Ambassador Francis Muthaura – the oldest of the Ocampo Four – appears to be a haunted man. But he’s right about one very important thing.
He wants the case against him at the International Criminal Court to start pronto – before the end of the year.
He and I agree on this – justice delayed is justice denied. That’s a cardinal principle of the rule of law.
The other suspects – Deputy Prime Minister Uhuru Kenyatta, radio journalist Joshua Sang, and Eldoret North MP William Ruto – want the trials to start after elections in March next year.
The ICC prosecutor seems to agree with them. I will tell you why Mr Muthaura is right, and the ICC wrong. There are also intriguing sub-plots.
Mr Muthaura is not a spring chicken. He will turn 66 on October 20. That’s not ancient, but it definitely puts him in the last stanza of his life. But get this – trials at the ICC usually take years.
In all likelihood, Mr Muthaura will be over 70 before his case concludes. Trials at The Hague are exhausting and stressful.
Even for a younger man in more robust health, a trial for crimes against humanity can be gruelling. The emotional cost to the suspect and his family must be very high.
This is especially true if one considers himself innocent. These must be some of the factors Mr Muthaura must have considered in seeking an expeditious trial.
The mighty and powerful have had a difficult time at The Hague. The late Serbian President Slobodan Milosevic died while on trial at the International Criminal Tribunal for the former Yugoslavia.
Former Liberian warlord President Charles Taylor just got convicted and sentenced to 50 years in prison.
I am sure Mr Muthaura wants to spend his dotage playing with grandchildren, not being hectored by lawyers at The Hague.
His three co-suspects needn’t worry about their age. All are younger men. At 50, Mr Kenyatta is the “oldest” of the young bunch.
On age alone, Mr Muthaura’s interests are in diametric opposition to the other suspects. That’s why the ICC shouldn’t deny his due process rights for an expeditious trial.
But there’s more. Mr Muthaura shouldn’t be sacrificed – once again – by the mandarins of the Kibaki regime.
Media reports indicate that Mr Muthaura wanted to go into retirement after President Kibaki’s first term in 2007.
However, he stayed on through the election out of loyalty to Mr Kibaki. It’s that cruel twist of fate which has him on trial at The Hague.
Mr Muthaura wouldn’t have been caught up in the ICC dragnet had he retired prior to the 2007 elections.
Now – once again – he’s been asked to accept a later trial date for the political convenience of Mr Kenyatta, who appears to be President Kibaki’s preferred successor.
I am glad Mr Muthaura is refusing to be used – again. Then there’s the matter of Mr Kibaki himself.
Although Mr Kibaki was the direct beneficiary of the 2007 elections – with all the attendant violence – he’s not the one on trial at The Hague.
In fact, Mr Kibaki will be in comfortable retirement at his palatial Othaya home when the ICC will be “tormenting” Mr Muthaura at The Hague. Just picture the two drastically contrasting images.
Even though he’s loyal to a fault, Mr Muthaura can’t be happy about this picture. He must feel like a sacrificial lamb.
And, perhaps, he is. He must feel that he’s here to “carry Mr Kibaki’s water”. Only now he also has to carry both Mr Kenyatta’s and Mr Ruto’s water. Talk about loyalty.
Temperament of court
I would reconsider my legal strategy if I were Mr Muthaura. I’ve been baffled sometimes by the strategies pursued by his lawyers.
It seems to me that the first thing a lawyer seeks to do is understand the philosophy and temperament of a court.
Only then can she/he scheme and strategise for the maximum benefit of the client. One must avoid sideshows. The most important thing is to relentlessly pursue an “exit strategy”.
I believe Mr Muthaura ought to pursue a bold legal strategy that’s completely different from Mr Kenyatta and Mr Ruto.
My free advice is that Mr Muthaura should cut a deal with the prosecution and testify against Mr Kenyatta in exchange for his freedom.
This is the only way Mr Muthaura can save himself. Otherwise, he’s looking at possibly two terrible outcomes.
He could be convicted after a long trial and sentenced to life in a cold foreign country. Or he could be found not guilty, but after a long stressful trial.
However, he would be a free man – although a key witness – if he cuts a deal with the prosecutor.
I hope Mr Muthaura has thought of this tantalising scenario. I would certainly pursue it if I were his lawyer.
I know his former colleagues in the government – President Kibaki, Mr Kenyatta, and their political allies will excoriate him. But he must look out for himself.
It’s every man for himself at The Hague. Mr Kenyatta and Mr Ruto want the trials delayed so that they can contest the presidential elections.
I can’t blame them for putting their interests above those of others. That’s life. But Mr Muthaura should also do the same – put his interests above theirs.
He won’t be running for public office. He has served and retired. Why should he not think of ways of “beating the rap” at The Hague?
He can do so by becoming a witness for the prosecution. But I am sure he would want the charges against him dropped. Deal?
Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC