The Star (Nairobi)

30 November 2013

Kenya: President Uhuru's ICC Trials Can Now Begin

A spirited campaign to defer the ICC cases has for the second time yielded no results. Consequently, it now appears President Uhuru Kenyatta would have to settle for a video link trial in the likely event that the ICC approves it, as opposed to having the President physically present at the Hague.

This is welcome relief for all sides especially because it would allow the trial to take place without humiliating the president. Uhuru would otherwise be the first sitting president to be physically hauled into an ICC courtroom to face charges of crimes against humanity.

Uhuru would have undoubtedly preferred that the cases be deferred or terminated altogether but everything considered, going forward with a trial under these circumstances is desirable for several other reasons.

To begin with, a major advantage of having Uhuru excused from physical presence at the ICC, viewed objectively, is because it reduces the chances of having the President arrested.

Truth is, the president could be arrested and taken into custody at any time during the trial if circumstances so warrant; all it would take is for the right circumstances to prevail and the Prosecutor would have this done.

The key point here is the 'right circumstances' and these need not have anything to do with the trial itself. As it is now, a warrant of arrest against any ICC suspect is practically useless unless the suspect's country, or a country that the suspect visits is willing to arrest and hand over them to the ICC.

If the suspect is already in the Hague when or after a warrant is issued, he or she can simply be put in custody regardless of status in their country, including being president.

Arresting a leader of a country may be an extraordinary event in itself, but it's not entirely impossible especially where the political interests of those capable of making the arrest demand it.

Physical absence from the Hague is therefore wise and advisable for any suspect and that is why a video link trial is a relief for Uhuru. It removes the risk of being held at the Hague, giving him time to focus on the trial itself, besides governing.

A question can be asked, what then would happen if Uhuru was tried, found guilty and sentenced? Would he surrender himself to the ICC to serve the sentence?

We can all hope that this won't happen at all. I am referring to surrendering, not conviction which even though possible, is unlikely to happen. Given the nature of the case and the proof necessary to secure a onviction under international law, the decision would still be overturned after an appeal.That is the second main reason why it would be beneficial for Uhuru to be tried via video link rather than being physically present at the ICC.

The other equally important reason is that a video link trial would enable President Kenyatta to govern the country well. The uncertainty and disruption of having to travel to the Hague and staying there for days while his deputy leads the country would be eliminated. No leader would want such inconveniences and Uhuru is no different.

Put another way, in coalition governments like ours (although informally), the partner with the bigger share of the loaf hardly leaves the country. He or she however does a lot of mischief when his or her co-partner is constantly out of the country.

No one knows this better than former Prime Minister Raila Odinga, so one can imagine Ruto doing the same thing to Uhuru since it is alleged Uhuru is already doing this to him.

As I have always maintained, those closely watching Ruto know he is confident that he will walk away from the ICC a free man, when all is said and done.

For Ruto, whether he appears in person or not doesn't matter and so far, his trial has progressed in a very predictable manner. It is likely he would be acquitted since there have been no smoking guns or any smoke at all.

If Ruto is acquitted, it then follows that Uhuru would too be acquitted, for reasons we need not delve into. While this is the outcome that would not throw this country into a mess, it is not guaranteed. It's possible for Ruto to be convicted as Uhuru walks free.

Indeed, in light of the proposed amendments to the Rome Statute that would make it possible for ICC suspects to potentially be tried via video link, only Uhuru stands a chance.

There are those who are saying that Uhuru should nonetheless reject this compromise. However, that will be a huge mistake because in both local and international politics, overplaying one's hand is always politically costly.

All the efforts in the second round of deferral efforts have, in the end, not yielded the desired results. The president can however live and work with the results knowing in all cases where give and take is necessary, nobody gets everything they want.

Most importantly, we have avoided a likely bullet headed our direction had the president not been accommodated. So, let's hope the trials quietly conclude as we close this dark chapter in our history and open a new one full of promises, peace and prosperity.

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