Duale: The ICC conspiracy and how UhuRuto played hardball

The Western nations tried to short-circuit the process by coming directly to me, through their ambassadors and even visiting foreign ministers. But my answer was the same - help us get our leaders out of the ICC, and then we can talk about what you want.

Two diplomats were a pain in Jubilee's neck during that time. One was Dr Christian Turner, then British High Commissioner, and Margit Hellwig-Bottes, the German ambassador. They had openly supported Raila's bid in 2013, and I remember seeing them in Bomas when results were being tallied behaving as an extension of Raila agents.

Turner had showed up in 2012 and immediately sided with Raila, giving us the impression that the British had already picked a side. We didn't like him much, and I think, it took the British longer to realise that he was useless in pushing through the defence agreement.

For Margit, her government realised what had happened and quickly deployed her to Tanzania. But then Tanzanian President Jakaya Kikwete rejected her. No explanation was given, but her conduct in Kenya was not a secret. She went back to Germany.

The office of the Attorney General, led by Prof Githu Muigai, an accomplished lawyer and legal scholar, who spoke thoughtfully, had given all its resources to defending the country, and by extension the President and his deputy at the ICC.

All these efforts had pushed ICC prosecutor Fatou Bensouda into a corner. She was having difficulties getting additional evidence to sustain a case against Uhuru and Ruto, because her predecessor Luis Moreno-Ocampo had gone for the politics, and not the law-he was furthering an injustice. Ocampo left the ICC in June 2012 after nine years as prosecutor. Bensouda was the new sheriff in town to prosecute the Kenyan cases.

Bensouda's only ace was to gamble that Uhuru was likely to reject summonses to court. Therefore, when the ICC called him for a status conference on 8 October 2014 to discuss the details of a trial, Uhuru's lawyers pleaded to appear via video link. The request was flatly rejected. The hope by the foreign powers behind the ICC case was for Uhuru to refuse to appear, and then have an arrest warrant issued. Some top security chiefs were asking Uhuru to defy the court.

"You will embarrass the country. You will be the first sitting Head of State to appear at the ICC. Don't go," they said. Uhuru listened as they spoke and I could see he was pained, conflicted. He needed a way out quickly. Someone in government came up with a bold idea and shared it with President Uhuru:

Why don't you hand over the presidency to your deputy, go and appear before the ICC in your personal capacity, then come back to power? The Deputy President is constitutionally expected to take over from the President whenever he is absent. Therefore, there was really no difference. But the President loved the idea, and I must credit him for respecting the summons, because, if he hadn't, he would have lent credence to the baseless conspiracy that was the ICC case.

"Let's do it," the President said.

Uhuru Kenyatta (right) at the ICC in the Hague, Netherlands. [File, Standard]

They prevailed upon Uhuru to call the hardliners to order. He did very publicly. Ruto's case was also a government priority, and no resource would be spared in getting him off the hook, it was said. "As long as my brother is still in that imperial court, we are not done," Uhuru used to remind everyone, at every opportunity.'

The Western nations had calculated that if they let Uhuru go, they could prosecute Ruto. They had mistakenly assumed that political betrayal would take priority. However, I think Ruto was saved by the fact that he had security of tenure, and he still had enormous political capital with the opposition running riot in the country, pushing Uhuru into a corner. Uhuru could not afford to dump Ruto before 2017.

Ruto's trial at The Hague opened on 10 September 2013. All through, I used to sneak in and out of the country to go visit him at The Hague, where he was holed up with Charles Keter at his side. The case trudged on with breaks until 10 September 2015, when the prosecution closed its case.

In November 2015, we descended on The Hague for the Assembly of State Parties, the oversight body of the ICC. Before that, I had travelled to London in the United Kingdom for a meeting in the House of Commons.

"Mheshimiwa, I am sorry to call you, because I know you have a packed afternoon. But the Foreign and Commonwealth Office wants an urgent meeting with you," then Kenyan High Commissioner to the UK, Lazarus Amayo, told me.

"Who wants to meet me? I have a flight at 8pm. It is now 4pm. I am not sure I can squeeze in a meeting right now," I said. "Please Mheshimiwa, just a quick short meeting. He just heard that you were around and he wants to talk to you," Amayo pleaded.

I rushed to the Kenyan High Commission and together we drove to the Foreign and Commonwealth Office, where I met the UK Minister for Africa. There were two other gentlemen in the room. We engaged in the usual diplomatic banter, support for the civil society, and UK relationship with Kenya. Then he quickly pivoted to the defence agreement.

"What's happening to our defence agreement?" he asked. "You know, Mr Minister, I will be frank with you. Perhaps your ambassador has not made it clear to you about how serious the cases against our leaders at the ICC are. Nothing will move until those cases are dropped," I said.

"Is that the position of the Kenyan government?" he asked, and I could read a threat in his tone.

"No. I am telling you the reality. I have that document on my desk. But if Ruto is still being pursued by the ICC, let me assure you, if I bring it for the vote right now, it will be rejected. My colleagues in Parliament do not want to see anything to do with you people. As far as we are concerned, your government is behind the Kenyan cases at the ICC," I said, my eyes fixed on his.

He was unbalanced for a moment, and quickly recovered. "Okay, we'll see what to do about that," he said.

Former British High Commissioner in Kenya Christine Turner. [Jenipher Wachie, Standard]

On 6 April 2016, the court declared a mistrial and vacated the charges against Ruto and Sang. All the diplomatic efforts had borne fruit. The URP wing exhaled. Uhuru breathed a sigh of relief. As soon as the court dropped the charges, Hailey called me and Solicitor-General Njee Muturi to a short meeting at the Serena Hotel.

"You promised that as soon as the cases are dropped, you will do your part. When are you doing it?" he asked.

"I am working on it," I said, trying not to be specific.

"You know, you are going to face challenges with my government," Hailey said.

I did not get the import of that statement at first. When the meeting ended, I called a close friend who works at the UN and told him what Hailey had said.

"Listen, that is a threat. When a diplomat tells you that, he is saying that you may face denial of visa, and even sanctions. You are a Muslim. Go figure how bad it can get with their allies and their borderless war on terror. Give them what they want," my friend, an old hand in international politics and diplomacy, counselled.

I called Njee and relayed the message. Njee and I went to State House to see the President.

On the day that I brought the defence agreement to the House, British officials came to the National Assembly and sat in the public gallery to follow the debate. I whispered to the MPs that if they opposed the agreement, they should know that they will be marked for life.

"You will never get a British visa," I exaggerated.

The joke scared some, but Midiwo was unmoved. I called the High Commissioner again.

"Please call Raila Odinga and tell him to rein in the Minority Leader, Midiwo, or else he will scuttle this thing," I said. A few moments later, Midiwo came to me, fuming.

Raila had asked him to drop his opposition to the defence agreement.

"I didn't know this thing was that serious," a baffled but intimidated Midiwo said.

"Yes, it is a life and death matter for some of us," I said.

On 1 September 2016, the defence agreement was passed, and Hailey fired a statement celebrating the ratification. I had survived. The ICC fightback was now complete.