A circus, as I understand it, never having been in one or at one, has a clown, a strong man, a magician, a soothsayer, a snake-charmer and beasts. The International Criminal Court is not a circus. Neither is the Judiciary of Kenya. They are both arena at which innocence or guilt is determined based on the strength of evidence adduced and proven to be true or false. They both rely on technicalities, rules of procedure and the ability of legal counsels to persuade supposedly impartial judges that one side has proven its case over the other. Courtrooms are not the place for weepy soliloquies or angry tirades; only sound reasoning, persuasive interpretation of statutes and astute applications of rules of procedure will do.
Karim Khan, for William Ruto, and Katwa Kigen, for Joshua arap Sang, have managed to persuade the Chamber V(a) of the International Criminal Court that the two surviving suspects of Kenya's Second Case at the ICC do not have a case to answer. Two of the three judges agreed; the third, Herrera Carbuccia, dissented. The house that Luis Moreno-Ocampo had built lies in ruins.
Since Judge Philip Waki created a secret list of the people with the greatest responsibility for the 2007/2008 post-election violence, Kenya has been treated to a grand theatre, in which victims and accused alike begged for the indulgence of their fellow-citizens. Both stated their cases before the people, but increasingly the voice of the victims became an echo, unpleasantly reminding the supporters of the accused that the past is never really gone, just that it is another country.
Had Mwai Kibaki and Raila Odinga rallied their political troops in 2009/2010, it is not difficult to speculate what could have happened had a "local mechanism" been established to investigate and try the perpetrators of the PEV. Would the local mechanism have named Uhuru Kenyatta, William Ruto, Henry Kosgei, Gen Hussein Ali, Amb Francis Muthaura or radioman Joshua arap Sang as suspects? Knowing what we know of the National Police Service and the Office of the Director of Public Prosecutions, that is an answer that will never be given.
We are on firmer ground in presuming that the victims of the violence, no matter which court was seized of the affair, would almost certainly never have found justice. For justice to be done to them, we would have had to admit that the Government of the day, Mwai Kibaki and Raila Odinga both, bore responsibility for the pain and suffering of the victims, for the loss of life and the destruction of property, and that the institutions of Government refused to support the victims at their hour of need and that they would forever be on their own because of their poverty and lack of political influence. That will not change simply because Mr Ruto and Mr Sang have no case to answer at The Hague.
We are adept at forgetting the past and sweeping unpleasant truths under a carpet of graft, sloth and greed. We will do so now. A few lone voices, madmen in the desert, will attempt to keep the issue alive. They will soon enough discover that the vast majority of Kenyans, while saddened at the plight of the victims, don't care any more. It was, after all, eight years ago, and eight years for a population that finds Bob Collymore's latest marriage to be of greater interest and public commentary than David Ndii's treatise on the state of the nation, is enough time for the past to be firmly put in the past.
It is a campaign year and you can put money down that Mr Ruto will be hardpressed to remind voters that he is the Deputy President and that, together with the President, his government has built railways and ports, dredged harbours and opened Huduma Centres. Mr Ruto will accentuate the positives and downplay the rest. If the ICC or the PEV comes up at all, it will only be because of the tenacity of a few and the indulgence of a quisling Fourth Estate. We have moved on. Soon enough we will forget.