{UAH} Pojim/WBK: Great performance, but it doesn't change the reality - Comment - www.theeastafrican.co.ke

http://www.theeastafrican.co.ke/OpEd/comment/Uhuru-great-performance-has-not-changed-ICC-reality-/-/434750/2482764/-/ghjnq1/-/index.html

Great performance, but it doesn't change the reality - Comment

It was quite a performance, we have to admit. One day, no doubt, the type of people who specialise in analysing the language, rituals and semiotics of power will be able to go to town over this.

President Uhuru Kenyatta's performance had, in this case, two audiences: The domestic audience and the African audience.

Parliament was recalled. A speech was made, appealing to all sorts of nationalist, patriotic and pan-Africanist sentiments. Some sort of law was invoked and a sheet was duly signed. The signs and symbols of power were ostensibly handed over. The commentators waxed lyrical.

Then the arrival at the Hague. The crowds, the colours of Kenya, the T-shirts, some clearly commissioned just for this. Then the return home, worthy of the worst reminders of the days of our first and second presidents.

The bureaucratic, military and political reception upon arrival — as though none have day jobs for which the public pays them. The schoolchildren waving flags along the route — who should have been in school. The bused-in crowds — whose buses, rented with whose money? The triumphant tour through the heartland.

Language, ritual, semiotics do matter. And can, apparently, obscure all common sense and the obvious.

The fact that it has always been an individual on the dock — not a country, not a continent. The fact that ceremony and pomp aside, the Constitution is clear — in the absence of the person sitting in the presidency, the person sitting in the deputy-presidency always acts.

The fact that, shuttle-diplomacy aside, in the end, neither an African Union resolution nor a decision exempting sitting presidents from the jurisdiction of the African Court has any meaning with respect to the Rome Statute, that most African states are also party to.

Beyond the performance is this: People were injured, raped and killed. People were displaced. People's livelihoods and property were destroyed.

Beyond the performance is also this: This particular Kenyan case concerns what are carefully couched as "counter-attacks,"  "revenge attacks," "self-defence" — language invoking innocence, justification and legitimacy. But that is language for the domestic audience.

For the legal audience of the Judges, the defence has (wisely) not made recourse to it. It has instead (in a clipped, upper-class English accent and idiom, another type of performance) protested what it perceives of as a travesty of justice. It complied, it says, until it felt it shouldn't comply anymore because it was being ignored. It has protested unfair play (very English).

The Prosecution, on the other hand, has stressed these facts: It still has nine witnesses prepared to testify as to either the alleged presence of the accused at material meetings or the alleged financing by the accused of the same.

While records of outgoing calls from the accused have been destroyed (how, by whom?), it has records of incoming calls to the accused that corroborate contact around the material time. It still does not have the other records it has requested from the government of Kenya.

The Common Legal Representative for the victims described the quest for these records as part of a "long and bitter campaign of attrition."

What will the Judges decide? What determination on the balance between the rights of the victims to justice and the rights of the accused to a fair trial without undue delay will they make?

They concluded the status conference without indication — and without an indication of when we can expect that decision. But this is the sobriety behind the performance. This is what seems to have been lost on both the domestic and African audiences.

L. Muthoni Wanyeki is the Amnesty International's Regional Director for East Africa, covering East Africa, the Horn and the Great Lakes.

Great performance, but it doesn't change the reality - Comment - www.theeastafrican.co.ke

http://www.theeastafrican.co.ke/OpEd/comment/Uhuru-great-performance-has-not-changed-ICC-reality-/-/434750/2482764/-/ghjnq1/-/index.html

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