07:17 pm
25 October 2016

The ICC case collapse in Kenya, and a lesson why smart people are not always good

A FEW months ago, on an ordinary Friday evening, a friend invited me for a drink. It was at a fairly upmarket bar in Nairobi, and when I got there, he quickly ushered me into one of those private, VIP lounges off to the side of the main seating area.

As we made our way to this VIP section, he apologised and asked if it was all right that he was meeting some friends; it was going to be a sort of group date, and not a “date date”.

I said it was no problem at all, and as the evening unfolded, I ended up being glad it wasn’t a “date date”. His friends were interesting people indeed – and gave me rare insights into the workings of the Kenyan elite.

In the lounge were a couple of people I knew from PR circles in Nairobi, one prominent judge, one highly celebrated advocate and now ambassador, one principal secretary of a powerful ministry, and one former suspect at the International Criminal Court (ICC).

By the time I was walking in, most of those at the table were two or three drinks in – so already, they were at that sweet spot between sobriety and incapacitation, where you are floating and the world is falling away around you into a soft blur of joy.


The topic of (animated, and celebratory) discussion was the ICC case against Kenya Deputy President William Ruto and radio journalist Joshua arap Sang.

Kenya had just managed to obtain an “assurance” from the ICC’s Assembly of State Parties that previously recorded witness testimony would not used in the case against Ruto and Sang, referred to as Rule 68.


At the point, the prosecutor’s case was in tatters – four of its witnesses had appeared in court, but recanted testimony on the stand. The fifth witness could not be found.

Even those five were the crumbs of the case: eleven other prosecution witnesses had recanted their statements or had refused to testify.

Chief prosecutor Fatou Bensouda argued that the reason why the witnesses stopped cooperating was because they feared reprisal, or were subject to threats, intimidations, or bribery. That’s why the prosecution was trying to get their pre-recorded statements admitted as testimony.

The matter was already under appeal in the court when Kenya launched its campaign at the ASP, a forum which is supposed to deal only with political matters of the ICC.

In short, it smacked of trying to politicise the court’s judicial proceedings, and to interfere with its judicial decision-making.

In that lounge on that Friday night, I was with a group of people who were extremely smart, highly accomplished, brilliant people, some even had serious credentials fighting for democracy and human rights.

And (except the judge) had been personally involved in one way or another in getting Rule 68 binned.

But what surprised me was the glee in the room that evening, as they discussed, in detail, the machinations that they had put in place to defeat the prosecution’s case in the matter of Rule 68. (The former ICC suspect hardly said a word that evening – he just observed and listened with a cool detachment).

Something existential

It went beyond the usual mirth fuelled by whisky and wine. There was something existential here, as the victory high-fives went all round and the laughter was just a hint too loud, the echoes bouncing off the walls with a slightly wooden edge.

The mystery for me was why smart people, who had even made their name in the struggle for democracy, would glean such joy from what appeared to be unethical and undue political pressure on a case that was already before a court.

But what I read from that situation was that for a section of Kenya’s intellectuals, the ICC case was a once-in-a-lifetime opportunity to challenge the global order.

In the past three years, Kenya has spared no expense – state, political, diplomatic, or otherwise – in ensuring the cases, including against President Uhuru Kenyatta were deferred, referred to a continental court, or dropped altogether (which they were eventually were – the prosecution said there had been extensive political interference and witness tampering).

The ICC energised the African Union in a way rarely seen before – there have been repeated threats of a mass walkout from the Rome Statute by African states, the argument going that the ICC is an instrument of western imperialism that was only targeting African countries. This week, President Uhuru Kenyatta has formally asked MPs to approve laws to pull Kenya out of the ICC.

All this has required significant intellectual resources to achieve.

But what was intriguing to me that evening, what I saw for the first time, was the part individual smart people, employed as part of government machinery, saw themselves playing in this grand chess game.

A thrill

From their enthusiastic, yet slightly stilted laughter that day, you could tell that this was personal for them – perhaps a chance to aspire for something greater, a thrill in being personally responsible for global events.

This is not a trivial thing for any African.

But more than that, their delight in watching the cases collapse seemed like a toast to impunity, a celebration in defeating justice. Shouldn’t smart people (even broadly) aspire to be on the side of right, not wrong?

In my view, the problem is that we often mistakenly conflate intellect with ethics – that because someone is intelligent, educated and so on, they should “know better” in matters of ethical and moral judgement.

It’s the reason why we look on in horror as we see clever people join politics and seem to get a lobotomy, and begin spewing uncharacteristically sycophantic stock phrases. We ask: “What happened?”

It’s not that they were not actually intelligent in the first place, and that politics has revealed that they were foolish. Or even that politics has “changed” them. It’s that we are expecting superior ethics from smart people, when those two things are not necessarily linked.

That Friday evening taught me that intelligent people especially, see their mind as a tool, a kind of machine to achieve certain ends.

Thanking Kenyans

Most of the time, our ethical and moral judgments are linked to power: our quest for it, lack of it, loss of it, and so on. And that comes from a completely different place from intelligence per se.

Last Saturday, all six former suspects of the Kenyan ICC cases assembled at Afraha stadium in Nakuru for a state-sponsored rally, to celebrate the collapse of the cases and “thank Kenyans for praying for them”. That same stadium hosted thousands of families chased away from their homes with little more than they could carry in their arms in early 2008.

The President’s Twitter handle on Saturday read: “By the grace of God, justice has been done. #AsanteKenya” (thank you Kenya). Only two people have ever been convicted for murder in relation to the violence in 2007-08 that killed more than 1,300, and displaced 650,000.

If you are scratching your head about how calling that “justice” makes sense, remember that this is about power, not intellectual arguments.