Why Uhuru’s ICC case should be declared a mistrial at once

Since early 2011, the International Criminal Court (ICC) cases against three Kenyans has refused to leave news headlines. It is easy to explain this. The cases are most high-profile because the personalities on the dock are of high standing in society.

Two, the nature of the crimes being prosecuted – war crimes, genocide and crimes against humanity – are equally earth-shaking.

The mere idea of a popularly elected, sitting president together with his deputy in the dock in a foreign country for allegedly committing such crimes against their fellow citizens is most upsetting to their supporters.

In law, though, things are different, for the doctrine of the rule of law dictates that all are equal. The process of finding the President and his deputy innocent or guilty must, therefore, be allowed to run its full course.

What should worry observers though is that for almost four years, what started as a serious process is turning out to be a charade. It all started with the infamous Waki Report on who bore the greatest responsibility for the post-election violence.

That report pointed fingers at several high-profile Kenyans from across the political and ethnic divide, among them Mr Kenyatta and Mr William Ruto.


How the cases ended up at the ICC instead of being prosecuted here is a familiar story to many readers. Equally familiar is the narrative of how the suspects’ list shrunk from the initial six to three (including journalist Joshua Sang) today.

Of the three cases, however, it is the President’s which is turning out to be the most interesting. So far, and unlike Mr Ruto’s and Mr Sang’s cases, no witness has taken the stand to tell the world what exactly Mr Kenyatta did to deserve prosecution.

This situation can be explained by a number of factors. One: For reasons only known to himself, ICC’s first prosecutor, Mr Luis Moreno-Ocampo did a shoddy job at the investigations stage. He didn’t take his time to dig beyond the Waki Report, among others, on which he anchored his prima facie case.

The inference is that Mr Ocampo may have picked the wrong people. Advocates of this view rely on the release of three of the six suspects in the original list (Maj-Gen (Rtd) Hussein Ali, Mr Henry Kosgey and Mr Francis Muthaura) for lack of evidence.

Be that as it may, there comes a time when justice has to be delivered. In the case of the President, that time is nigh. For prosecutor Fatou Bensouda to continue insisting the President has a case to answer and therefore must remain in the dock without any substantive grounds amounts to violation of the same human rights the international court is established to protect.


Kenya is a voluntary member of the ICC. Even to an incorrigible critic, the Kenya Government has so far reasonably cooperated with the court, first by not shielding suspects, and two, by providing any useful information to the court.

However, the ICC’s Office of Prosecutor through Bensouda seems deeply disgruntled. Kenya, in OTP’s view, is shielding Mr Kenyatta from prosecution by either interfering with witnesses or stonewalling on crucial information at the centre of the case.

Attorney-General Githu Muigai’s efforts to convince ICC otherwise have hit snags, and OTP even believes it is time an arrest warrant was issued against the President “for obstructing justice”.

How the President is obstructing justice remains vague. But from a logical point of view, OTP should take responsibility for conducting shoddy investigations on Uhuru’s case right from the beginning. Instead, it is strangely and baselessly arguing that terminating the case would mean complete destruction of justice on the part of the victims.

Equally baseless is the argument that terminating Mr Kenyatta’s case amounts to damaging ICC’s credibility, and hence its deterrent value.

There is even a direct accusation against the President that as the most powerful man in Kenya, he has not done much to ensure Kenya complies with ICC directions. Taken together, the import of OTP’s positions is that the defence side should save the court from self-destruction by helping it nail Mr Kenyatta.

Mr Mwalulu works with a quasi-governmental organisation ([email protected])



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