Bad prosecutor.

I am a lawyer. Much to my dear parents' great disappointment, I am a crap lawyer. Chances are if I were to appear against even a middling lawyer before one of Willy Mutunga's judges, I'd lose the matter, my client would lose his shirt and my unbroken streak of un-accomplishments would remain unsullied. But just because I am shit when it comes to the extreme sport that is lawyering in Kenya does no mean that my training was in vain. Even the dullest knife in our particular drawer can still cut through butter. It is why my befuddlement at the hemming and hawing by the Office of the Prosecutor of the International Criminal Court is deepening by the month.

Under Luis Moreno-Ocampo, an accusation was made against Uhuru Kenyatta who was at that time a Deputy Prime Minister and Minister for Finance. Mr Moreno-Ocampo relied on the report of the Commission of Inquiry into the Post-Election Violence better known as the Waki Commission. He also relied on the report of the Kenya National Commission on Human Rights headed a that time by Florence Simbiri Jaoko. Then there was the spirited campaign by the civil society industry in Kenya, especially by Makau Mutua and Maina Kiai, to ensure that the sponsors of the post-election violence did not get away Scot free.

Mr Moreno-Ocampo, by all professional accounts to date, did a shoddy job. He charged Mr Kenyatta with grave international crimes and then went fishing for evidence when the Waki Commission Report and all the other reports proved to be less than adequate. Then he retired. Fatou Besouda, the indefatigable lawyer from the Gambia, took up the job from where Mr Moreno-Ocampo had left off. I wonder if she stays up at night cursing the day Mr Moreno-Ocampo decided to build a mansion on quicksand.

It is increasingly evident that Mr Moreno-Ocampo's preparation was grossly inadequate. It is so for many prosecutors dealing with criminal matters that rely overwhelmingly on eye-witness testimony. This is not like the convictions that the Manhattan District Attorney has secured for insider trading in New York. Preet Bharara has had the good fortune of documentary evidence, only relying on witness testimony to confirm what is contained in thousands of pages of financial transactions.

Mr Moreno-Ocampo and Ms Bensouda had entirely different challenges to surmount. The most difficult is that while Kenya prides itself as a modern nation, it is in fact still stuck in the pre-digital age where paper documents reigned. The sort of records that a Manhattan DA would rely on are almost certainly unavailable. Then Mr Moreno-Ocampo made the mistake of taking Mwai Kibaki's and Raila Odinga's word that they would guarantee the co-operation of the Government of Kenya forgetting that while Mr Kibaki had the power, he was a lame duck looking for  successor, Mr Odinga did not have the power to ensure co-operation at all.

Mr Moreno-Ocampo and his successor were taken round the mulberry bush and we are now faced with the uncomfortable spectre of the collapse of the Deputy President's trial and the withdrawal of charges against the President. Moreno-Ocampo was a bad prosecutor. Ms Bensouda is paying the price. Whether it happens today or in a year's time, Ms Bensouda will have no choice to withdraw charges against Uhuru Kenyatta. And given the litany of recantations and witness hostility, Mr Ruto's trial seems set to collapse spectacularly.