By Makau Mutua
The Jubilee corner is in a complete tizzy. Thatâ€™s because the indomitable Fatou Bensouda, ICCâ€™s own Iron Lady, has thrown in the towel. Thatâ€™s right â€“ Ms Bensouda has conceded she doesnâ€™t have the grounds to put Kenyaâ€™s Uhuru Muigai Kenyatta behind bars for crimes against humanity. The sigh of relief from State House Nairobi could be heard all the way to The Hague.
But the withdrawal of Mr Kenyattaâ€™s case is a double-edged sword. A â€œwithdrawalâ€ isnâ€™t an â€œacquittalâ€ or a â€œtermination.â€ Methinks itâ€™s premature to uncork the champagne bottle. My crystal ball tells me the ICC isnâ€™t done haunting the Jubilee duo of Mr Kenyatta and William Ruto.
Get your popcorn and let me peel your eyes. First, letâ€™s stipulate that Mr Kenyatta hasnâ€™t been completely cleared by the ICC. Ms Bensouda has asserted â€“ and the judges concur â€“ that the Kenyan Government hasnâ€™t cooperated with the ICC. In plain language, the Kenyan Government, of which Mr Kenyatta is the principal, has obstructed justice.
This is the finding of the ICC judges, not one Makau Mutua. But the judges then went on to hold â€“ incredibly â€“ that they wouldnâ€™t refer Kenya to the Assembly of State Parties for its refusal to hand over required evidence. Thatâ€™s a load of manure.
The ICC blinked, and in so doing, gave impunity legs. But it put a dagger in Mr Kenyattaâ€™s back â€“ that â€œhisâ€ state has shielded him from justice. My point is that the Court didnâ€™t clear Mr Kenyattaâ€™s name, or opine on his guilt or innocence.
In my view, that means the world is free to draw a negative inference against Mr Kenyatta. The Chief Prosecutor charged, and the court agreed, that witnesses have disappeared, been murdered, bribed, interfered with and intimidated.
Logic says that Mr Kenyatta is the beneficiary of the collapse of the evidentiary basis of the case. Thatâ€™s why the inference of guilt can never go away absent a full trial. A cloud will always hang over his head. Ms Bensouda â€œwithdrewâ€ the charges. The Court didnâ€™t â€œacquitâ€ Mr Kenyatta. She has reserved the right to reinstate the charges should fresh evidence be found.
Political marriage Second, Mr Kenyatta should be worried about what the withdrawal of the charges against him will do to his political marriage with Mr Ruto and URP. You donâ€™t have to be a rocket scientist to know that Mr Rutoâ€™s case got stronger as Mr Kenyattaâ€™s got weaker. This is toxic news for Mr Kenyatta because Mr Rutoâ€™s Kalenjin base is steaming. Get this â€“ the only defendants left in the ICC dock are both Kalenjin.
Mr Ruto and journalist Joshua arap Sang have been left holding the bag for the 2008 post-election mayhem. Both were in ODM. All the PNU suspects have gone scot-free. Thereâ€™s no doubt Mr Rutoâ€™s Kalenjin acolytes will start spouting â€œgrievance politicsâ€ soon. You know why. Mr Kenyatta is an astute politico. In his statement after his charges were withdrawn, he was quick to show solidarity with Mr Ruto, his deputy, over his continued tribulations at The Hague.
Mr Kenyatta sought to put out the fires before they become an inferno. He doesnâ€™t want to seem callous, or be seen to throw Mr Ruto under the bus. Nor does he want to celebrate his own good fortune too loudly. The question is whether Mr Rutoâ€™s URP column will buy Mr Kenyattaâ€™s politics of humility and solidarity with their chief. My intuition tells me the mutual suspicion between the two men â€“ and their camps â€“ will only intensify. The reverse would be apolitical. Matters will heat up.
Third, the marriage in Jubilee between Mr Kenyattaâ€™s TNA and Mr Ruto URP is in all probability on life support. I once wrote that the Jubilee alliance was nonsense on stilts and couldnâ€™t take one step without collapsing in a heap.
I was right. Jubilee will only survive if Mr Ruto is acquitted at The Hague, or if his case doesnâ€™t drag on for too long. In the event, Mr Kenyattaâ€™s politics of appeasement may not work.
Letâ€™s remember there are those in his inner sanctum who have no use for Mr Ruto. Will this faction use the withdrawal of the case to stick it to Mr Ruto? What leverage does Mr Ruto now have in Jubilee? Which brings me to my final point. The â€œbondâ€ between Mr Ruto and Mr Kenyatta was the ICC cord. That cord has now broken â€“ irrevocably. The bond that held the duo together has come apart. The strategic and tactical reasons for their marriage no longer hold. Mr Kenyatta is now clearly in the driverâ€™s seat, and Mr Ruto can do nothing about it. Politics isnâ€™t about sentiment, but interests.