The ICC’s case against Uhuru Kenyatta

Following the collapse of the case against President Uhuru Kenyatta of Kenya, ICC prosecutor Fatou Bensouda made public her case against Mr. Kenyatta for his alleged role in the 2007-08 post-election violence in Kenya. More than 1300 people died and 300,000 were displaced.

You can find the public [redacted] version of the prosecution pre-trial brief here.

UPDATE: And here is the defence’s response.

Most read posts in 2014

Here are the top posts in 2014

1. Corruption under apartheid South Africa: This post was top partly because of the 2014 South African elections. More on the legacies of apartheid era corruption and rent-seeking in South Africa here.

2. Kenya Security Laws (Amendment) Bill 2014: This bill (now an Act of Parliament) is further evidence of Uhuru Kenyatta’s autocratic tendencies. I personally don’t think that he is an incarnation of Moi or other dictators of years gone. Rather, Mr. Kenyatta is a poor administrator who likes taking shortcuts to get quick results. As I argued in a related post, the Security Laws (Amendment) Act 2014 could potentially severely limit civil liberties in Kenya.

3. Did European Colonialism Benefit Africans? The popularity of this post is perhaps a reminder that more research is needed on the long-run effects of colonialism not just in Africa but in other formerly colonized places as well. So far all the literature tells us is that colonialism was bad, but that the Western institutions that Europeans spread around the globe are good. More recently we’ve seen evidence that pre-colonial institutions in the colonies were pretty resilient in the face of colonial intrusion; and have had lasting effects (also remember that the duration and intensity of colonialism varied widely across the globe). One avenue of research that I have been exploring is how pre-colonial institutions interacted with colonial administrations, and how this shaped the institutions that emerged out of the independence wave of the early 1960s. More on this in the new year.

4. Why Raila Odinga Lost: A sizable proportion of Kenyans still believe that Odinga was robbed in the March 2013 election in Kenya. I disagree. In my own projections on this blog – merging disaggregated opinion polls with historical district turnout rates (perks of having a case with tight ethnic voting) – I found Mr. Kenyatta to be ahead of Mr. Odinga by about 740,000 votes, or 7.2 percentage points (which was close to the final official figure of 6.7% difference between the two).

I don’t think that Kenyatta won in the first round, but do believe that we would have trounced Odinga in a runoff anyway. Which is why I have never come to terms with the unanimous Supreme Court decision granting Kenyatta victory on the basis of less than 9000 votes out of 12.3 million cast.

5. Understanding Uganda’s Military Adventurism Under Museveni: General President Museveni has managed to create an image of himself as the anti-terror hatchet man in the wider horn of Africa region. Ugandan troops are the backbone of the AU mission in Somalia (AMISOM). Since his triumphant entry into Kampala in 1986 Museveni has also been involved in conflicts in Rwanda, the DRC, Sudan, C.A.R, and more recently South Sudan. Because of the degree of militarization of the Ugandan state and recent public displays of intra-elite friction, I think Uganda will continue to inch up in the coup sweepstakes ahead of the 2016 election.

Kenya Security Laws (Amendment) Act, 2014

President Uhuru Kenyatta assented to the Security Laws (Amendment) Act, 2014 (archived pdf here). Despite widespread opposition from a large section of the Kenyan public, amendments therein are now the law of the land. The law itself is a mixed bag. There are some good parts that are meant to streamline the criminal justice system. But there are other parts that will certainly be abused by politicians and over-eager security agents, and could lead to a drastic reduction of civil liberties in Kenya.

This is how the bill was passed:

Members of Parliament and Sergeants-at-Arms guard House Speaker Justin Muturi as he reads the motion to pass to the bill.

Civil Society groups in Kenya, and a section of Members of Parliament, have vowed to challenge the constitutionality of the Act in court.

Will the challenge succeed? The simple answer is I don’t know. The Kenyan Supreme Court leans to the right, and is likely to defer to the executive (and its allies in the legislature) on matters related to security. Plus my bet is that if you polled the law a good chunk of Kenyans would support it. It targets “terrorists” and “criminals.” The mainstream churches in Kenya have also come out in strong support, in no small part because suspected terrorists have made a habit of attacking packed churches along the Kenyan coast.

The judicial review process is unlikely to set aside the entire statute. The petitioners will be better served to focus on key clauses that are unconstitutional and ask the judges to strike those out. But I should reiterate that the judges are likely to defer to Parliament and the executive on this one.

From a legislative studies perspective, what is worrying is that in order to get the law passed  State House essentially told the National Assembly, “Trust me. I need these powers to secure Kenyan lives and property. And I will not abuse them. Trust me.” And then Parliament capitulated. There was no debate over the State’s total failure to use existing laws to prevent and/or deter crime. Or the corruption and gross ineptitude that ails the security sector. Instead the executive was rewarded with even more power, secrecy, and ability to silence criticism from the media. All open to cynical abuse.

What Parliament forgot is that that there are no good politicians; only constrained ones. And that if unchecked anyone and everyone will abuse power. It doesn’t matter whether they are Pol Pot or the Pope.

Kenya Security Laws (Amendment) Bill 2014

Here is a pdf copy of the Kenya Security Laws (Amendment) Bill 2014.

The proposed amendments will, broadly speaking, curtail the freedom of speech and association, and limit media coverage of security related stories. They will also cut into the independence of the Kenya Police Service by granting the president the powers to appoint and fire the Inspector General of Police. Presently an independent commission picks a list of candidates from which the president chooses the IG. Lastly, the law promises to resurrect the position of the all powerful internal security minister with broad discretionary powers.

All in the name of keeping Kenyans safe from foreign terrorists, and themselves.

There are a few good things in the proposed law, including the sections that clarify the roles of the office of the Attorney General and the Director of Public Prosecutions (DPP); and those that limit judges’ discretion in the handling of cases involving terror suspects.

Despite the dubious constitutionality of some clauses in the bill, I bet a majority of Kenyans would support it in a poll. For that we have to thank the recent uptick in terror attacks and fatal communal conflicts. This year alone hundreds of Kenyans have died from such attacks.

That said, if you ask me the problem of insecurity in Kenya is not simply a result of restrictive laws that limit the government’s ability to pursue and prosecute criminals. It is a problem of a corrupt police force that takes bribes from petty criminals, poachers, drug dealers, and terrorists, alike. It is a problem of an increasingly unaccountable intelligence and military securocracy that is both fighting jihadists in Somalia and trafficking in charcoal and other goods, the proceeds of which benefit the same jihadists. It is a problem of an ineffectual intelligence service that instead of diligently doing its homework prefers to carry water for foreign agencies, regardless of the domestic consequences.

And finally, it is a problem of an elite political class that wants to have its cake and eat it. They want a criminal justice system that protects those who steal from public coffers but punishes chicken thieves. A system that protects poachers and drug dealers but nabs terrorists and armed robbers. At some point something will have to give.

Iko shida.

This is huge >> ICC drops case against Uhuru Kenyatta

The ICC prosecutor has dropped the charges against President Uhuru Kenyatta, citing the lack of evidence due to non-cooperation by the Kenyan government. Mr. Kenyatta stood accused of playing a significant role in the 2007-08 post-election violence in Kenya in which at least 1300 people died and over 300,000 were displaced.

Four quick observations.

  • The Kenyan case was always going to be a tough one for the ICC. Kenya is neither the DRC nor Sudan. As soon as Kenyatta got elected Brussels, London, and Washington made it clear that they would not sacrifice their economic and geopolitical interests in the wider eastern Africa region on the alter of justice. This gave Mr. Kenyatta latitude to attack the legitimacy and legality of the ICC case against him both through the African Union (AU) and Kenyan diplomatic channels. Back in Kenya witnesses disappeared or withdrew their testimonies. The Office of the Prosecutor repeatedly said that the Kenyan state refused to hand over evidence relevant to the Kenyatta case. All this while Western embassies remained quiet about the case (for fear of “losing” Kenya to China).
  • This leads me to conclude that in a perverse way, the collapse of the Kenyatta case might actually be good for the ICC. The court (and OTP) can save face by arguing that they had the authority to prosecute the case but lacked cooperation from the Kenyan state. Now, the biggest challenge for everyone involved is how to ensure that this does not get interpreted as blanket immunity for all sitting presidents who are suspected of committing atrocities against their citizens. The deterrent effect of the ICC should be preserved.
  • The collapse of the case has interesting implications for Kenya’s domestic politics. It is common knowledge that the political union between President Kenyatta and Deputy President Ruto ahead of the 2013 election was primarily driven by their ICC cases. Mr. Kenyatta’s case has collapsed. Mr. Ruto’s is ongoing. This will diminish Mr. Ruto’s bargaining power in the alliance. It will also demand for Kenyatta’s allies to walk a tight rope and ensure that they do not signal to Ruto’s supporters that they no longer need them now that Kenyatta is off the hook. Ruto’s bloc, URP, has the second largest number of MPs in the National Assembly. This will give him leverage of some sort, even as his case goes on. Simply stated, without the ICC bond, the union between Kenyatta and Ruto will become more transactional. This means that mistakes will be made, and each side will have to try hard to ensure that disagreements over specific issues do not get blown out of proportion. Knowing Kenyan MPs, this will be a tall order.
  • Lastly, now that the ICC is behind him President Kenyatta might actually seriously tackle the issue of insecurity in Kenya. It is widely known that since he took office his approach to security matters has been informed by the desire to rid his administration of anyone who might have been sympathetic to the ICC. The former chief of intelligence (who may have played a role in “fixing” both Kenyatta and Ruto) and other senior officials who may have testified against him were let go. It took the slaughter of more than 450 Kenyans at the hands of terrorists and armed bandits over the last 18 months for the president to fire the chief of Police and the Cabinet Secretary in charge of internal security. One can only hope that now Kenyans will get a more responsive security sector.

What does this mean for reconciliation in Kenya? Not much. 2007-08 shattered the myth of Kenya as a peaceful oasis in an otherwise volatile region. Kenyans are yet to comprehensively deal with the shock of seeing what neighbors could do to one another. The preferred MO has been to sweep things under the rug. That was the logic of the Kenyatta-Ruto alliance (the land issues that erupted in clashes between their respective constituencies have not been resolved). It is the same logic that drove the peace-at-all-costs campaign that stifled open discussion of contentious national issues ahead of the 2013 election.

For better or worse, Kenyans are desperate to move on past 2007-08. But the weight of historical injustices, inequalities, and the continued failure to address them are constant reminders that 2007-08 might happen again.

What’s African about unalloyed misogyny?

The just passed marriage bill is unambiguously the most offensive idea to come out of the 11th Parliament yet. According to the BBC:

MP Samuel Chepkong’a, who proposed the amendment, said that when a woman got married under customary law, she understood that the marriage was open to polygamy, so no consultation was necessary, Kenya’s Daily Nation newspaper reports.

Mohammed Junet, an MP representing a constituency from the western Nyanza province, agreed.

“When you marry an African woman, she must know the second one is on the way and a third wife… this is Africa,”

This is Grade A horse manure.

President Kenyatta should veto this bill. And the group of Kenyan MPs who think that disempowering women is a smart idea are advised to watch the video below of President Kibaki at a press conference ostensibly to confirm to Kenyans that he has ONLY ONE WIFE, following rumors to the contrary [More here].

Also, Mr. Kenyatta should require that before he assents to the bill it must expressly forbid dabbling in both civil and “customary” marriages because the resultant legal arbitrage only benefits men. SOMEONE TELL ME, WHY DO WE NEED A DUAL SYSTEM ANYWAY??? A woman entering a civil marriage should have the guarantee that it will always remain so, with stiff penalties for men who violate the contract. The provisions for Muslims have always been clear and should remain so.

And just for good measure, they should also hear what Chimanda has to say about gender relations:

More on the unbelievably sophomoric debate on this matter in the National Assembly here.

Mapping Nairobi’s Informal Transit System

Researchers and students at the University of Nairobi, the Center for Sustainable Urban Development at Columbia University, and the Civic Data Design Lab at MIT produced the map below – and the underlying data behind it – after carrying cell phones and GPS devices along every route in the network. Result? There is order to Nairobi’s seemingly chaotic matatu industry.

Pretty cool stuff. 

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 More here.

H/T Amanda R.

A very short political history of Kenya: HAPPY JAMUHURI DAY!!!

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Financial Times reporting on the creation of the Kenya Colony

Kenya is 50 today. Or 93 if you take the Order in Council of July 1920 creating the Kenya Colony to be the founding instance of the geographical entity that became Kenya (well, most of its land anyway. The coastal strip was then still a property of the Sultan of Zanzibar). I would actually suggest a different date, 1907, to be the instance when the Kenyan state opened shop. This is when the first rudimentary legislature was established (in Nairobi) within the East African Protectorate, thereby enabling settlers, and by extension indigenous Kenyans, a little more say on government policy. Yes, you are very right in thinking that this view has nothing to do with the fact that I am writing my dissertation on African legislatures.

Direct representation came in 1944 with Eliud Mathu, but settler demands brought to the fore issues of the welfare of indigenous Kenyans as well. It was unlike the IBEAC days when the locals had almost no say at all. Speaking of the IBEAC, you could make the argument that Kenya is actually 118 – going by the date, 1895, when IBEAC officially handed over the managed of British East Africa to the Foreign Office.

Anyway, since much of the period between 1895 and 1963 was marked by the exclusion of the vast majority of indigenous Kenyans form the political process let’s take 1963 as the starting point. However, the significance of the other dates shouldn’t be lost on us. Kenyan history did not begin in 1895 or at midnight on December 12th 1963. This account will be brief. Feel free to add to it in the comments section.

Independence in 1963 came on the heels of a brief period of partial self-government. Official history taught in schools puts President Jomo Kenyatta as the first indigenous leader of government. Most Kenyans don’t know that Ronald Ngala was official leader of government business in the LEGCO and even became Chief Minister. At the time Kenyatta was in prison, KANU had just won elections but refused to form a government until Kenyatta was released from prison. Back in 1958 Jaramogi Oginga Odinga had adamantly insisted in the LEGCO that “Kenyatta Tosha” [my own rendition] and that a precondition for independence and self government was the release of Kenyatta from prison.

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Kenyatta with Odinga and Mboya

When Kenyatta was released from prison he found two dominant parties, KADU and KANU. Both tried to persuade him to be their chairman since it was clear that whoever had Kenyatta on their side would win the independence elections (Daniel arap Moi, a KADU man, had even visited Kenyatta in Kapenguria). Because of interests (especially around land; KADU was then perceived as a tool of the settler community) and historical reasons (James Gichuru, a KAU man, was a founder member of KANU) Kenyatta chose KANU over KADU. At independence he inherited a state that was dominated by the Civil Service and Provincial Administration. Kenyatta kept this intact. Sons of collaborators who hunted down the Mau Mau inherited the colonial state. Unlike in many African countries where independence brought about a steep discontinuity – think about Guinea, for instance – in Kenya there was a good amount of continuity.

It was almost as if the Ashanti aristocracy and colonial era collaborators had inherited the reigns of power in the Gold Coast in 1957 and not the outsider mass mobilizer, Kwame Nkrumah; Or the Kabaka, instead of Obote, had inherited power in Uganda in 1962.

The nature of colonial transition explains Kenya’s political stability and reasonable economic success since independence (at least compared to its African peers). It is Sub-Saharan Africa’s biggest non-mineral economy and has never experienced a successful military coup (though attempts were made in 1971 and 1982).

Kenya is a lesson on the difference state capacity can make. Any attempts at separatist armed struggle – from the Shifta War, to the Sabaot Land Defense Force, to the Mombasa Republican Council – have been crushed (sometimes with foreign help). Civilian insecurity is a serious problem that is getting worse. But the state is not one that can be toppled by bands of armed men on technicals (see here (pdf) for reasons as to why).

The country got a stable start (and many may argue normatively unjust system) because the indigenous upper class inherited the economy and a strong and moderately developed state (largely because of the need to defeat the Mau Mau insurgency) almost intact. Individuals close to Kenyatta took over settler farms almost intact. The last British Officer in the Kenyan military left in the 1970s. The social foundation of the state ensured continuity (redistribution of land to the masses was a non-starter) and the inherited strong bureaucratic-state had the capacity to suppress any form of dissent (of course starting with ex-Mau Mau freedom fighters who demanded for a greater degree of land redistribution). It also helped that Kenyatta and his close associates were from Central Kenya, the economic heart of the country.

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Snapshot of the triumph of conservatism: Kenya’s Four Presidents, Kenyatta I, Kenyatta II, Kibaki and Moi

The confluence of economic and political power (in Kenyatta and his close co-ethnics) made redistributive policies unworkable. As Bates has ably argued, this explains the great investments that the Kenyan state made in agriculture. This also explains why Kenya never flirted with socialism, unlike nearly all of its African (Ghana again being a good example) peers. Leftist elements within KANU lost out in 1966.

Even among the Kenyan public, the idea of individual ownership of property – and especially land – had become accepted as sacrosanct. Many had come to a pragmatic acceptance of inequality as a feature of life. It was OK for the big men to appropriate thousands of acres of land as long as ordinary families got a few acres for their own use. Right from the beginning, prevailing socio-economic conditions and the attitudes of politically relevant groups made it easy for the conservative ruling class to pursue right of center economic policies. There was no land revolution in the 1960s.

When Kenyatta died in 1978 a lot of things had gone wrong. Many freedom fighters had been neglected by the very people who collaborated with the colonial administration and who now had control over the state. Negative ethnicity had irredeemably corrupted the state and made Kenyatta’s co-ethnic unwilling to share state power or wealth with non co-ethnics. Pio Gama Pinto, an active backbencher in Parliament was assassinated in 1965. Tom Mboya, a charismatic likely successor to Kenyatta was assassinated in 1969. Josiah Mwangi Kariuki, a populist co-ethnic of the president who advocated for more redistributive policies, was also assassinated in 1975. The main opposition party had been banned in 1969. A raft of constitutional amendments had destroyed the regionalist structure of the Kenyan government and centralized power in the hands of the president.

But even at the most trying of times, twice in 1969 (the assassination of Mboya, the riots in Kisumu during a Kenyatta visit and the subsequent banning of the main opposition party KPU) and again in 1975 (following the murder of J. M. Kariuki), the Kenyan state held strong. Order was restored. For better or worse conservatism triumphed over populism and radicalism.

Moi’s succession brought new hope; like all good future dictators he started off by releasing political prisoners of his predecessor. But his security of tenure was never a given. He barely survived attempts to exclude him from succeeding the president as required by law. My own reading of the situation is that a key factor in the lawful succession in August 1978 was Charles Njonjo, the unashamedly Anglophile son of a colonial era chief from Kabete (some call him Sir Charles, others the Duke of Kabeteshire). As the Attorney General Njonjo probably eyed the presidency. Yet he wanted to get there lawfully. Moi was his way of outfoxing the Mungai-Koinange. Njonjo, like all good Kenyans, had internalized whatAtieno-Odhiambo calls the country’s pervasive “ideology of order.” Moi probably knew this. And the fact that there was an intra-Kikuyu split along the flow of River Chania. The Kenyatta presidency was a mostly Kiambu affair. Nyeri Kikuyu (who bore the brunt of the Mau Mau insurgency and counterinsurgency were largely excluded). Moi appointed a Nyeri man, Mwai Kibaki as Vice President. For good measure, he kept Njonjo – well until he got rid of him in 1985.

Daniel Toroitich arap Moi, a man that many in Kenyatta’s inner circle had viewed as a passing cloud, then went on to rule Kenya for 24 years. As an outsider his rule was marked by redistribution (as in the District Focus for Rural Development, gated); an attempt at greater control of the political sphere (he turned Kenya into a party-state); and poor economic performance (Kenya’s dominant economic group was excluded from political power). The coup attempt in 1982 was a reaction to Moi’s controlling tendencies. Earlier in the year he had engineered a change in the constitution to make Kenya a one party state. By 1990 a combination of economic collapse and increasing popular resentment made political liberalization inevitable (it also helped that democracy promotion by Western governments became sexy).

The most high profile political assassination during Moi’s rule was that of Robert Ouko in February 1990. Initially the government tried to suggest that the Foreign Minister committed suicide by shooting himself in the head, breaking his legs, and setting himself on fire. He then somehow found himself atop Got Alila where his remains were recovered by a herds-boy. Like all the high profile  political assassinations before it, it is not clear whether this was a result of intra-palace rivalry or whether it was conducted on the orders of the Big Man.

Despite his many faults, Moi maintained the hold of the center. He saved the elite around Kenyatta from self-destructing by refusing to share power and wealth. More crucially, under Moi order continued to be a key pursuit of the state. In other words Kenya did not fall apart under the pressure of demands for political reform like most of its African peers did.

Multipartyism was reintroduced and elections held in 1992. Moi survived with 36% of the vote. The opposition was divided. Their only victory was getting Moi to concede to term limits. Worst case scenario the man would only be in power until 2002.

ImageMoi retired after the 2002 election. In that year Mwai Kibaki won in a landslide, defeating current President Uhuru Kenyatta. The Kibaki presidency brought success and decline in equal measure. The economic consequences of the Kibaki presidency were largely positive. Kenyans acquired greater freedoms. It became OK to hurl abuses at the head of state without risking torture. The 2010 Constitution was enacted under Kibaki. But it is also under Kibaki that the country almost descended into civil war in 2007-08 following the rigged 2007 elections. Corruption and the ethnicization of state administration continued unabated. The euphoria and hope for genuine reform that marked the 2002 transition varnished. Earlier this year Kibaki retired to be succeeded by Uhuru Kenyatta, effectively bringing to power a significant portion of the group that lost the 2002 presidential election.

Moi was Kenyatta’s vice president, Kibaki was Moi’s vice president. President Uhuru Kenyatta is the son Kenya’s founding father.

As is implied by this account, the political history of Kenya has tended to revolve around key personalities, and the presidency. One defining characteristic of the Kenyan saga is the invariable triumph of conservatism over radicalism and progressivism. Great progressives from Pinto to Oginga Odinga, to Bildad Kaggia to J. M. Kariuki to Raila Odinga have fought hard and long to improve the lives of ordinary Kenyans. But the empire always strikes back. And wins. The Kenyan story is one of the triumph of conservatism over progressivism.

Moving forward, it will be interesting to see how the new institutions created by the 2010 Constitution evolve. The Kenyan legislature is strong and continues to evolve (be sure to read my dissertation and book on this); the system of county governments will definitely chip away at the hitherto cohesive bureaucratic-administrative state; and the desire for rapid development and the management of economic equality will raise new problems of the conservative core of the Kenyan state. Will the centre continue to hold? Will Kenya continue to be economically center-right despite freer elections?

On Kenya’s diplomatic delusion

So far the ICC question has been the singular preoccupation of the Kenyatta administration. It appears that the Kenyan government is willing to pull out all the stops to halt the cases against the president and his deputy. Sadly, instead of a sober approach to the process of doing so, Nairobi has chosen to antagonize both the Hague Court and the West.

As I have argued before, Kenya has leverage vis-a-vis the West (security in the Horn and Somalia in particular; its status as host to regional diplomatic and aid efforts; and role as the biggest economy and potential gateway to the region) that it can use in a smart way to get concessions from Washington, London and Paris on key issues. Rather than wish for a restructured P5 (see post below), Nairobi should think of how to get its way with the current one.

Instead of the misguided chest-thumping about hollow sovereignty in a Chinese built conference hall in Addis under the banner of an organization partly funded by the EU, Nairobi could have chosen a different path.

Writing in the Daily Nation, Paul Mwangi, in a nutshell describes what is wrong with Kenya’s current approach to international diplomacy (Must read, more here):

The reality is that gone are the days when we were the “island of peace” in an unpredictable and violent part of the world. Over time, the world around us has changed, but we are yet to wake up and smell the coffee. Ethiopia is no longer in civil war and is quickly becoming a better investment opportunity for manufacturers both due to the low price of its electricity and the size of its population, about 90 million people. It is one of the fastest-growing economies in the world.

Tanzania is no longer socialist and is now the darling of America. Apart from its own vast mineral, oil and gas deposits, Tanzania is the new gateway to the DRC and is receiving mammoth investment from both China and America. China is building what is being called a “mega port” for Tanzania at Bagamoyo, which is more than 30 times the size of Mombasa, as part of a $10 billion investment package for Tanzania. When completed, it is bound to take away all central Africa business from Mombasa port, which will be left to serve only Kenya and Uganda.

……. Let us stop comparing ourselves with other countries. The painful truth is that Kenya is not Syria. In the Middle East, Syria is the only foothold for China and Russia. The rest of the countries are either fundamentalist or pro-Western. In Africa, China and Russia are spoilt for even better choices.

They will only go so far to help us out [Indeed some have started asking of the Afro-Chinese engagement has peaked].

The complete madness lack of tact that Mr. Mwangi points out will no doubt be on display this afternoon as the National Assembly debates Kenya-UK relations (Recently Kenyan MPs allied to the president have chosen to prove their loyalty by taking extreme positions on the ICC issue). This comes in the wake of the UK’s support of an amendment of the ICC statutes to allow President Kenyatta and his deputy to attend their trials via video-link; and stated opposition to granting sitting presidents full immunity from any prosecution under international law while in office as has been demanded by Kenya. The hurdle remains high for the Kenyan (AU) amendment proposals to the Assembly of Member States, especially after it emerged that 9 African states may not be illegible to vote on account of not having paid their dues.

According to a recent poll, 67% of Kenyans are of the opinion that President Kenyatta should attend trial at the Hague in person to clear his name.

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.