As the President's trial date looms, handlers and political constituents assess impact on power and prestige and see unacceptable risks.
SUPPORT: President Museveni of Uganda and Rwanda's Kagame. It is widely reliably believed that both of them have counselled President Uhuru against submitting himself to full trial.
As President's trial date looms, handlers and political constituents assess impacts on power and prestige and see unacceptable risks.
Some of President Uhuru Kenyatta's closest friends and associates speak admiringly of how he is holding up under the pressure of the ICC prosecutions. They also remark his willingness, almost eagerness, to clear his name by cooperating fully with the process now underway.
But there are those, also close to Uhuru, for whom the danger of things taking a turn for the worse in the dock and the judges wishing to establish a certain reputation for the Court, pointedly using the Kenya cases as both pretext and precedent, that will reverberate down the coming decades and even centuries.
A conviction at the ICC at any level has insurmountable problems in the cases ranged against the President. A custodial sentence even of merely a year is an instant career ender.
Even a suspended sentence is reputational terminally bad news, with every global news outlet and academic study prefacing references to him as "ICC convictee-this-and-that", in perpetuity.
Non-custodial sentences that nevertheless order reparations to victims offer their own hell on earth, combining the permanent reputational shadow of conviction with an unprecedented raid on personal treasure. And long before the judgment is read out in court, there will have been the political drama and trauma of a President on trial.
The presidency is special:
The presidency is Kenya's apex office. The honorific of 'excellency' applied to the holder of the office is for life. In both his person and office the President at all times embodies the best of Kenya, the best that Kenya has to offer.
The presidency is a place of power and poetry, of larger-than-life gestures, pronouncements, decisions and dramas. The Presidency is the most superlative symbol of nationhood and the culmination of the power of the Constitution, a power invested in "We, the people". It is the office of the Supreme Commander and the latter-day equivalent of the sovereign.
The occupant of the presidency is a very special person indeed. The coming spectacle, if it indeed happens, whereby Kenya's fourth President and Commander-in-Chief is required to submit himself to a jurisdiction outside Kenya, while still in office, and to play the role of an indictee with cases to answer in categories of some of the worst crimes imaginable, is a stupendous gamble.
If he persists with submitting himself to the ICC, President Uhuru will be enmeshed in a process that will end with a judgment handed down by judges over whom neither he nor Kenya has any sway. The President's predicament is being increasingly viewed as an abomination by millions of Kenyans.
Millions of others in the woefully divided nation called Kenya are quietly relishing the coming spectacle and what they hope will turn out to be the President's unmitigated humiliation and downfall.
These are the leaders and supporters of the Coalition for Reforms and Democracy, whose high command insists on a narrative of a second stolen presidential election and implacable opposition to a second half-century of a Kikuyu-Kalenjin lock on State House.
If President Uhuru continues on the path of total cooperation with the ICC in the matter of the cases against him, Kenya's imperial Presidency will never be the same again. Not even if he is acquitted on all counts.
Taking all the authority, power and majesty of the Presidency to the ICC and throwing himself personally at the mercy of the judges of a court whose entire jurisdiction, mindset and procedure are non-governmental, will seriously downgrade and degrade the preeminence of Kenya's imperial Presidency.
The presidency's loss of prestige will quickly translate into a very special kind of power vacuum - at the presidential level public perceptions of the nature and quality of ultimate power (previously absolute power, until the promulgation of the Constitution of Kenya 2010) are everything. And this is true both at home and abroad.
This loss of authority and prestige could percolate into other sectors of the Kenyan body politic, including the private sector, with dangerous outcomes.
The President is a special person:
And few people in this country are as self-consciously aware of these facts as Uhuru Muigai Kenyatta, 52, son of Kenya's first President, the late Mzee Jomo Kenyatta, a power proponent, practitioner and pioneer in a class of his own.
Jomo Kenyatta is such a towering figure in Kenya that, even in death, he is still guarded by armed troops in full ceremonial uniform around the clock, 35 years after he passed on.
The perception is quietly taking root in the President's political heartland that the son of Jomo Kenyatta, now in his own political apotheosis as President and Commander-in-Chief in Kenya, has no business submitting himself to the jurisdiction of a court that is unfit to try the humblest American citizen, including soldiers active in theatres of hot wars.
According to the American Non-Governmental Organizations' Coalition for the International Criminal Court (AMICC), a programme of Columbia University's Institute for the Study of Human Rights, "The Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 prohibits funds from the Foreign Relations Authorization Act 'or any other act' from being used by or for the support of the ICC, or to extradite a United States citizen to a foreign country obligated to cooperate with the ICC unless the US receives guarantees that that person won't be sent to the ICC.
It also states that the US 'shall not become a party to the International Criminal Court except pursuant to a treaty made under Article II, section 2, clause 2 of the Constitution of the United States".
The AMICC also cites the American Service members' Protection Act of 2002 (ASPA), which "was signed into law on January 28, 2008. The current version of ASPA includes the following provisions, subject to full waivers at the discretion of the president: "Prohibition on cooperation with the International Criminal Court; Restrictions on US participation in UN peacekeeping operations; Prohibition on direct or indirect transfer of classified national security information, including law enforcement information, to the International Criminal Court, even if no American is accused of a crime.
"Preauthorized authority to free members of the armed forces of the US and certain other persons detained or imprisoned by or on behalf of the International Criminal Court (the so-called 'Hague Invasion' clause)".
Indeed, in this country, it is being ferociously argued in some quarters that the ICC only became fit to try Kenyans by default, under politicians and bureaucrats who either did not read the small print (surely the devil's dwelling place when he is not resident in hell) or did not grasp the big picture.
Even as these passionate objections to The Hague are discussed wherever two or three Kenyans are gathered in the Mt Kenya and Rift Valley regions, and not only there, Deputy President William Ruto's trial has begun at The Hague and is in its second week.
What's more both Parliament and the Senate, deploying the Jubilee Coalition's superior numbers, have voted to remove Kenya from the Rome Statute, which established the ICC.
The AU factor:
The African Union has entered the fray, launching both diplomatic and legalistic challenges, including at the UN headquarters in New York and at The Hague.
The AU onslaught on the ICC is led by veteran statesmen Yoweri Museveni of Uganda and Paul Kagame of Rwanda, both of whom, it is widely and reliably believed, have counselled President Uhuru against submitting himself to a full trial.
Nigerian President Goodluck Jonathan and Chinese President Xi Jinping have separately called for the unconditional termination of the cases against Uhuru and Ruto (who is charged alongside radio broadcaster Joshua arap Sang).
Jonathan made his remarks during a state visit to Kenya in which he led a large delegation of investors. Jingpin spoke when Uhuru made a triumphant state visit to China during which he signed US$5 billion worth of infrastructure and investment partnerships. The Chinese Embassy in Nairobi followed up Jingpin's remarks with an official statement that read in part:
"The Chinese government understands the concerns of the Kenyan government over the ICC cases and supports efforts by the Kenyan government to put these cases to an end. We hope the ICC can fully respect Kenya's judicial sovereignty".
The closer the start of Uhuru's trial gets, the greater will become the international, indeed intercontinental, din against it. In the process, the ICC will become increasingly painted into a corner as being fundamentally flawed and stacked against African leaders.
It is not for nothing that Museveni and Kagame are railing against the court, leading as they do post-conflict nations that saw massive crimes against humanity, including the last genocide of the 20th Century, the Rwanda horror of 1994.
It took even greater violence to quell the Uganda and Rwanda crises of the 1980s and 1990s, since when both guerrilla leaders have remained firmly ensconced in office amidst, among other factors, conflict spillovers into the DRC.
As long as the world's lone superpower and other powerful and influential nations heartily recommend a world court to others which they would not allow anywhere near their own leaders or soldiery, the ICC will smack intolerably of being built on the quick sand of a latter-day separate development mentality. Why should President Uhuru participate in a process that is clearly redolent of apartheid in its architecture?
Does he have more blood on his hands than, say, Henry Alfred Kissinger; George Herbert and George Walker Bush; and one Anthony Charles Lynton Blair, a.k.a. Tony Blair? Indeed, is it a given that Uhuru has any blood on his hands?