Politics v Law: Bensouda’s Dilemma

It is often said that one can never study International Law distinctly from International Relations as the subject matter interact with each other and are affected by each other. It would be foolhardy to assume that international law is or can be practised outside its political context. The Kenyan cases provide a good example. Notwithstanding the ICC prosecutor’s, Fatou Bensouda, indignant protestation that the court is purely a legal body and does not resort to politics, the events around her cases say otherwise. This view – I think – is costing her, politically at least, and might derail the trial thus deviating from her end game: justice for the victims.

There is a Swahili saying that says “palipo na moshi, pana moto”, which translated in English means “where there is smoke, there is fire.” Over the weekend an extraordinary AU Summit session was held. The prominent agenda was the Kenyan cases at the Hague. As expected the heads of states bashed the court for being an instrument of the west. Moreover it is accused of practising selective justice skewed against African states. The session concluded that the UNSC would be petitioned to consider deferring the cases for one year, something, I have on good authority, the UNSC is considering.

So where is the fire? There must have been a trigger for the visceral attack on the ICC and the defiant tone of the Summit. I attribute this to Bensouda’s move to block Ruto’s (Kenya’s Deputy President) plea to attend only those sessions of his trial that are very important. In other words, he would have been exempt from attending all sessions of his trial freeing his time for State matters, as he argued. The recent Westgate attack just shows one how vulnerable Kenya would be if either the president or his deputy were outside the country let alone them being away at the same time.

Further, there was the bizarre argument by the prosecution that Kenya can swear in another deputy president to hold fort as the current occupant fends off serious international criminal charges. There is no provision of the law that allows for a temporary deputy president. If there is a vacancy as stipulated under the Constitution, 2010, the president is to nominate a replacement and parliament is to vet and vote on his suitability. This was Bensouda’s strike two as politically the perception of a coup d’etat was created in the fertile political minds.

Currently, there is a request pending in the court filed by President Uhuru. He seeks leave from the court to attend his trial sessions through video link, fondly called “Skype” in Kenyan political lingo. The reasons that have been advanced are the same as those advanced by his deputy: he needs to lead the nation. Thus in both the cases there are undertones of the sovereignty argument. This request may very well shape the outlook of the court either by further damaging its image among African states if it chooses to reject the request, or the opposite if it decides to grant Uhuru leave to attend court through the video link. But there is a problem.

There are three people before the court. One who is easily dwarfed in stature, and perhaps quite literally, by the other two is Joshua Sang often the forgotten suspect of the trio. In law, all persons must be treated equally before the law (principle of non-discrimination). Therefore there should be no special treatment on whatever basis. This is the point that Bensouda is making by sticking to the law and shutting her ears to the politics. However she can never ran away from it.

So what if the AU is mad? Suspects appear before the court in their individual capacity don’t they? Well, to the idealist, it is true that suspects do appear in their individual capacity but here is a novel situation. Never in the history of the ICC has it tried a sitting head of state and his deputy at the same time. The situation is quite different from trying captured war lords and retired civil servants. In my view it was ill prepared to handle the cases with respect to recognizing how the status change of the suspects would affect the administration of the cases.

Bensouda has now to decide whether to give into the prayers of the president and his deputy not to attend trials in person by not opposing their pleas before the court or stick to her adherence of the legal principle that all are equal before the law. The former would most likely quieten African leaders and could contribute to the smooth prosecution of the cases as the duo is already cooperating with the court. However it would create a precedent for such cases where all powerful suspects would request the same treatment on the basis on their position and power. The latter  will be sound in law but politically tumultuous. It may spell doom for her cases as it would embolden the pair not to cooperate with the ICC and thus justice for the victims could be in jeopardy.

ICC has the weaker hand here. It has no effective enforcement mechanism, much to the relief of state parties. It therefore means – in terms of power relations – the ICC lacks an independent power base to execute its functions. It therefore relies on the goodwill of member states to enforce its decisions; goodwill that is more often than not subservient to strategic foreign policy goals than to the protection of human rights. Thus, Bensouda may be forced to play politics in order to achieve her end game and deliver justice to all persons affected in the Kenyan cases. But as the drama unfolds, victims should seriously consider where in the world they will get the justice they thirst for.

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