By EMEKA-MAYAKA GEKARA gmayaka@ke.nationmedia.com
Posted Saturday, March 10 2012 at 22:30
Posted Saturday, March 10 2012 at 22:30
A day after the International Criminal Court sanctioned the trial of four Kenyans facing crimes against humanity charges, politicians allied to Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto are weighing several options against The Hague.
Among the options being discussed is reviewing the suspects’ co-operation with the ICC, lobbying friendly countries with links with the ICC to help Kenya’s case and petitioning the government to write a protest letter on behalf of the suspects.
The Ugandan and Chinese governments, both which have judges at the ICC, have been singled out for lobbying. However, it’s not clear what the lobbying would achieve.
Conversations with people close to the suspects revealed that the four are worried that the ICC was determined to have them jailed.
Whereas they are frustrated and bitter with the proceedings, the suspects who operate under ICC imposed conditions cannot publicly rally against the court, or else they would attract arrest warrants. The ICC Pre-trial Chamber on Friday denied Mr Kenyatta, Mr Ruto, former Head of Public Service Francis Muthaura and radio journalist Joshua Sang permission to appeal the January 23 ruling committing them to trial for crimes against humanity over the 2007 post-election violence.
The action paves the way for the ICC presidency to set up a trial chamber by May 9. Mr Kenyatta and Mr Ruto have declared interest to run for Kenya’s presidency.
According to politicians close to the two suspects, Thursday’s campaign in Parliament targeting the British government was a “dress rehearsal” to demonise the court in the eyes of the public and lay ground for possible non co-operation by the Kenya government.
For greater impact, the campaign has been designed to touch at the heart of power: President Kibaki, Prime Minister Raila Odinga, Speaker of National Assembly as well as international diplomat Kofi Annan who handed over the suspects’ names to The Hague.
This is particularly targeted to demonstrate to the President that he is himself not secure and encourage him to support efforts to cut links or defy the ICC.
The strategy is to package the court as a tool of foreign powers such as Britain and America out to persecute the suspects with the aim of locking them out of the presidential race while propping up Mr Odinga for State House. Mr Odinga would then hand over President Kibaki to The Hague.
This would help them to not only frustrate the ICC process but also stop Mr Odinga, whom they accuse of engineering their prosecution, from ascending to power.
Former Gatanga MP David Murathe, a close Kenyatta ally, said the Friday ruling was “just another step of a greater scheme by local and foreign powers to influence the cases”. He added: “It is adequately clear that the court is heavily tilted against us.”
Mr Murathe noted that the suspects had no faith in the court delivering justice. “This is turning out to be a sham trial,” he said.
Another Uhuru ally who spoke to the Sunday Nation on condition of anonymity said: “What do you do when all avenues to justice are being blocked by this court. We have not conclusively decided but non-co-operation is on the table. And if push comes to shove we can vote for them wherever they will be.”
A lawyer involved in one of the cases said the Friday ruling denying them leave to appeal had sparked fear, panic and changed their clients’ thinking about the court. He said it was becoming clear that the ICC had a political agenda.
Since the start of the case, the defence lawyers have hardly won an argument before the court. And with the latest development, he indicated, defence teams would be forced to review their strategy.
“Decision after decision seems to worsen our fears. We have lost faith in the process,” he said.
Asked whether non-co-operation was an option, he said: “If you have a system that is heavily tilted against you and things are pre-determined, what do you gain by co-operating?”
He said the suspects were considering petitioning the government to write to the ICC expressing disappointment over the direction and conduct of the proceedings.
Currently, the suspects’ only hope of stopping the charges will be if they win the jurisdiction appeal in which they argue that Mungiki does not qualify as an organisation under the Rome Statute.
Part of the seemingly well-choreographed anti-ICC campaign came to bear in Parliament on Thursday when MPs allied to Mr Kenyatta and Mr Ruto, using what has been described as a forged document, sensationally claimed that the British government was pushing to have President Kibaki indicted over the 2007/8 post-election violence.
Yatta MP Charles Kilonzo, who tabled the document, also accused the United Kingdom of propping up Mr Odinga and pushing for the detention of the two suspects at the ICC.
It was claimed in Parliament that Britain was funding Mr Annan’s office in Nairobi to continue pushing the war against impunity, including the handling of the ICC matter. Foreign Affairs minister Moses Wetang’ula rejected calls by a section of MPs for Kenya to cut diplomatic links with Britain over the alleged plot.
“Evidence of this includes both the misleading and implausible content and a plethora of spelling and grammatical mistakes,” the high commission said in a statement. The document claimed that the UK wants Mr Kenyatta and Mr Ruto arrested for allegedly threatening the security of the country through their so-called “prayer rallies”.However, in a response, the British High Commission described the allegations as “preposterous, fake and part of unscrupulous agenda”. The national intelligence service (NSIS) also described the document as a forgery.
Ikolomani MP Boni Khalwale, citing Article 35 on the right to information, said the document had cast “aspersions” on the House Speaker, saying he had indicated to the British High Commissioner the possibility of a December election in case the two suspects were detained.
On its part, Mr Odinga’s party, the Orange Democratic Movement, dismissed the document as “patently forged” and said it is a part of a crusade against the ICC.
“The document purporting to emanate from the British Government is full of typographical and grammatical errors that even any Kenya high school student would catch,” said Prof Anyang’ Nyong’o, the ODM secretary general. “The point of this anti-ICC campaign is to drive a wedge between Kenyans and our international partners in order to strengthen local networks committed to maintaining impunity.”
The Sunday Nation also learned that MPs intend to use an affidavit sworn by former Mungiki leader Ndura Waruinge claiming that the British government was funding activities that “bordered on some level of criminality” through the Department for International Development (DFID).
The parliamentary debate is just one of what is seen as a well-chereographed anti-ICC crusade.
Last week, Ugandan activist David Masanga produced a video purporting to be a testimony by an ICC witness claiming he had withdrawn his evidence against Mr Kenyatta and Mr Muthaura.
And last month, Mr Kenyatta’s lawyer, Mr Steven Kay accused foreign powers of fixing the Kenya case.
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