7 years a slave: Why Bensouda must drop case against Ruto, Sang

That would be an apt movie to describe Kenya’s unfortunate dalliance with the International Criminal Court (ICC). As a country, we have lost seven years that would have been better directed at nation building, cohesion and national reconciliation.

The seven years represent an unforgivable atrocity on the victims of post-election violence by engaging them on the false trail of the wrong suspects. For the wrong suspects, the personal anguish, questions from mothers, fathers, spouses and children as well as the burden of crimes they know they did not commit are all enough to qualify as their darkest seven years.

This is why Fatou Bensouda’s dropping of the charges against President Uhuru Kenyatta this week is both sweet music and a sombre dirge. Sweet music because those of us who have been opposed to the ICC process feel vindicated. A dirge because the way the ICC has conducted the Kenyan case will mark the death of international criminal justice system the way we know it today.

Bensouda’s eventual fall in the Kenyatta case is not just a personal loss for her. It is a serious indictment on the entire process. In the first instance, the case should not have passed the admissibility test. There is no denying the fact that as Kenyans, we were collectively seized with 60 days of madness after the 2007 general election.

It is not arguable that we killed each other, destroyed property and rendered each other homeless. However, the way we pulled ourselves from that abyss and the relative scale of our madness vis-à-vis other countries whose situations are before the ICC clearly manifest that the Kenyan case should not have been taken up by the court. Even more ominous are countries whose situation the ICC continues to turn a blind eye on.

Secondly, the way Louis Moreno Ocampo approached the investigations call for serious introspection on the side of the Assembly of State Parties (ASP).

What on earth would justify a court of the magnitude of the ICC, the apex body in the global criminal justice architecture, outsourcing the entire investigation from a bunch of rag tag civil society organisations? What would have led the OTP to trust a motley crew of starving and broke NGOs, keen to pass on any output no matter how unreliable, in the name of a paycheck?

Why wouldn’t Ocampo and Bensouda heed the obvious political partisanship of these civil society types? Did it not ring a bell when one of the commissioners with an institution whose evidence was relied on heavily by the OTP would transition to be a Senator on the ticket of the opposition party? In a nutshell, the collapse of the Kenyatta case is a serious indictment of the OTP and its investigative processes.

Thirdly, the case has proved that the ICC’s witness management system is nothing but a racketeering syndicate involving folks at the ICC and professional witnesses-for-hire who see in the ICC a bottomless pocket they can draw from any time and their once in a lifetime opportunity of living large in foreign countries. The less said about that the better.

Now here comes the troublesome bit. The admissibility failure is true for both the Kenyatta case and the Ruto-Sang case. The shoddy investigations were a common script. The witnesses-for-hire were rife in the Kenyatta case but even more prevalent and shameless in the Ruto-Sang case. So when all these three were seriously indicted by the collapse of the Kenyatta case this week, common sense, natural justice and even the Rome Statute would dictate that Bensouda drops the case against Ruto and Sang. But would she do it? I doubt.

She needs to resuscitate the dying Ruto-Sang case to keep herself in employment. She needs to flog the dead horse to avoid having the principal shareholders of the ICC from the European Union putting a stop order on the monthly remittances. The ASP needs to weigh in on her if only to salvage any scintilla of reputation left with this court. Someone has to quickly save the ICC from the self destructing ambitions of the Office of The Prosecutor.

Time has come for the African Union to put its claws where its mouth is. It is dangerous to issue threats you cannot carry through. As they say, a tiger does not proclaim its “tigritude”, it pounces. The AU needs to make a gigantic pounce.

William Ruto is the President’s principal assistant. He is also the immediate former acting President of the Republic of Kenya, a role he will keep playing from time to time. If the ICC does not drop the case against him, it is time for the AU to shout “Deuces!” to the ICC.