Thursday, September 12, 2013

In search of political legitimacy?

Managing expectations is harrowing, especially when the expectations you are expected to manage are from men and women incapable of rational, logical discourse within their particular group. The cheerleading squad that accompanied the Deputy President to The Hague is one such group. Individually, each Member of Parliament is capable of erudition when discussing matters of national importance. Collectively, they are a mess. A hot mess.

Nothing demonstrates this as the expectations they have built up regarding the eventual acquittal of the Deputy President of all charges laid against him by the Office of the Prosecutor. Mr Ruto has done nothing to dampen their ardour. Indeed, he has ratchetted up their expectations such that it is near impossible to ask them to consider an alternative outcome. Every word that comes out of the mouths of Mr Ruto's capable team of lawyers is treated as just another element towards his eventual redemption at the International Criminal Court.

And it is not just the politicians we must watch. Even sensible lawyers in public and private practice have built up a nasty habit of ignoring unpalatable truths about the way the trial of the Deputy President is going. Otherwise sensible lawyers have sacrificed their legal intelligence at the altar of Hail Mary Passes. Many of them watched the Opening Statements of the defence counsels and decreed them to be the superior ones when measured against those of Fatou Bensouda, the redoubtable Gambian, and her team. When the Judges of the Trial Chamber V called out Ms Bensouda for not preparing adequately to lead her witnesses, they took this as a sign that the chief Prosecutor's case was much weaker than she has led everyone else to believe. Mr Khan and his team are the Seconed Coming; Ms Bensouda and hers are the witch-hunters in the employ of unnamed foreign powers out to foment evil in Kenya by any means necessary, relentlessly hounding the Deputy President out of some animus that has no foundation.

This blogger readily acknowledges his inexperience in trial advocacy, though he spent enough time acquiring his law degree and Bar certificate. This blogger has spent his entire professional life on the outside looking in, never having had the opportunity to play in the Big Leagues with the Big Boys. But despite this blogger's inexperience, there are certain immutable truths that even the Big Boys cannot elide. Trials are not won or lost on the strength or weakness of an opening statement, but on whether or not the facts support ones case. Ms Bensouda is yet to lay her case before the court in its totality. Mr Khan is yet to challenge the prosecution's case with counter-facts of his own. This trial is set to run its course. Mr Ruto's guilt or innocence will only be known when the facts have been presented and the judges have ruled one way or the other.

At some point the judges will have to decide whether the trial is worth continuing. In Kenya, this would be the stage when the court asks whether or not the accused has a case to answer. That point lies at least several weeks in the future. The fawning entourage of waheshimiwa making asses of themselves at the International Criminal Court viewing gallery must surely realise this. Unless their intent is not to discover the guilt or innocence of their friend-in-need. Perhaps, just as it has always been in Kenya, they are hedging their bets. If they are seen to be robustly foursquare behind the Deputy President, they may benefit politically on the off-chance he is acquitted. Or convicted. To them it might not matter one way or the other. What matters to them is the appearance of political loyalty. The facts, as always, are mere tools in their quest for political legitimacy. It would shock Mr Ruto to know that perhaps all those loyal voices in the gallery are there only to be seen by others at home, and not necessarily in support of his personal challenges.

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