Kenya: Hague Ruling Will Test Nation’s Judiciary

African Arguments (London)

Ken Opalo

24 January 2012


On 23rd January 2012 a panel of judges at the ICC (International Criminal Court) announced a majority decision that four Kenyans, part of the so-called Ocampo Six, will face charges of crimes against humanity, murder, rape, forcible expulsion and other inhumane acts. The four include Deputy Prime Minister and Finance Minister Uhuru Kenyatta, suspended Higher Education Minister William Ruto, the head of the public service Francis Muthaura and radio presenter Joshua Sang.

Announcing the decision, Judge Ekaterina Trendafilova of Bulgaria was quick to point out that this is only the beginning of an elaborate trial process, with the accused still presumed innocent and not barred from holding public office in Kenya. The first pre-trial hearing will be in September 2012. The four accused have the right to appeal the decision of the three person pre-trial chamber.

The reactions of Kenyan politicians to the ruling were predictably quick. All four accused issued statements expressing their intention to appeal the ICC ruling. Uhuru Kenyatta and William Ruto, two declared presidential candidates, reaffirmed their intention to run for the top job in the next general elections. In his reaction to the ruling, President Kibaki asked the Attorney General to form a legal committee to draft a coherent government response. Vice President Kalonzo Musyoka expressed solidarity with the accused (Musyoka was the face of the ill-fated attempts last year to lobby the Africa Union and the United Nations Security Council to refer the cases back to Kenya.[i]) Prime Minister Raila Odinga stressed that the accused remained innocent until proven guilty, expressing hope that justice will be served for the victims of the 2007-2008 post-election violence (PEV).

The Political Consequences

The ICC ruling will no doubt have a significant impact on Kenyan politics, especially as the country gears up for a general election in December of this year or in March of 2013. Both Ruto and Uhuru have expressed their desire to contest the presidential election. The ruling also presents important legal questions that will test the temerity of the new captains of the Kenyan judiciary, which is currently undergoing significant reforms.

Firstly, there is the question of whether or not the two of the four accused, Kenyatta and Muthaura, should resign from public office. There is an almost even split among legal experts over whether or not the constitution requires those accused of crimes such as the two are facing to vacate office. Their supporters insist that the law only bars suspects of economic crimes from holding public office. Most of Kenyan Civil Society thinks otherwise.

Related to this is the fact that on receiving the Waki Report on the PEV on 16 December 2008, Kibaki and Odinga signed an agreement mandating that those charged with crimes related to the PEV should neither hold public office nor contest for any elective office. Civil Society groups will no doubt also refer to this agreement in their calls to have the two to be let go by the president.

Secondly, come the time to nominate presidential candidates, the Chairman of the Independent Electoral and Boundaries Commission (IEBC) will have to decide whether or not both Ruto and Kenyatta can run for president while facing charges of crimes against humanity. The IEBC Chairman, Mr. Issack Hassan, has so far avoided dealing with the question, insisting that it would be presumptuous to give an opinion before the two submit their candidacies. This decision point will present yet another opportunity for the country to debate the importance of personal integrity among holders of public office.

These two legal contestations will most certainly wind up in court. It is telling that immediately after the ruling was announced President Kibaki instructed the Attorney General to form a committee to draft the government’s official response. This might merely be a stalling tactic to cool down Civil Society groups (which are already calling for the dismissal of Kenyatta and Muthaura) while the president’s camp formulates a coherent and legally tenable reaction.

It is important to note that the vagueness of Chapter 6 of the Kenyan Constitution on the integrity of holders of public office will afford the judiciary immense discretionary powers in providing a ruling on the matter. Given recent spats between the executive and judiciary on ICC related issues, this must cause the latter a good deal of discomfort. [ii]

How will this affect the next general elections?

The simple answer is that it is too early to tell. The important thing to know is that given Kenya’s ethnic arithmetic and the new electoral rules it will be hard for any of the major presidential candidates to win on their own. Presently the man to beat is Odinga, who is polling at around 32%. Kenyatta is second at 22%.[iii] Kenya’s electoral law requires an elected president to garner over 50% of the vote and have majorities in at least half of the country’s 47 counties.

Given these requirements, it is very likely that the presidential election will go to a runoff between the top two candidates. Many believe that Odinga will make it past the first round. As a result, politicians united in common opposition to Odinga are working hard to form alliances with a view of beating him (Odinga) either in the first round or in a runoff.

The unfortunately named KKK (Kalenjin, Kikuyu and Kamba alliance – formed by Ruto, Kenyatta and Musyoka) and its successor, the G7, is such an alliance that has been formed by various regional politicians with a view of having competitive primaries and then fielding a joint candidate against Odinga. The other major alliance is the Party of National Unity (PNU; the party Kibaki used for his re-election bid.) But antagonisms within these alliances make unity in the anti-Odinga bloc highly unlikely. As is the case across most of Sub-Saharan Africa, incentives abound that hinder party unity.[iv]

The alternative that has been mooted is for each major candidate to go it alone in the first round (thus preventing an outright Odinga win) and then support whoever emerges second against Odinga in the runoff. But even this choice has received little enthusiasm because it effectively guarantees Kenyatta the anti-Odinga candidacy in the runoff.

So how might the ICC ruling affect alliance building ahead of the elections? Firstly, the ruling will most likely bring Kenyatta and Ruto closer, at least in the short term. While for now the two have self-interested reasons to be together, it is not guaranteed that their grassroots supporters will play along in the long run. After all the question of land, which was at the heart of the clashes in the Rift Valley between Kalenjin supporters of Odinga/Ruto and Kikuyu supporters of Kibaki/Uhuru, remains unresolved. Indeed Ruto has already witnessed a mutiny in his own backyard in which he was prevented from taking over a party that he wanted to decamp to (he is still technically in Odinga’s Orange Democratic Movement, ODM.)

Secondly, there is speculation that should the two be barred from running for president they might settle for a compromise candidate in the likes of Vice President Kalonzo Musyoka, MP Eugene Wamalwa or former cabinet minister Raphael Tuju.[v] But such an eventuality is also fraught with uncertainties. For one, it is unclear that the old establishment behind Kibaki and Kenyatta would settle for the untested hands of the two newcomers – Wamalwa and Tuju. Nobody, especially if you may have some ill-gotten wealth stashed away, wants surprises in the presidency. In addition, many of them already deeply distrust Musyoka whom they see as an opportunist out to benefit from Kenyatta and Ruto’s woes. In the end they may settle for the devil they know, Mr. Odinga. It is telling that a section of the Central Kenya business elite, Mr. Uhuru’s backyard, have started warming up to Raila. [vi]

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?

AllAfrica – All the Time

More News on