THE ICC, UHURU BLUFF AND COUNTER BLUFF

Kenyan President Uhuru Kenyatta’s appearance at the International Criminal Court last week was the latest instalment in an intricate game of geopolitics that has been playing itself out since he became a person of interest for the court.

In post-election violence in 2007 at least 1000 were killed in ethnic fuelled fighting, some of which Kenyatta is being accused of orchestrating. Kenyatta has continued to protest his innocence.

In writing this I am at a bit of a disadvantage because Uhuru has not yet appeared before the court. But the wider issues of what this means for us remain relevant regardless of what transpired during appearance at the ICC on Thursday.

Last week’s visit to the Hague was for two status conferences to determine whether Kenyatta’s trial should go on or not. The ICC prosecutor also accuses the Kenyan government of refusing to release critical information that is critical for its case against Uhuru, a claim that was examined last week.

By the time Uhuru was charged for his alleged crimes in January 2012, he was not yet the president of Kenya and even attended pre-trial hearings in the Hague.

Uhuru has maintained that the case was an attempt to trample on Kenya’s sovereignty and and his campaign team used this tack very effectively to turn his presidential campaign around in 2012.

Once he assumed the presidency his case at the ICC took on a different dimension.

"Intense backroom manoeuvring managed several diplomatic coups among which were the African Union resolution that no African leader should be tried while still in office and a thawing of attitudes towards Uhuru by western capitals, which had previously warned of grave consequences if the Kenyan people voted him in as President...

Maybe no one among the Kenyan elite thought it wold come to this.

A Kenyan commission into the post-election violence recommended a tribunal be set up to try the perpetrators of the violence. When parliament shot down the recommendation and Nairobi sat on its hands, the commission’s findings – including a sealed envelope with the names of suspects, was forwarded to the Hague.

The prosecutor’s case against Uhuru is seen to be floundering. They have complained that the Kenyan government is being uncooperative, while a few witnesses have recanted their testimonies.

Some observers argue that the latest summons of the Kenyan President the court hoped would see him hiding behind the AU resolution, automatically triggering the issuing of an arrest warrant. By turning up at the Hague, Uhuru called the Court’s bluff and the dismissal of his case some say is imminent.

Be that as it may, the case speaks to two critical issues that bedevil this continent.

The baggage that we carry from a colonial era that ended more than a half a century continue to stalk our politics. The issues of self-determination and a recognition that while we might have attained political independence, western economies continue to jerk our strings, will continue to be a constant theme on the continent; the rabbit in the hat our politicians can conjure to distract the masses from the real issues.

And also among the real issues the notion that we all deserve justice, from the least to the mightiest in the land. Thousands remain displaced in Kenya, because to try and resolve their issues will throw up some uncomfortable truths that the political elite do not have the stomach to stand.

The first will be resolved when we can fulfil our promise as a continent – a promise many argue is deliberately stalled by external players, and determine our own destiny or at least negotiate as partners with the more developed nations.

The second’s resolution is related to the first. That is when the continent's people will be empowered, partly through improved economic standing to demand their own rights, demands that the politicians will be sensitive to because the length of their tenure will depend on it and not the advantage of incumbency.

Clearly this will take time.

"As it stands this case sets an important precedent.That international justice will reach beyond national borders in pursuit of justice. Of course the argument will always be that this justice is being applied selectively, but it also means that impunity could become a thing of the past or at least human rights abusers will at least be more discrete. Small consolation for the down trodden masses but progress none the less...

It is also a sad testament to the weakness of our own political classes. Uhuru need not have been forced to go through this whole circus if Kenya had constituted a credible tribunal to pursue suspects.

We watch with bated breath as to what will happen to Uhuru and his deputy William Ruto, also in the Hague facing charges related to atrocities committed during that moment of madness in Kenya’s history, as this case will irreversibly change the way we think about international justice.