Making sense of the Kenyan government’s reaction to UNSC vote on ICC deferral

The UN Security Council has rejected Kenya’s (and the African Union’s) request for a one year deferral of the case against President Uhuru Kenyatta and his deputy at the Hague. The two stand accused of crimes against humanity committed following the disputed elections in 2007. More than 1300 people died, and hundreds of thousands were displaced.

The US, UK, France, Australia, Guatemala, Luxembourg, South Korea and Argentina abstained to stop the deferral request. China, Russia, Togo, Morocco, Pakistan, Azerbaijan and Rwanda voted for a deferral. African leaders have in the last two years been on an ill-advised crusade against the ICC, terming it as a “race hunting” tool of “declining” Western powers.

Kenyatta and Ruto are innocent until proven otherwise, but their attempts to make their personal cases at the ICC a regional struggle of Africans against imagined neo-colonialists bent on usurping African sovereignty is a little misguided. The Kenyan case is different (Kenya is not Sudan or the DRC) and ought to have attracted special consideration from the court (see closing remarks below). However, despite its faults the ICC is all the continent has in the quest to hold its leaders accountable. I reiterate, murderous dictators in Africa and elsewhere should never be allowed to have internal affairs.

Here is the government’s total freak out response following the UNSC vote, with some comments from yours truly.

STATEMENT FROM THE FOREIGN AFFAIRS MINISTRY IN KENYA

Kenya takes note of the outcome of the United Nations Security Council meeting on peace and security in Africa, and specifically on the subject of the request for deferral of the Kenya ICC cases. Kenya wishes to thank China and Azerbaijan who, during their stewardship of the Security Council, have been professional and sensitive to the African Union agenda.

Wow, this is how bad things have become. That Kenya finds friends in states like Azerbaijan. Yes, this is the place in which the president recently announced the election results even before the polls opened. These are our new committed friends. We are going places. 

Kenya wishes to thank the seven members of the Security Council who voted for a deferral and is particularly grateful to Rwanda, Togo and Morocco – the three African members on the Security Council – for their exemplary leadership.

Again, the only country we should be associated with on this list is perhaps Rwanda. I wish we could do what they have done with their streets, and corruption, and ease of doing business. But by all means we should not borrow their human rights record. Oh, and please let’s stay away from their variety of democracy.

This result was not unexpected considering that consistently some of the members of the Security Council, who hold veto powers, had shown contempt for the African position. The same members and five others chose to abstain, showing clear cowardice in the face of a critical African matter, and a lack of appreciation of peace and security issues they purport to advocate.

Letting the trial go on does not threaten peace and stability in Kenya. This is an empty argument. There will not be any spontaneous violence. Furthermore, the president is not the operational commander of the KDF. He is the Commander in Chief. He gets to issue orders from some room somewhere. Orders can be issued from anywhere. And remind me again how this trial impacts security ALL OVER AFRICA, other than by raising the cost of genocidal activities by African presidents?

Oh, and did I mention that the African Union Mission in Somalia (AMISOM) is almost entirely paid for by the European Union?

Inevitably, it must be appreciated that the outcome of this vote demonstrates that the Security Council does not serve the interests of a majority of its members and is clearly in need of urgent reform. It cannot be that a few countries take decisions that go against reason and wisdom in a matter so important to nearly one billion Africans.

One billion Africans. Really? I had no idea our president was this important of a man. One billion Africans. Many of whom starve to death; or die of treatable illnesses; or never make it to their first or fifth birthday because their leaders steal all the money meant for medicine. These Africans? Why should their names be invoked to protect the same leaders that have confined them to degrading penury for the last half century? Why, I ask? 

Also, the claim that Africa is united against the ICC is false. We all know about the divisions that stalled the silly idea of a mass walkout from the ICC by African states.

The African Union, in one voice, took the unprecedented step of making a simple request to the Security Council, bearing in mind the security and stability it seeks to achieve on the continent. But the Security Council has failed to do this and humiliated the continent and its leadership.

Ahh. Now the truth comes out. It is not about the one billion Africans after all. This is about the humiliation of the African leadership. It is about protecting the sovereignty of a few inept rulers. Forget the one billion Africans. It is about their big men rulers who steal tax money and stash it away in bank accounts in the same Western countries they like to call names.

The Security Council has failed the African continent, which will have to make its own judgment in the coming days and weeks about how it wishes to engage with the Security Council, which obviously does not believe the voices of more than one quarter of its members is significant enough to warrant its serious and purposive attention.

The security council has failed African leaders. Not the African people en masse. Africans want to have elections without having to worry that voting one way or the other will result in their houses being torched or their mothers, sisters and brothers murdered or raped. They also want freedom from ignorance, disease and material want. Is that too much to ask?

The African Union’s request to the Security Council included its key resolutions at the Special Summit on the ICC. The important one for the Security Council to note was the one that categorically says that no sitting Heads of State or Government may appear before the ICC. Kenya regrets failure of important members of the UN Security Council to have due consideration of Kenya’s critical role in stabilizing the Horn of Africa and the Great Lakes regions, and their reckless abdication of global leadership.

Wait, are these important global leaders in the UNSC the same ones President Kenyatta termed as “declining powers”? What makes them important now? 

Just for the record, I am part of the 67% of Kenyans who in a recent poll were in favor of the president attending court at the Hague. Having both the president and his deputy on trial will serve a great symbolic task of demystifying the Kenyan political leadership. The demonstration effect to all politicians, voters and criminal gangs alike will be clear: You cannot kill innocent civilians and get away with it.

In my view, the best case scenario is having both men attend trial and then get a not guilty verdict.

Kenyans are nowhere near ready to discuss frankly what happened in 2007-08 or the deeper issues of ethnicity and economic disparities that often mirror ethnic lines and how to deal with these issues at the national level. A forced conversation, especially one that has a foreign touch in the form of a court verdict, may result in unpleasant consequences. This would be a less than ideal outcome, but one that would not necessarily be catastrophic for the country. The constitution is clear on succession should either one or both leaders be found guilty and jailed.

Insecurity in Kenya and the upcoming March 2013 elections

It is a mere three and a half months before the March 4th elections in Kenya and compounding the problems facing the electoral commission (which is riddled with corruption allegations and is yet to register voters) is the fact that insecurity in the country appears to be on the rise. The recent killing of at least 40 police officers in Baragoi (in northwestern Kenya) says it all. This comes just a couple of months after the Tana River massacre that left over 100 villagers and police officers dead in mid-September.

(credit: Gado)

The Tana Delta and Baragoi massacres exposed the failures of the intelligence and policing operations in the less-governed parts of Kenya (roughly the northern half and most of the east and southeast of the country). In both cases the government was caught flat-footed and unable to respond rapidly to emergent security threats.

A lot of finger pointing followed both incidents, with the police claiming that their hands were tied by strict laws on the use of force (thanks in part to the justifiably hyperactive human rights crowd in Nairobi) and the politicians blaming one another for incitement of the perpetrators of the crimes.

The latest incident in Baragoi has forced the president to order the deployment of the Kenya Defense Forces to assist in bringing to book the bandits behind the murder of dozens of policemen.

But the deployment of the security forces alone will not bring an end to the cycle of killings that have plagued Kenya in the last several months. In order to clean up the toxic mix of archaic cultural practices, local politics and economic interests, the government will have to be a little bit more broad and nuanced in its approach. What ought to be done about the cultural practices behind cattle rustling? How, if at all, are local leaders ever involved in these operations? What is the local political impact of these raids?

Which brings me back to the 2013 elections. The electoral commission has only one month beginning on Monday Nov 19 to register 18 million voters. Serious lapses in security that seem to be commonplace in large parts of the country do not inspire confidence in the agents of the commission who are supposed to traverse the whole country to build a new voter roll.

A failure to register enough voters for the election due to insecurity will de-legitimize the whole process, with dire consequences.

I hope that the electoral commission is following the investigations of these incidents of violence closely (especially since it has the power to punish those in contravention of election laws). Many Kenyans trust that the commission will be fair on election day. It is therefore not inconceivable that knowing that they won’t change the results after people have voted, crooked politicians have resorted to gerrymandering by other means – by dislocating certain pockets of voters or instigating violence to suppress voter registration and eventual turnout.

ICC Kenya case ruling and its consequences

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…

kenyan elites conspired to kill peasants in rift valley, and are getting away with it

President Kibaki’s embarrassment regarding the 2007-08 post-election violence continues. The latest information from wikileaks suggests that the top brass of the Kenyan military armed the proscribed group Mungiki which then went on to kill peasants in Kenya’s Rift Valley Province. The outgoing US Ambassador detailed to Washington how co-ethnics of Mr. Kibaki tried to arm-twist the army into providing guns and aerial support to Mungiki in their campaigns against Kalenjins in the wider Nakuru area.

In light of this new information the natural question that follows is how much Mr. Kibaki knew. I find it hard to believe that he had no clue about this. I find it harder to stomach the fact that the President of Kenya may have Ok-ed a move by some of his lieutenants to murder innocent women and children simply because they spoke a different language.

Here is an excerpt from the Standard:

In the cables published on the wikileaks website, the envoy reported he received information retired military generals from Central and Rift Valley provinces were involved in organising militias that were meant to play a bigger role in the violence.

Ranneberger identified a former commandant of the National Defence College as the main player in the deadly plot. “At one time he put pressure on serving military generals to arm the outlawed Mungiki sect with G3 rifles, and also provide them with helicopter support,” read part of the cables.

In one cable titled ‘Kikuyus Not Afraid to Strike Back’ Ranneberger quoted sources claiming elements of the “Kikuyu-dominated Party of National Unity (PNU)” were backing the so-called “Forest Guard” militia, which included members of banned Mungiki sect.

“He (name withheld) has reportedly put pressure on the current Kenya Army Commander, Lieutenant General Augustine Njoroge to release G3 rifles and provide helicopter support to the Forest Guard,” read part of the cable.

Lt Gen Augustine Njoroge has since left the force and is now Kenya’s Ambassador to Israel. It is not clear if he executed orders from his superior.

The cable claimed the Lieutenant General in question was assisted in his efforts by a retired Brigadier General who was “acting as Chief of Staff for the effort”. The name of the former presidential aide-de-camp has also been withheld for legal reasons.

The ambassador further wrote Mungiki was receiving funding from two businessmen, one of them based in Muthaiga.

ruto’s attempts to slow down icc process rejected

Embattled Kenyan politician William Ruto’s attempt to stop the ICC prosecutor Moreno Ocampo from issuing summons against him have hit a snag.

The three judge panel at the ICC rejected Mr. Ruto’s claim that Mr. Ocampo did not conduct proper investigations but instead relied on findings and reports by interested parties in Kenya, including the Waki Commission and the Kenya National Commission on Human Rights.

Mr. Ruto has been adversely mentioned by Mr. Ocampo’s office – along with five others – as a key mastermind of the violence that rocked parts of Kenya following disputed elections in 2007. More than 1300 people died and hundreds of thousands were displaced. Most of the displaced still live in makeshift tents in IDP camps.

More on this here.

william ruto suspended from cabinet

The road to Rule of Law in Kenya is just beginning to take shape. For sure, politicians will continue to flout the constitution but things are no longer the same. Today, as required by law, President Kibaki suspended higher education minister Hon. William Ruto because of the latter’s pending criminal trial over a fraudulent land deal. Section 62 of the Anti-corruption and Economic Crimes Act states: “a public office charged with corruption or economic crime shall be suspended at half pay, with effect from the date of the charge.”

Given the stature of Mr. Ruto as the ethnic chief de facto political leader of the vast Rift Valley Province, this is a big deal.

The next big test for how committed the ruling class in Kenya is committed to the Rule of Law will be when Ocampo and the ICC come calling with arrest warrants later in the year or early next year. Bigwigs in cabinet and close confidants of both the president and his prime minister are expected to be among those indicted.

the ostrich way is the wrong way

Agriculture minister William Ruto (the de facto political leader of the Rift Valley Province) has dismissed reports of an ethnic arms race in his backyard as mere rumors. George Saitoti, the minister for internal security has equally dismissed the same reports.

I understand that the government is trying to show that it is in charge and that in fact there is not a widespread arms race in the Rift Valley – the area worst affected by the post-election violence of last year. An admission from the government might cause even more anxiety and force even the otherwise pacific parts of the population to seek guns. That said, I hope that these public denials are mere PR and that the government in actuality is lookin into the issue with a view of stopping the proliferation of small arms in the area and possibly arresting and prosecuting the arms-traffickers (hey, don’t judge. I am allowed to fantasize once in a while).

kenyan ethnic groups arming ahead of 2012

I just read this on the BBC and can’t stop wishing that it is all hype. The report quotes a number of Kenyans – mostly from the Rift Valley – who seem to be acknowledging that segments of the Kenyan population are arming ahead of the 2012 elections. And this time round instead of machetes and bows and arrows they are getting guns, machine guns. A Kenyan working for an NGO in Eldoret confirmed the BBC report.

I am assuming, or rather hoping that the Kenyan intelligence community is not sleeping on the job like they did in the run-up to the 2007 elections. If people are buying machine guns it can only mean one thing. If Kenya is ever to have a civil war it will be fought in the Rift Valley. Other political conflicts in Kenya have always been over the sharing of divisible goods – mainly payoffs in terms of good jobs and chances for sleaze among the many ethnic entrepreneurs that populate the Kenyan political landscape. But the conflict in the Rift Valley will be about a somewhat indivisible good – LAND. Those that own the land will not let go or share it easily, more so if they have machine guns. And those that think that the land was taken from them wrongly will perhaps  also be willing to fight for the land, more so if they also have machine guns.

The contest in 2012 just seems to get messier and messier. Kibaki should consider calling a snap election and then stepping down. That may catch the plotters unawares and bring a decisive victory to one party or the other. May be then the government will be able to deal with all these issues – land, judicial reforms, security etc – without the many distractions that the current government faces.

And in other news, Jaindi Kisero (one of my favorite columnists) has a piece on the slightly positive signs the Kenyan economy has shown so far. If only the nation’s political class would get its act togehter…

I also found this discussion on the IMF and WB interesting.

One, more thing.  Last week I attended a talk by Paul Romer on Charter cities. The idea is as exciting as it is provocative. I still don’t know what to make of it though. Read more about it here.

politics gets in the way of justice, again

The Kenyan cabinet yesterday decided not to set up a local tribunal to try those who organized the targeted killings of people who spoke certain languages (but lived in the “wrong” places) after the bungled general elections of late 2007. Instead, in an effort to assuage the fears of a hostile parliament, the president and his cabinet decided to clean up the police force and the judiciary and have these organs try the said suspects. Yeah right.

My doubts of the cabinet’s intentions are premised on the fact that reforming the police force and the judiciary will not take a few months. The police force is the most corrupt institution in this country. Reforming it will take years. Same with the judiciary. If we are to wait for the police and judges to stop taking bribes and begin respecting the rule of law before we initiate the prosecution process then we might as well forget about the whole thing.

I remain deeply skeptical of President Kibaki’s commitment to making sure that those who organized the killing of more than 1300 Kenyans be brought to book. If he really means what he said yesterday then he should begin by firing Attorney General Amos Wako. This is a man who has been in that position through the tortures of the Moi era, the killings that preceded the 1997 general elections, and a myriad corruption scandals (including the mother of all, Goldenberg) without ever bringing any prominent player to book. Mr. Wako has been as effective as a parachute that deploys on the second bounce and should be shown the door, no questions asked.

It was always going to be difficult to bring the oafish  ethnic chiefs masquerading as patriots to book. Yesterday was a stark reminder to all Kenyans that justice is political and that if change doesn’t come soon the powerful will continue doing what they want and leave the weak to suffer what they must.

the mau list of shame

Prime Minister Raila Odinga has tabled in parliament a list of those who acquired land in the Mau based on their well-connectedness with the government. Top of the list are those closely associated with former president Moi – including his son and former Baringo Central MP Gideon. The task force on the Mau issued a report that claimed that 80% of the titles to the land in Mau were issued to undeserving people.

I like this dose of transparency from the Prime Minister (Although for good practice he should have made the list public as soon as he got it in order to allow for a more mature progression of the eviction debate). My hope now is that Kenyans will realise exactly what the interests of those against the government directive to conserve the forest are. Indeed if I had it my way, the millionaires who unlawfully acquired public land should be made to pay a fine.

The popular consensus seems to be that the government should compensate the regular “wananchi” who have titles and who unknowingly legally bought illegally acquired land. But the “wenyenchi” who grabbed public land should not be given a cent. Shame on them.

And on a different note, kudos to the Kenya Revenue Authority. I was surprised that I was able to get my pin number online. The first time I tried getting one I had to wait in line at Times Tower and left because the line did not move for the more than 45 minutes that I was there. My only problem now is that I can’t seem to be able to print my pin number certificate. Anyone with a clue?