Tag Archives: ICC

State of the Presidential Race in Kenya’s 2013 Elections

3 December 2012

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UPDATE:

Since this post went up Musalia Mudavadi joined the UhuRuto coalition. This sets the stage for a real two horse race for the presidency between Raila Odinga and either Mudavadi or Uhuru Kenyatta. It is very likely that Mudavadi will run as a compromise candidate due to the charges Uhuru is facing at the ICC. This development, considering Kenya’s ethnic arithmetic, essentially gives the Uhuru camp a head start ahead of the March 2013 presidential elections. Whatever happens, this promises to be a very interesting and close presidential election.

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The presidential race in Kenya’s 2013 elections is beginning to take shape. Yesterday Uhuru Kenyatta and William Ruto unveiled a political pact that will see them run on a joint ticket, with Mr. Kenyatta at the top of the ticket. Messrs Uhuru and Kenyatta both have pending cases at the ICC on charges that they were behind the post-election violence that rocked Kenya in 2007; leaving 1300 death and more than 300,000 displaced. This has led some to dub their joint platform the “ICC ticket,”  since many see the union of the two as solely driven by their joint desire to earn immunity from prosecution by the ICC once they secure the presidency.

uhuru

Uhuru Kenyatta

The second big coalition will see former allies turned foes and then allies – Raila Odinga and Kalonzo Musyoka – come together. Mr. Musyoka is the sitting Vice President while Mr. Odinga is the Prime Minister. The latter is believed by many to have been the winner of the disputed 2007 presidential election. The electoral commission at the time said it did not know who won the election and declared President Kibaki reelected, sparking two months of violence across the country.

The third potential political grouping might gravitate around Odinga’s former deputy, Mr. Musalia Mudavadi. Mr. Mudavadi has been rumored to be in talks with several smaller parties, including those of Peter Kenneth, Raphael Tuju, among others.

Raila Odinga

Raila Odinga

The latest developments will make for an interesting race moving forward. The ethnic arithmetic involved – Kenyans vote largely along ethnic lines – will make for a very close race (More on this soon). Messrs Odinga and Kenyatta are the clear front-runners, with the former having a slight lead in the most recent opinion polls. The constitution requires the president elect to win 50 percent plus one votes, making it very likely that there will be a runoff between the top two contenders after the first round. The ethnic calculations makes Odinga, a Luo, the likely winner in case of a runoff (Uhuru, a Kikuyu, is the son of Kenya’s first president. The current president, Mwai Kibaki, is also a Kikuyu.) But Mr. Kenyatta might still win in the first round.

The biggest uncertainty moving forward will be the candidature of both Uhuru and Ruto. Following the opening of their cases at the ICC they had to resign as cabinet ministers. Already there is a petition in court seeking to bar them from running in the upcoming elections on grounds that their integrity is questionable. The constitution requires only individuals of the highest integrity to be eligible to run for office (It is hard to see how any Kenyan politician will avoid having at least one strike against their candidature).

The supreme court may eventually bar Uhuru and Kenyatta from running – the talk in the street is that if they are unfit to be mere cabinet ministers then they should also not occupy the two highest offices in the country. Their supporters obviously disagree. In their rallies “UhuRuto” have played the nationalist card, insisting that not foreigners (read the ICC) but Kenyans will decide who will be their next president. It is still unclear what course of action they and their supporters would take were they to be barred from running.

More on this soon.

The Cost of Justice

6 June 2012

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+++++++++++++++++++++UPDATE+++++++++++++++++++++

This point, from the comment section below is well taken.

“I think you have drawn the wrong conclusion from the article that you posted. Yes, broadly international justice is expensive. However, the article is referring to the wastage at the an Ad-hoc Special court for Sierra Leone. Similar claims of waste have been leveled at the Rwanda tribunal in Arusha. It should be remembered that one of the reasons for the establishment of the ICC was to reduce the wastage that came as a result of such ad-hoc courts. So in a sense, the expense of the Sierra Leone court justifies the ICC more than anything.”

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I am on record as being pro the ICC. But this got me thinking about the absurdity of having such procedurally expensive justice systems meant to serve people who’s own justice systems are left to crumble….

“The entire budget for Sierra Leone’s domestic justice sector is roughly $13 million per year, including the Sierra Leone Police, the Prisons Department, all levels of the court system, and the various human rights and legal services commissions.  There are just 12 magistrates for the whole country outside of Freetown, and they hear between 4,000 to 5,000 criminal cases per year. The lack of judges, lawyers, and police investigators –even the lack of a few cents in cell phone credit to contact witnesses that might implicate or exonerate a defendant –is a serious obstacle to a functional justice system.

In contrast, a quick tally using the Special Court’s [that tried Charles Taylor] annual budget reports reveal costs of approximately $175 million for the prosecutions of 13 other defendants in Freetown, in addition to the hefty bill for Taylor’s trial in the Hague. And the Special Court boasted 11 judges and hundreds of staff members for its 14 cases spread over the past nine years.  Add on the testimony of Naomi Campbell, and it appears international war crimes have become a red-carpet affair.”

For more on the contrast between the under-financed and poorly staffed Sierra Leonean justice system and the special court’s extravagance check out a post by friend of the blog Alaina Varvaloucas [and her colleague] over at the CGD.

H/T Alaina.

More on the politics of the ICC decision in Kenya

24 January 2012

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Here is an excerpt of a piece I have written over at African Arguments:

“While it might be too early to ascertain the full political impact of the ICC’s ruling, there is no doubt that it will provide a real test to Kenyan institutions – especially the judiciary. The courts will have to decide, amid intense political pressure, whether or not the accused are fit to hold public office and by extension whether those that want to can run for president.  Ultimately, however, a lot will turn on the decisions made by President Kibaki. Will he stand by his trusted lieutenants in Muthaura and Kenyatta or will he bow to public pressure and ditch them in an attempt to secure his legacy?”

More on this here.

ICC Kenya case ruling and its consequences

23 January 2012

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That the ICC’s website crashed an hour before the ruling was given underscores the importance of today’s ICC ruling.

In the end it emerged that charges against Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura, MP William Ruto and radio Presenter Joshua Sang were confirmed. Former police commissioner Husein Ali and MP Henry Kosgey will walk, at least for now.

The political implications of the decision will be huge.

Firstly, President Kibaki must decide whether or not to retain two of his most trusted lieutenants in the government (Messrs Kenyatta and Muthaura) even as they face charges with regard to the death of 1300 Kenyans and the displacement of hundreds of thousands. Should the president decide to stand with them I suspect that soon the courts will have to decide whether these two are fit to hold public office.

Remember that Kenya has a resurgent judiciary eager to stamp its authority as an independent institution. There will be intense political pressure from Civil Society groups to see the two step aside.

Equally interesting will be whether the Independent Electoral and Boundaries Commission will allow Ruto and Kenyatta to run for president in light of these developments. Again, the case might go all the way to the Supreme Court. The Kenyan constitution has a clause banning those accused of certain crimes from holding public office. The vagueness of the wording in the constitution will give the courts discretion in reaching a verdict. I suspect some activism here was well.

Secondly, Ruto and Kenyatta will find it hard to sell their candidacy to Kenyans ahead of the general elections later this year. As the process continues, it will be hard for both (whether guilty or not) to hide from the gruesome crimes that were committed in 2007-08. I therefore doubt the viability of either one running for president at the top of a ticket. If they want to be on a winning team in this year’s election they must be part of a coalition.

But coalition building will be hard. For one, cracks are already appearing in either camp. Ruto recently got kicked out of a party he tried to commandeer after defecting from ODM. Mr. Kenyatta is also facing a simmering insurgency within his Central Kenya camp. The other thing is that the Kenyan economic and political upper class has revealed a willingness to throw the two under the bus if they become too much of a baggage. It is telling that a group of Central Kenyan tycoons have started warming up to Prime Minister Raila Odinga, the man to beat in this year’s general election.

I expect a flurry of press conferences to follow shortly. But I must go to bed for now. It is 3:15 AM…

Justice, the ICC and Kenyan Politics

22 January 2012

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A panel of judges at the ICC will issue their ruling tomorrow afternoon on whether or not six accused Kenyans will stand trial. The six include two declared presidential candidates. Either way the ruling will have a non-trivial impact on the pursuit of justice for the victims of the 2007-08 post-election violence (PEV). It will also significantly shape the politics of coalition building in this year’s general elections.

Because of the ICC process, the Kenyan justice system has put on ice its own process of holding the perpetrators of the PEV to account. A non-confirmation of the charges against at least some of the six co-accused will add the 2007-08 PEV to the long list of crimes against Kenyans, many of which have been committed by the high and mighty, that have gone unpunished.

Justice is political. Therefore, there is no doubt that if the process of prosecuting the crimes committed in the PEV returns to Kenya none of the big fish will be held accountable. That is the sad truth.

This is why despite the noisy political environment, a majority of the PEV victims (and other Kenyans) still back the ICC process. At the very minimum they want justice to appear to be served.

At the moment the problem of justice remains a worry largely monopolized by the 300,000 or so Kenyans in IDP camps and the relatives of the over 1,300 who were killed. [The media and the political class are squarely to blame for this shameful situation.] For the rest of the country, focus has shifted to the politics of the general elections due later this year. To this we now turn.

Two of the accused, William Ruto and Uhuru Kenyatta have declared their interest in the presidency. Mr. Kenyatta is currently the second most preferred presidential candidate after Prime Minister Raila Odinga. Mr. Ruto, while not as popular nationally, still commands a sizeable chunk of the votes in the country’s most populous province – the Rift Valley. The Rift Valley has also been the hotbed of political violence in country’s history, most of it over land.

A confirmation of the charges will seriously dent the presidential ambitions of Messrs Ruto and Kenyatta. It will make it harder for either of them to sell their candidacy outside of their immediate ethnic constituency. It will also give their opponents (and there are plenty) an opportunity to hold themselves as the clean candidates that ought to succeed Kibaki. Needless to say, a non-confirmation would bolster the duo’s campaigns. What will this mean for the general election?

It is common knowledge that the man to beat in the 2012 election will be Mr. Odinga. The two scenarios above will impact the outcome of the election mainly through their influence on the coalition building abilities of the anti-Odinga crowd.

More on this tomorrow in reaction to the ICC ruling.

Tough trying to be good in a bad neighborhood

3 December 2011

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A few days ago a Kenyan judge ordered the government to arrest Sudanese President Omar al-Bashir if he ever sets foot in Kenya. Mr. Bashir has an outstanding arrest warrant against him from the ICC for crimes against humanity committed since 2003 in Darfur.

The ruling has since metastasized into a full blown diplomatic row; Khartoum expelled the Kenyan ambassador before rescinding the expulsion, and is now threatening to cut all trade ties with Kenya, expel Kenyans living in Sudan and deny any planes leaving or going to Kenya from flying in its airspace – if the government does not take back the ruling in two weeks.

The diplomatic row aside, the case has implications for the reform process in Kenya. The case is a test of the depth of the Kenyan judiciary’s new found independence from the executive.

According to Khartoum:

“al-Bashir expects Nairobi to scrap the arrest warrant within the next two weeks and not simply file an appeal.”

That is not how the judicial process works in a democracy. The executive cannot just scrap a judicial ruling. Within Kenya, for the sake of precedence the government must be seen to be complying with court rulings. The Chief Justice has already warned the executive against ignoring the court ruling saying that

“If a country chooses to live by anarchy, it must be ready to face the consequences of disregarding the law.”

It remains unclear what the executive will do given Khartoum’s two week ultimatum. Disregarding the court ruling will come with consequences for the individuals involved – in particular the Foreign Minister and the Commissioner of Police.

Ocampo’s successor to be named

30 November 2011

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Current Deputy Prosecutor of the ICC, Fatou Bensouda, will become the next top Prosecutor at the International Criminal Court. What does this mean for the future of the ICC, especially with regard to African cases?

JiC poses the following question:

….. Bensouda becomes the first African Prosecutor at the ICC. This fact will almost surely garner the most media attention. The African Union has been adamant that an African candidate would be selected, and they got their wish. It will now be very interesting to see how the AU deals with an African Prosecutor. The AU has often expressed frustration and, at times, outright hostility towards the Court for what it, and many of its member states, see as undue bias towards African nations and leaders. Now that the AU has its chosen candidate, will its attitude and rhetoric change?

I doubt it. The African Union’s opposition to the ICC was never predicated on the region of origin of the prosecutor but on the fact that, being largely a club of dictators and pseudo-democrats, it wanted to protect its own. That will not change with the retirement of Ocampo.

In my view the ICC remains to be a powerful source of leverage for African civil society groups against their rulers who oftentimes are inclined to use violence in an attempt to hold on to power.

Without the ICC, all these groups would have are a bunch of great powers and former colonizers full of bark and no bite and who will turn a blind eye to murderous dictatorship in the name of cheap oil and other commodities.

I hope that the court will continue in its task of being a voice to the voiceless, albeit with a little bit more tact (by which I mean the acknowledgement that justice is, ultimately, political).

I have previously commented on the court here, here and here.

No ICC hearings in Kenya

29 June 2011

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The ICC Pre-Trial Chamber Judge Ekaterina Trendafilova on Wednesday decided that the trial of suspects of the 2007-08 election violence in Kenya will not be held in the country.

Great move.

I am of the view that holding the hearings in Kenya would have created an unnecessary distraction from the important task of implementing Kenya’s new constitution. Already, the bigwigs accused of masterminding the violence that killed 1300 and displaced over 300,000 Kenyans have ethnicized their predicament. Holding the hearings in Kenya would have handed them an opportunity for a circus of ethnicity-charged rallies and demonstrations in Nairobi.

The ICC continues to be a source of debate in Kenya and across Africa. Many have faulted the court’s apparent bias against African leaders. Some have even called it a form of neocolonialism. While admitting that the court could use a little bit more tact [principally by acknowledging that it cannot be apolitical BECAUSE it is an international court SANS a world government] I still think that it is the best hope of ending impunity on the African continent – at least until African leaders internalize the fact that it is not cool to kill your own people.

Among the cases that should have been handled with a sensitivity to political realities include Sudan and Libya [and may be the LRA in Uganda]. Kenya’s Ocampo Six, the DRC’s Jean-Pierre Bemba and Cote d’Ivoire’s Laurent Gbagbo, on the other hand, should not raise questions of national sovereignty. Murderous dictators and their henchmen do not have internal affairs. In any case sovereignty for many an African country means nothing more than sovereignty for the president and his cronies.

Related posts here and here.

Judges reject kenya’s bid to stop icc case

30 May 2011

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The government of Kenya has lost in its bid to convince the ICC that it has the political will and capacity to try key perpetrators of the 2007-08 post-election violence (PEV). Kenya had asked for six months to get its justice system in order and convince the ICC that it could bring to book those who planned and carried out the murder of over 1300 people and the displacement of hundreds of thousands in 2007-08. More on this here.

The Kenyan political elite find themselves in a pickle. Less than two years ago parliament thought that they could punt on addressing the PEV by deferring the cases to the ICC. It turns out Ocampo and the court were actually serious. Realizing this, they (the Kenyan gov.) attempted to hurriedly create a local process with the hope of persuading the court to stop the proceedings at the Hague.

But even a blind sheep could see through the government’s insincere attempts to clean up the judiciary or “investigate” the key suspects.

The Kenyan civil society remains adamant that the government has neither the capacity nor political will to prosecute the crimes committed in relation to the 2007 general elections.

Now the clock is ticking. With parliament and the Kenyan legal epistemic community largely in charge of naming the new judges that will staff the supreme court (and the wider judiciary) the accused and their political godfathers are in a panic. They must try and clean up shop under the current system or they will lose big, soon. Realizing the gravity of the situation, the same ethnic chiefs demigods politicians who were running around screaming “sovereignty” and “neo-colonialism” have since gone silent.

The Kenyan case has also generated a lot of heat with regard to the geopolitics of the ICC.

Many in Kenya and across Africa have (sometimes rightfully) criticized the ICC. But in my view it remains to be a necessary institution in the fight against impunity and murderous dictatorship on the Continent. (Pardon the phrase) We cannot throw out the baby with the bath water.

Let’s not kid ourselves. Without the ICC the families of those women and children that were burnt alive in a Church in Kiamba, Eldoret or those killed in retaliatory attacks in Naivasha will never get justice. That is the reality.

Remember, more Kenyans were killed in the months before the elections of 1992 and 1997 than in 2007-08 and yet the Kenyan political class merely pushed the unbearable truth under the rug. Also of note is the fact that the present anti-ICC crusade comprises those suspected to have financed opposite sides of the PEV.

The situation is a grim reminder of the Swahili proverb that says when the elephants fight it is the grass that suffers.

To those who talk of the ICC’s infringement on African nations’ sovereignty I’d like to pose a question: Who’s sovereignty is being violated? Is it al-Bashir’s or the Darfuris?; is it the Central Africans’ or Jean Pierre Bemba’s?; is it the Kenyans’ across the Rift Valley or the sovereignty of the Ocampo six?

what if ruto and uhuru were jailed by the icc?

8 April 2011

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Kenyan politics is currently in flux. Two key presidential candidates, Uhuru Kenyatta and William Ruto may be barred from running for public office next year on constitutional grounds. The key beneficiaries of such an eventuality will most probably be Raila Odinga and Kalonzo Musyoka, the Premier and Vice President respectively.

But what would such an eventuality mean for Kenya?

I’d say not much.

Over the last few weeks Uhuru and Ruto have been crisscrossing the country and holding chest-thumping rallies to prove to someone – either the ICC or the Kenyan political and economic elite – that they have the support of the grassroots. They have also issued thinly veiled threats that violence may erupt in the country if they are whisked to the Hague and barred from running for president in next year’s general election. Why does Uhuru and Ruto feel the need to do this?

In my view, and according to the rules of power politics, a tiger need not shout about its tigritude [I believe it is the great son of Nigeria, Wole Soyinka who coined this phrase].

That Ruto and Uhuru have felt compelled to shout about their support-base and issue threats tells me that they are feeling the heat. The fact of the matter is that the key backers of the duo are the ones who would lose the most in case of a resurgence of violence – think of Kenyan retail, banking, insurance, media and transport barons. These are the people that will lose the most when the Mombasa-Kampala Highway is impassable and Equity Bank closes everywhere. They know this and Uhuru and Ruto also know this. Furthermore, igniting further violence would most certainly attract sterner reaction from international watchdogs like the ICC and the UN Security Council.

There is also the [small] matter that now ordinary Kenyans will also know where exactly the violence is coming from.

Violence is therefore not an option. Not for Ruto and Uhuru. Not for their backers. And most certainly not for the rest of Kenya.

I suggest that the rest of Kenya call their (Uhuru and Ruto’s) bluff about violence next year.

Their battles with justice should not derail the much needed institutional reforms that will take the country out of the miasma of mediocrity that continues to engulf most of the Continent.

In the final analysis, the words of former VP George Saitoti will ring true: There comes a time when Kenya gets bigger than any single individual. Ruto, Uhuru and the wider political class are about to be schooled on this maxim the harsh way.