We shall no longer ask Makau Mutua to "accept and move on" in the small matter of the election of Uhuru Kenyatta and William Ruto as President and Deputy President respectively. He is likely to hurl. Prof Mutua has made up his mind that the election of the two was illegitimate; he is never going to accept them as the legitimate leaders of Kenya because of the accusations levelled against them over the crimes committed in 2007 and 2008 and their subsequent indictments, and imminent trials, at The Hague. He warns them that the Look East Policy initiated in the government of Mwai Kibaki will not rescue them from the clutches of the International Criminal Court's Prosecutor. (Looking East won't end Uhuru's troubles, Sunday Nation, 26/08/13)
Mr Kenyatta's pursuit of investment opportunities in the Middle Kingdom and in Russia may be misguided. Indeed many economists, while holding their judgment until the details of the deals struck in Moscow and Beijing are revealed, have many qualms about the state of the national debt because of these deals. But is Makau Mutua right that only reason why Mr Kenyatta has been so comfortable in wrangling the deals from the two is because he wants to use them as leverages to extricate himself, and his Deputy President, from the clutches of the ICC?
The path to the ICC has not been as straight or as inevitable as made out by Mr Makau and his fellow travellers. For sure, many errors have been highlighted in the process, and many questionable decisions were made by the ICC Prosecutor. The stories of the coached witnesses simply refuse to go away. The partiality of the Prosecutor is yet to be examined comprehensively. At each stage in the process at least one of the Judges has expressed grave reservations about the cases. Makau Mutua has an axe to grind; whether his view prevails is matter only time can reveal.
Messrs Kenyatta and Ruto have always pleaded innocence in the face of the accusations levelled against them. The constant drip-drip-drip of witnesses dropping out of the prosecution may be proof that they really are innocent or that they are using their offices to intimidate the witnesses into withdrawing their testimonies. Makau Mutua fails to impartially examine these issues; his mind, you see, is made up.
To a large extent, Mr Mutua says what the human rights industry in Kenya is saying: Kenyatta and Ruto should never have stood in the election; they should never have been allowed to stand in the election; the Kenyans who voted for them made a mistake, a grave mistake; whether or not there is a trial, Kenyatta and Ruto are guilty. The same human rights industry that has arrayed itself against the two is at the forefront of demanding a respect for the rule of law, one tenet of which is the presumption of innocence. The human rights industry has added a caveat to this tenet regarding Kenyatta and Ruto: because of the gravity of the accusations, and the positions the two held in the former and current administrations, they should be presumed guilty; they should prove their innocence before the world court. The rule of law, as postulated by Makau Mutua and his fellow theorists, does not apply to Messrs Kenyatta and Ruto because they are accused of international crimes; they are guilty as charged. Why should we then bother with a trial?
Mr Mutua is right in one respect: the voters of Kenya are bitterly divided over the Jubilee victory. Half the voters voted for the other guy. But, and this is in no small measure to Mr Mutua's efforts, the electoral system we adopted for the March 4 general election demanded that the winner be picked in the manner that he was picked. We can quibble over the incompetence, and possible corruption of the Independent Electoral and Boundaries Commission but we cannot pretend that this is not the system we chose to elect our president and his deputy. The men and women who voted for the Jubilee ticket may have agreed that the ICC indictments disqualified the two from standing in the election; they either didn't care, or they thought that it did not matter.
It was always a fallacy that the general election and the indictments were connected. If they were, then the rule would have been that whoever is indicted of an international crime could not stand for election anywhere in Kenya. That is not what the rule says. The rule says that a person convicted of an international crime cannot stand for election. In the here and now, Messrs Kenyatta and Ruto are innocent of any crime. They were innocent when they stood for election. This is the reality. There is no need to accept and move on. Whether one does or not, the fact on the ground will not change.