Judges reject kenya’s bid to stop icc case

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 next for the kenyan political class?

The truth of the matter is that the whole political class in Kenya is implicated in the murder of 1300 people and the displacement of hundreds of thousands following the post-election violence of 2007-08. Their continued contempt of the ordinary mwananchi is evident in the fact that three years on the displaced still live in IDP camps littered across the country. The lack of widespread moral outrage at this fact speaks boatloads about Kenyans’ moral character.

The ICC appears to be closing on the “Ocampo six” – individuals identified by the ICC prosecutor Moreno Ocampo as most culpable at the highest level for the violence that rocked parts of the Rift Valley in early 2008. An ICC pre-trial chamber ruled yesterday that there is evidence to suggest that six prominent Kenyans are criminally responsible for crimes against humanity committed in 2007-08. The six include Finance Minister Uhuru Kenyatta, Cabinet Secretary Francis Muthaura, former Commissioner of Police Hussein Ali, former ministers Henry Kosgei and William Ruto and radio personality Peter Sang.

After the 2007 general elections Kalenjin speaking supporters of Raila Odinga attempted to drive out members of the “Kikuyu diaspora” in the Rift Valley Province, the “ethnic homeland” of the Kalenjin. Raila’s opponent in elections, President Kibaki, is a Kikuyu. It is suspected that local ethnic leaders, including William Ruto, Henry Kosgei and Peter Sang, were in charge of directing these attacks. In the most gruesome episode in Kenya’s darkest hour mobs locked ethnic Kikuyu women and children in an Eldoret church and set it on fire. More than 30 perished. Kikuyu elites, allegedly lead by Finance Minister Uhuru Kenyatta and Cabinet Secretary Francis Muthaura, retaliated by mobilizing the proscribed Mungiki gang to carry out reprisal attacks. It is also alleged that the former Police Commissioner, Hussein Ali, conspired to keep the police off Mungiku’s back. Hundreds of ethnic Kalenjins and Luos, among other supporters of Raila Odinga, were killed or uprooted from their homes in Nakuru and Naivasha.

Ever since the announcement by the ICC prosecutor that he would go after the six a radically political realignment has taken place in the country. William Ruto and Henry Kosgei ditched the party led by Raila Odinga and joined alliances with Uhuru Kenyatta to oppose the ICC indictment. President Kibaki, who at the beginning appeared to be willing to throw Uhuru under the bus, also became wary of the ICC after his chief lieutenant Muthaura was named as a key suspect. Presently, Vice President Kalonzo Musyoka has embarked on a “shuttle diplomacy” mission to convince African leaders and the P5 of the UN security council to lean on the ICC to defer the charges against the Ocampo six. Many African leaders, given their own records at home, have supported the initiative. But the mission at the security council hit a snag yesterday when US representatives indicated that they will veto any attempts at deferral.

What then for Kenyan politics? Any analysis must focus on the Kibaki succession. President Kibaki is term-limited and must step down in 2012. Two members of the Ocampo six – Uhuru and Ruto – are key players in the succession game. If the two are convicted Raila Odinga stands to gain the most. But it all depends on what alliances ensue following such an eventuality. Uhuru and Ruto might remotely throw their weight behind Vice President Musyoka to enable the latter to capture State House. Indeed, the three have publicly declared to be members of the (unfortunately named) KKK alliance (the three are from Kikuyu, Kalenjin and Kamba ethnic groups, respectively). The more likely scenario, however, is that the Kikuyu and Kalenjin communities will experience internal fractures once their key ethnic chiefs are out of the game. Uhuru is already facing an insurgency led by the fire-breathing former Justice Minister Martha Karua. Ruto has maintained a facade of unity in his ethnic bloc but money can do wonders in Kenyan politics, and his potential detractors among the Kalenjin – including a son of former President Moi – have wheelbarrows of it.

In short, everything is in flux right now. The substantive reaction of the political class – beyond the shouting match that is currently underway – will only be apparent when parliament resumes in a few weeks. Lawmakers need to pass crucial laws needed to implement a new constitution that was ratified last August. The breakdown of the voting patterns will almost inevitably show some nascent realignment. Like the wikileaks records of Kenyan politicians bad-mouthing one another to low-level US embassy officials have shown, Kenyan politicians are an incorrigibly unprincipled bunch who will not hesitate to jump ship if they realize that their party leader is in trouble.

The political temperature in Kenya will no doubt go up in the next few days. The unfortunate thing in all this is that the hullabaloo is will continue to be a distraction from the fact that 1300 innocent KENYANS died and hundreds of thousands were displaced in 2007-08.