The reality of President Uhuru Kenyatta being in the dock in The Hague and the unpredictability of the International Criminal Court (ICC) are some of the reasons the Head of State was “distressed” when his Deputy appeared before the court on Tuesday. Photo/ANN KAMONI/FILE
The reality of President Uhuru Kenyatta being in the dock in The Hague and the unpredictability of the International Criminal Court (ICC) are some of the reasons the Head of State was “distressed” when his Deputy appeared before the court on Tuesday.
In his maiden monthly media briefing on Thursday, State House spokesman Manoah Esipisu said the opening statements during the start of Deputy President William Ruto’s trial and comments by ICC Prosecutor Fatou Bensouda had distressed the President.
Sources close to the presidency say President Kenyatta strongly feels that the ICC matter should go away as soon as possible.
The Deputy President on Tuesday pleaded not guilty to crimes against humanity charges in proceedings televised live from The Hague, Netherlands.
The President is also scheduled to stand trial before the court in November for alleged crimes against humanity.
Attending the court has been a humbling experience for top leaders and President Kenyatta will be the first sitting Head of State to answer charges at the ICC, a situation his handlers are determined to prevent.
The proceedings are not only seen as an embarrassment but an assault on the presidency.
“The presidency is a critical position. His appearance will undermine his moral authority to govern,” said a source familiar with the President’s thinking but who could not speak on record.
Mr Esipisu said watching the trial was “difficult” for the President because he doesn’t believe the cases have merit.
“The President has worked with the Deputy President for a long time and, knowing where they have come from and what they stand for, he was distressed to see him appearing in the dock,” he said.
Inquiries by the Sunday Nation revealed that although there has been a strong push for him to call the court’s bluff, the President has maintained his commitment to co-operate with the ICC.
He believes that any other move must be anchored on a constitutional mechanism such as a court declaration to avoid confrontation with the ICC and condemnation from friendly nations.
And while Mr Ruto’s advisers encourage him to submit to the court and aggressively fight for an early acquittal, the President’s advisers are strongly exploring ways in which the proceedings can be stopped altogether through organs such as the African Union and the UN Security Council.
The National Conservative Forum, a lobby for a section of lawyers, has moved to the High Court asking that President Kenyatta and Mr Ruto be barred from travelling to The Hague to attend their trials until they finish their five-year term.
This, they argued, will prevent a vacuum in governance.
“The court should issue a declaration that when the President and the Deputy President are out of the country at the same time, there shall be a vacuum in governance on the part of the Executive and this shall occasion an imbalance in power,” Senior Counsel John Khaminwa said.
The court is yet to make a declaration on the matter.
According to our source, the President never believed that the case would be confirmed.
“He is the only one who gave evidence against legal advice: He thought he was killing off the case but he did not succeed,” said the source.
His supporters believe that Mr Kenyatta’s testimony during the confirmation of charges hearing was impressive, bold and helped expose weaknesses in the prosecution’s case.
THAT IS THE CONCERN
“Everybody thinks and agrees that he did well, but he did not convince the judges then; will he do it this time? That is the concern.”
Senate Majority Leader Kithure Kindiki, who at one time represented Mr Ruto in the case, associated the distress to what he called a “personal bond” between the two and what some Kenyans see as an attack on Kenya’s sovereignty.
“It was a natural reaction and empathy because the two share the presidency,” says Prof Kindiki. “The dignity of the country is under attack. It is not fame for any citizen to be tried in a foreign land. It is infamy,” said Prof Kindiki. “Every patriotic Kenyan should bow his head in shame.”
Baringo Central MP Sammy Mwaita encourages President Kenyatta and his Deputy to interrogate their co-operation with the ICC and accuses civil society of “cooking up” the case.
“As a father, President Kenyatta was saddened at the trial of one of his children and friend in a foreign land,” says Mr Mwaita.
“The country is washing its dirty linen in the international arena because of the civil society.”
Jubilee Alliance strategist Moses Kuria yesterday said that President Kenyatta was a “tenacious” and strong man ready to face the court.
“I don’t know what the man eats,” says Mr Kuria. “He has remained strong for the past three years. Waging a difficult election campaign after being named in connection with crimes against humanity requires more than a tenacious man,” said Mr Kuria.
The other concern in the Kenyatta circle is that unlike Mr Ruto who is a battle-hardened, son of a peasant, who has occasionally fought cases in court, the ICC matter is an exceedingly unfamiliar territory for the son of founding President Jomo Kenyatta.
“He has every reason to worry because the court is highly unpredictable,” said the source.
It is apparent that Mr Ruto’s defence team led by British lawyer Karim Khan has adopted the strategy they deployed in the case of Francis Muthaura, the former Head of Public Service and initially President Kenyatta’s co-accused. He was cleared of the charges.
Mr Khan’s style appears to isolate his client from the co-accused and launch a vicious attack on the prosecution’s evidence and discredit the whole case.
Two, he exercises considerable control over his client’s statements and insists on battling in court, not the public gallery or media.
Moreover, like he did in the Muthaura case, Mr Khan this week appeared keen to present a different image of his client to the judges — that of a dignified peacemaker committed to prove his innocence before the court as early as possible.
Perhaps it is for this approach that Mr Ruto distanced himself from the recent resolution of the two Houses of Parliament pushing Kenya to cut links with the ICC.
And during last week’s meeting in Ruiru where an angry President Kenyatta warned the ICC over possible non-co-operation if their trial calendar is not reviewed, Mr Ruto was restrained in his comments.
Notably, the Deputy President in May disowned a letter written to the UN Security Council by Kenya’s permanent representative Kamau Macharia asking it to terminate the ICC cases against President Uhuru Kenyatta and Ruto.
Mr Khan moved swiftly to declare that they did not agree with the letter. My client has every confidence with the judges at the ICC ... We have every confidence that the judges will independently and impartially make the right judgment,” he said.
The lawyer indicated that Mr Ruto had not been consulted before the letter was sent to the Security Council.
“The United Nations has no powers to terminate the proceedings at the ICC and this can only be done by the judges. His excellency (Ruto) has told me that he was not contacted over the matter and this does not represent government policy,” he said.
He also emphasised that Kenya has a duty to honour the Rome Statute and that Mr Ruto had submitted to the authority of the court.
“ and he has cooperated since he was summoned up to this moment and he will continue to cooperate. He also wants to clear his name and we have told the court that there were insufficient and inadequate investigations.

By EMEKA-MAYAKA GEKARA