mulling over is whether the President can decide to skip his trial hearings for serious crimes against humanity, beginning with the latest push to have the trials delayed. On this, he appears to have it easy because the ICC moved the trials to February after the prosecution agreed to an application by Uhuru. The President has been under intense pressure from political leaders urging him not to ‘lower himself’ by standing in the dock of ‘a foreign court’. The AU has also asked Uhuru not to appear at the trial and instead wait for the Security Council to defer the cases.

The hard stance taken by AU, Jubilee politicians and some religious leaders on one hand, and International Criminal Court backed by some NGOs and opposition leaders on the other, has raised the stakes.

This has put Uhuru at a crossroad where he is being forced to either honour the trial or heed his peers’ advice and stay away from The Hague.

Should he take the latter path, Uhuru would most likely be slapped with a warrant of arrest like that hanging on the neck of Sudanese leader Omar Al-Bashir. This would then require that States signatory to the Rome Statute help arrest him when he travels out. However, it is unlikely Uhuru would be at risk of being arrested by AU member states given the support they have given him so far.

This justifies the fears by some who feel it is just a matter of time before the ICC finds a reason to issue a warrant against Uhuru and Deputy President William Ruto. To them the two leaders have been pushed against the wall because the ICC ‘has rejected most of the applications the defence made’.

Jubilee Senator Liz Chelule (nominated) who recently travelled to The Hague to show solidarity with the deputy president said there is all likelihood for the court to issue a warrant of arrest if the President fails to honour the November 12 date.

Real danger

She said the ICC cases would eventually hurt the Kenyan economy. The senator compared the ICC troubles for Kenya to the days former President Moi’s government was coming under pressure from western powers.

“If the West messed up former president Moi’s economy and he wasn’t not an ICC suspect, they can be worse this time,” the senator said.

The danger of Kenya’s economy taking a beating if a warrant is issued against its leaders is real as evidenced by Sudan where President Omar al Bashir is wanted by the ICC. Sudan’s economy has suffered since the ICC issued a warrant against Bashir for crimes allegedly committed in Darfur.

Failure by the President to attend the trial would likely further chill relations with traditional allies in the West, including the US, whose officials have repeatedly called for an end to impunity for political violence in Kenya.

‘It is impunity’

On his summer trip to Africa, US President Obama bypassed Kenya, his father’s homeland, because it was considered improper and perhaps embarrassing for him to be hosted there by men accused of crimes against humanity.

Ken Wafula, a human rights activist based in the Rift Valley says if the court issues a warrant of arrest against President Kenyatta and his deputy, it will make their travel beyond sympathetic states in Africa difficult and, importantly, China, would be restricted.

“They may face individual economic sanctions. All of this risks turning Kenya into a fringe state similar to Sudan under President Omar Al Bashir, who has ignored his indictment at the ICC for more than four years,” he said.

But all this is increasingly irrelevant to Kenya’s leaders, and its people, says Ngunjiri Wambugu, director of a Nairobi think tank, who supported the move to withdraw the country from the Hague court.

“I think Kenyans are not really that worried about international law at the moment,” he says.

“The conversation that’s going on here is that, yes, there may be no justice for the victims of the post-election violence, but if we pursued that justice would we compromise where we are now, in peace?” Mr Wambugu asks, and answering his own question offers that, “Yes, it is impunity and yes, it is unjust, but is it so important to go back six years and go into all that again? Or should we close that chapter and make it a memory that we don’t forget, but we don’t dwell on dangerously, either?”

Mr Paul Masese, a director with the Center for Enhancing Democracy and Good Governance says that besides requesting for a warrant of arrest, there was a possibility the prosecutor will request for the detention of the Kenya leaders.

“AG has already stated how a warrant will be dealt with. That Kenyan judiciary has the final say is of course not good news for ICC prosecutor who now knows that Kenya is not cooperating with the international court,” says Masese.

The human rights activist argues that what is ahead is that there is all likelihood for the prosecutor to ask for detention of all suspects.

“In the history of ICC, no other suspect has ever been allowed to be a “day scholar”.  It is even worse when the prosecutor argues that they have to be detained because Kenya is not cooperating, he added.

Other analysts argue that Kenya had already turned its back on the ICC when the National Assembly and Senate voted for withdrawal from the Rome Statue.

“They set the stage for some level of non-cooperation at some point,” says Mwalimu Mati, director of Mars Group, a Kenyan governance watchdog.

“The vote was a way for them to create a situation where they can say that the Kenyan people, through their representatives at the National Assembly, no longer want anything to do with the ICC,” Mr Mati said in a recent interview.

“If the warrant is issued, it would make the survival of two individuals a matter that would have an impact on an entire country.”

The ICC has charged President Kenyatta and Ruto with crimes against humanity for their alleged roles in the 2007-08 post election violence that killed more than 1,000 people. Both have denied the charges.

Majority of Kenyans feel the UNSC should take into account threats to peace or an act of aggression-likely to transpire in the light of the prevailing and continuing terrorist threat existing in the Horn of and eastern Africa.

Recently after the terrorist attack at Nairobi’s Westgate shopping mall, Kenya’s UN ambassador Macharia Kamau said the council should also take into account the need to prevent “an aggravation” to peace and security in Kenya and neighbouring countries.