The far-reaching implications of an increasingly assertive Judiciary getting to decide whether Uhuru and Ruto are fit for the race for State House, given their confirmed charges at the ICC and the reform dynamics of the new constitution
President Mwai Kibaki's now serial humiliation by the Judiciary could well be little more than the warming up for the Mother of All Battles between the Executive and the new Judiciary - the Willy Mutunga Supreme Court. The new Judiciary has severely embarrassed the President in his final months in office, a period that is characterized as the lame-duck phase of presidencies around the world, including in the greatest democracy of them all, the United States of America. Judges Daniel Musinga, Mumbi Ngugi and Weldon Korir have all ruled against President Kibaki in a number of landmark judgments that have hacked away at State House's previously sacrosanct powers of hiring and firing in the State and parastatal sectors.
HUMBLE PIE & EGG-ON-FACE DIET
On at least half-a-dozen times since January 2011, the Judiciary has fed the Presidency a diet of humble pie and egg-on-face such as no Executive in the East, Central and Horn-of-Africa regions has ever had to contemplate. Retired President Daniel arap Moi ruled Kenya for 24 years across five terms and never suffered what Kibaki, a two-termer, is going through. He must be whistling in awe at the unfolding scenario and telling himself something akin to "the times, they're a-changin' ".
And then, three weeks ago, the President of the Supreme Court of Kenya, Dr. Willy Mutunga, quietly announced that Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto, who stand accused of crimes against humanity at the International Criminal Court (ICC) arising from the 2007-08 post-election violence (PEV), will be vetted by the Kenya Judiciary under the new Constitution as to whether they can run for President or not.
Mutunga's announcement was made at a three-day Judiciary transformation workshop in Mombasa on the same Saturday that Miguna Miguna was launching his sensationalist book on Prime Minister Raila Odinga in Nairobi, Peeling Back the Mask, Etc. Few Kenyans, including the elite of the media commentariat and punditocracy, paid Mutunga much attention. And yet his remarks are the hugely significant preface to the most titanic clash in the public domain between now and the presidential poll itself sometime in 2013.
The ironies are keen indeed. Here was Mutunga, who joined the race for the Judiciary on the Prime Minister's suggestion that he do so, speaking at the same time as Raila's most ardent detractor on an issue of the most urgent national and public interest, but having his voice drowned out by the Miguna "Come Baby Come" circus. If the Mutunga Court is indeed going to be the jurisdiction of last resort on whether Uhuru and Ruto can join Raila and the rest of the field for the race to the post-Kibaki State House, then one of the most potent flashpoints in our clamorous, divisive and controversy-ridden politics is just around the corner. The transformation that is about to be wrought by the implications of this intervention goes far beyond the Judiciary and into the dynamics of the Mwai Kibaki transition, legacy and succession.
BAD NEWS FOR UHURU & RUTO
If the Miguna book was bad news for Raila and his political formation in the Coalition, the Mutunga announcement was far worse news for Uhuru and Ruto, Raila's most implacable foes on the other side of the Coalition divide. Indeed, it must have frozen their slowly spreading grins at the PM's discomfiture at Miguna's hands into grimaces of the purest pain and consternation - and something bordering on primal fear. Suppose, for instance, Mutunga named Judges Musinga, Ngugi and Korir to a three-judge Bench to decide Uhuru and Ruto's suitability as Presidential candidates, given their confirmed ICC cases? Loss of sleep in these candidates' strategy rooms would surely be redefined.
Said Mutunga: "We have two cases about Chapter Six which touch on integrity pending in court and Uhuru's and Ruto's is one and the other one is Mumo Matemu's. The courts will interpret and give the parameters of the implementation of that chapter. That issue will be ventilated in those two cases and if people are not happy they will go to the Court of Appeal and the Supreme Court will have the final word on that issue." This was a thunderclap of an announcement, but, like a seaquake that begins deep under the waves, its rumblings have yet to be detected by millions of Kenyans. However, when the import of Mutunga's words makes landfall in the court of public opinion, they will hit like the proverbial Tsunami.
Uhuru and Ruto, who head up the most ardent opposition to Raila's third and most determined stab at the Presidency in a field in which the incumbent is not a contender, have already been cleared by the ICC itself to run for whatever elective office they wish, including President, despite their date at The Hague. The ICC even shifted the hearing of the cases to dates soon after the General Election scheduled for March 4, 2013, specifically in order not to be seen to be playing a role in the Kenyan poll's outcome.
The new Kenyan Judiciary has no such inhibitions. The head of an increasingly assertive and autonomous, even activist, Judiciary, who happens to be a former political detainee and a lifelong professional activist, has spoken on the Uhuru-Ruto factor. And what he has said has set the stage for the most complex lead-up to a General and Presidential Election in Kenyan history hitherto.
The horror that is slowly dawning on Uhuru and Ruto and their respective strategists is the wild card of being weighed - and most likely found wanting - by a Judiciary headed by Mutunga. Kenya's emergent Judiciary is the stuff that nightmares are made of as far as powerful and influential operatives of Uhuru and Ruto's Kanu Old School origins and predilections are concerned. It is a reformist and activist Judiciary that is clearly out to make a point and have an impact in many ways that are unprecedented in Kenya. To be subjected to the tender loving care (TLC) of such a fast-evolving institution, a Bench that is no respecter of State House, is the last thing that the ICC Presidential candidate pair need just now.
The implications of the Mutunga pronouncement are far-reaching and the historical ironies are acute. For one thing, this means that we will witness one of the fastest litigations in Kenyan jurisprudence in two cases of the most monumental significance. The hearings, appeals and final decisions must all take place long before March 4, 2013, so that they do not scuttle the Uhuru/Ruto Presidential campaigns in the very unlikely event that they get the Supreme Court green light the same way they got the ICC's.
FIVE KEY QUESTIONS
Five key questions arise: During the interregnum of the hearings, appeal, final judgment cycle, what is their status as prospective candidates? Can they go on mounting vast campaigns around the country even as they appear in court to press their own cases? The sub judice rule is especially strict in the Kenyan judicial system and was not long ago actually controversially imposed by Judge Isaac Lenaola in a case touching on the ICC Two. All signs are that is likely to be re-imposed once the proceedings begin, severely complicating any emotive campaign speeches that touch on the matter, both for and against.
At Mombasa, Mutunga observed: "My appeal to all Kenyans and leaders is that we depoliticize the ICC process and concentrate on holding free, fair, peaceful and democratic elections. We should let the law take its course for justice to be done for both the victims and the accused." The second key question regards what impact a final judgment against the two, one which holds that the crimes they are accused of, among them mass rape, murder and deportation of persons, are too grave to be on the CVs of prospective Presidential candidates, would have on their cases at The Hague, scheduled for April 2013, the month following the General Election?
Question Three: Long before that, what impacts would such a potentially explosive and unprecedented decision have on the ground in Kenya bang in the middle of the biggest and most expensive General Election campaigns of them all? What would Uhuru and Ruto, and their millions of supporters, do next and how would it affect the Prime Minister's own campaign for State House? There is many an imponderable here at this distance in time - and no doubt some completely unforeseen scenarios.
The plot thickens. Question Four: Chapter Six of the Constitution of Kenya was not designed only for Uhuru, Ruto and Matemu. The Mutunga Court will have a gigantic responsibility if more cases objecting to the integrity credentials of more General Election aspirants are brought before it in the few months remaining before Kenyans must vote and Kibaki must go home. Fast-tracking the cases of The Hague Two is all very well, but suppose 30 other cases are brought to the Judiciary seeking final judgment in the entire cycle of hearings, appeal and Supreme Court decision, what then?
Question Five: What if the Kibaki State House leads a political defiance of the Supreme Court if it bars Uhuru and Ruto from the presidential race? After all, Kibaki has moved mountains, particularly on Uhuru's behalf, since December 15, 2010, when the immediate former Chief Prosecutor of the ICC, Mr. Luis Moreno-Ocampo, first fingered the two and four others as "bearing the greatest responsibility" for the PEV.
The President and his handlers resisted the ICC all the way to the UN Security Council, the African Union and the East African Community. Kibaki has bent over backwards and executed many another political-diplomatic acrobatic moves on behalf, first and foremost, of the son of Kenya's Founding President, a man who was long his mentor and role model. Why should he relent before his own Supreme Court?
The President has fundamentally disagreed with Attorney General Githu Muigai on a number of the defeats the Presidency has suffered at the hands of the resurgent Judiciary, including appealing, against the AG's advice, against the decision to outlaw the deployment of 47 county commissioners. He has even circumvented the AG's Chambers in this matter, bringing in a private practitioner to conduct the appeal.
Kibaki's response to a Supreme Court ruling barring Uhuru from being in the race to succeed him would most likely be massively controversial. And this would be the case even if his reaction were only to throw up his arms in despair and tell Kenya's first First Family (Uhuru's Mum, Mama Ngina Kenyatta, Jomo's widow, is still alive and very much concerned about her first-born son's plight), the Kikuyu community and all other Kenyans that he has done his best for the DPM and been frustrated at every turn, both at home and abroad.
PAYBACK: ACTIVIST ELITE v MONEY ELITE?
If a gigantic face-off clash between the outgoing Executive and the new Judiciary comes to pass Kenya could well descend into a pre-election constitutional crisis. And all eyes would be on the son of Kenya's Founding Vice President, the Prime Minister, who would be expected to be the foremost beneficiary of a State House race that leaves Uhuru and Ruto out. There would be accusation and counteraccusation, amid the recrimination, which would doubtless include impassioned allegations that the PM is behind it all (not dissimilar to what was said about him by Uhuru, Ruto and their supporters regarding the ICC).
A dangerous cleavage, one much more divisive than traditional ethnic politicking, would then almost certainly rear its head - the old narrative about reformists and conformists. It would certainly look like the political detainee elite of the Kanu era, led by the PM and the CJ, were locking the moneyed elite of the post-Independence era, as personified by Uhuru Kenyatta, out of contention in the matter of the leadership of the forthcoming Fourth Republic under the new Constitution. The narrative would look dangerously like it was payback time for the activist elite of the 1970s-90s arrayed against the Kenyatta and Moi factors.
All these scenarios are in the works for the very near future indeed. What kind of repair they leave the country in, particularly the dimension of the Kibaki transition, legacy and succession, is the $64 million question. But one thing is for sure: Like it or not, at the centre of it all stands the Raila factor. Uhuru and Ruto would not go down quietly if the Mutunga Court bars them from the State House race. In fact, they would loudly announce Plans B that comprise nothing but the prevention, too, of Raila Odinga from the Presidency. Whether this would be the bravado of the frustrated would soon become clear at the polls themselves.
What their apparently captive vote blocs would do in a scenario where the two were knocked out of contention remains unclear, but one factor is constant - the Kikuyu and the Kalenjin have never combined forces for General Election purposes, not even for national referenda. But someone, somewhere is bound to gain from the vacuum created by an Uhuru-Ruto absence. The question is who these candidates are and whether their gain, which, to judge by past voting patterns, cannot possibly be of both blocs in their entirety, or even merely their majority, is sufficient to rob Raila of victory. The next eight months in Kenya are going to see epochal decisions; we will truly be living history in the making.