Finally, after what seemed an endless legal process that has run for about five years, the hearing of the first of the International Criminal Court cases stemming from the post-election violence of 2007-2008 is to begin next month in The Hague.
Deputy President William Ruto goes on trial on three counts of crimes against humanity. He is charged as an indirect co-perpetrator of murder, deportation or forcible transfer of populations and persecution. Charged with him for the same offences is Joshua Sang, a journalist and former head of operations at Kass FM.
Initially, the trial was meant to begin on May 28, 2013 but was postponed at the request of the defence to allow them more time to prepare. As the hearing approaches, the accused will over the next two weeks be busy making arrangements for their travel to the Netherlands and for their stay in The Hague.
There are visas to be applied for, hotels to book, opening statements to be written and rehearsed, public relations strategies to be devised, personal and family matters to be provided for and, for the Deputy President, arrangements have to be made for the conduct of official business from The Hague.
It is a stressful time for the accused, and one cannot fail to empathise with what they must have to deal with as D-Day approaches. Mr. Ruto has made it clear he will attend his trial and has already attended the May 14 status conference. The government has over the last half year conducted a determined diplomatic effort to move the trials to Kenya.
Unlike his Deputy, President Uhuru Kenyatta has kept his strategies quite secret. He has not betrayed his thinking, and even persons close to him are at sea regarding his plans and moves. In this regard, the Deputy President has not betrayed what plans the two must have discussed regarding the running of government in their absence.
Another matter that local observers will be discussing is who will accompany the Deputy President. Apart from his family, who will he travel with? The identity of he entourage is expected to reveal who is truly close to him. Those who pretend to be his bosom buddies will see their fortunes decline if they are not in that entourage. Of course, he cannot travel with everyone who wants to support him, but perceptions are built on such trivialities.
The political opposition will be scrutinising who is footing the bills. It is expected since this is a private matter for the accused, what the President called “a personal challenge”, the public will not be asked to meet any of the costs of the stay at The Hague.
Outside the necessary official aides, the opposition may not accept any other members of the entourage being placed on the public bill. Indeed, one can anticipate lively debate over whether the public has to foot the bill for the President and his Deputy when they are at The Hague.
The referendum on devolution might take a back seat for a while as these questions become relevant in the daily political and constitutional scene.
When the trial opens, we might see a more assertive and no-nonsense court. Over the last few months, the ICC has come under intense pressure from Africa regarding the Kenyan cases. At some point, some observers thought the court had begun to cave in, and it even looked likely the cases might be referred to Kenya.
Recently though, there appears to be a “clawing back” of the gains the accused had made. About a week ago, Ethiopia took a five-country delegation to ICC President Sang-Hyun Song to deliver a letter requesting the Assembly of States’ parties to consider Kenya’s request to transfer the cases to the national mechanisms.
The ICC President told the AU delegation that they should advise Kenya to re-submit an admissibility challenge if they want to have the cases so transferred. Mr. Song reportedly told the delegation that the court would consider a fresh admissibility challenge if it were brought before it.
An admissibility challenge has been made by Kenya before and dismissed. It was not very helpful for the ICC President to suggest another one. He did not seem to be particularly receptive to the delegation though the meeting was reported to have gone well.
As the trial nears, the possibility of Africa derailing the proceedings at the ICC becomes slimmer, and the court’s confidence against threats from the continent will grow. Nor is it helpful to the accused that Egypt is collapsing into chaos. Everyone’s attention is turning to developments in North Africa, and fewer and fewer people view the Kenyan ICC cases as matters of priority.
The silence of the African Union in light of what many are considering a military coup and a crackdown bordering on a massacre in Egypt will not bolster its credibility to argue the Kenyan case. The AU may even go totally silent on the issue on Kenya rather than risk being accused of promoting impunity in Africa.
Some observers are expecting that the ICC will take advantage of the situation to re-assert its authority over the Kenyan situation and to “claw back” on concessions that had been made to the accused. Already , the Deputy President is now required to attend all sessions of his trial, a “claw back” from a concession given earlier.