Kenya: The decision by International Criminal Court Prosecutor Fatou Bensouda to seek further adjournment in the commencement of President Uhuru Kenyatta’s is likely to have serious political implications.
The President’s lawyers are also pushing for termination of the case. If they succeed, the PNU case (in which Francis Muthaura, Major General Hussein Ali and President Kenyatta had been indicted) will have collapsed, leaving the ODM case (in which Deputy President William Ruto, former Cabinet minister Henry Kosgey and former radio presenter Joshua Sang were indicted) in progress. Muthaura, Ali and Kosgey have since been set free.
Jubilee leaders led by Senate Majority Leader Kithure Kindiki, TNA chairman and nominated MP Johnson Sakaja, former URP chairman Francis ole Kaparo, Kiambu Senator Kimani Wamatangi and Elgeiyo Marakwet Senator Kipchumba Murkomen now say the Uhuru and Ruto cases should be dropped due to lack of evidence.
The cases at The Hague, Netherlands, are believed to have united Uhuru and Ruto in crafting the Jubilee alliance ahead of last year’s General Election, seen by many as a referendum against the ICC.
Prior to the Jubilee formation, the two had been part of the Kikuyu-Kalenjin-Kamba (KKK) alliance and later the G7 political formation that also included former Vice-President Kalonzo Musyoka and former Justice Minister Eugene Wamalwa, but which never solidified.
Some analysts now say the collapse of one case could have a negative impact on the coalition.
“Terminating the President’s case while his deputy’s is ongoing may be of little effect now, but the danger will be convicting Ruto and the anxiety among his supporters. But my opinion is that Bensouda is playing her cards knowing it is hard to successfully prosecute a sitting President, and that is why she has applied for indefinite postponement,” said Dr Adams Oloo, the Head of Political Science and Public Administration at the University of Nairobi.
However, politicians from TNA and URP believe the outcome is unlikely to distabilise Jubilee. Prof Kindiki says there should be no fear because the two cases will collapse at some point.
“It is unfortunate that five years have been wasted and even the case against Ruto is a journey to nowhere. It is collapsing even before the defence comes in. The lack of co-operation claim by the ICC prosecutor is diversionary tactic because Ocampo had told the world he had evidence. The rule in criminal justice is that you do not sue people then go to look for evidence,” said Kindiki.
The Tharaka-Nithi Senator said: “Having been involved in this case as a counsel before, we told Kenyans it was political and I am happy we are being vindicated at last”.
Wamatangi said Jubilee expects the cases to collapse because they were rushed without evidence. “We do not expect one case to be dropped and another sustained because both lack evidence. The best way for Bensouda is to terminate them because she did not even initiate them,” added Wamatangi. Kaparo also downplayed possible friction in the Jubilee coalition.
“Talking of what might happen is conjecture which I do not want to speculate on. Jubilee is not premised upon the ICC since it has other fundamental principles that brought TNA and URP sides together,” Kaparo, who was at the centre of the coalition’s formation, said.
Kaparo, also a former Speaker of the National Assembly, said from the beginning, the prosecution had no evidence against Uhuru and Ruto and the two cases should be terminated. “In the first place, the judges should never have confirmed the charges because evidence was cooked-up. Even witnesses in the Ruto case have admitted churning out lies,” added Kaparo.
Murkomen said the Ruto case was likely to collapse even before Uhuru’s, because witnesses had failed to provide credible evidence against the Deputy President.
Sakaja said Jubilee will be fighting for both cases to be dropped. “I do not foresee instability in Jubilee over the ICC. While we want the prosecutor to terminate the case against Uhuru, we also want ICC to review the court’s disposition on the Ruto case because it is based on evidence manufactured by NGOs and other intermediaries,” argued Sakaja.
He said Uhuru and Ruto are victims of the same problem and the coalition will fight to ensure they overcome the ICC challenge. Gatundu South MP Moses Kuria said Uhuru and Ruto’s cases should be terminated and the ICC sued for damages by the two.
“We have said since 2010 that the wrong people were prosecuted and this has subjected them to mental torture when they are innocent,” said Kuria.
He said what is unfolding at the court will never have a serious impact on Jubilee.
By Stephen Makabila, The Standard