The Star (Nairobi)

Kenya: Will the Country Be Governed From the Hague?

opinion

President kibaki, PM raila and mediator kofi Annan: No one disputes the fact that the power sharing arrangement did not turn out as expected as Kibaki and his side of the coalition grabbed more power than envisioned in the coalition and basically reduced Raila to a minority partner.

In any mature democracy, such charges, especially when the indictment is handed down by a global court would not be compatible with holding high office. It is taken for granted, that you can either be president, or you can face charges at the ICC - but not both.

Formalised accusations of murder, forcible transfer of populations and crimes against humanity are not what you would normally associate with a popularly elected head of state: these are usually the hallmarks of a brutal, tyrannical government, led by a bloodthirsty despot.

So it is truly remarkable that Kenya is now heading towards a point where, depending on how Kenyans vote, we may yet have the Eastern Africa hub for transport, trade and diplomacy, led by a popularly elected leader who faces just such charges at the International Criminal Court.

In any mature democracy, such charges, especially when the indictment is handed down by a global court (created specifically for those circumstances where the national judiciary is unable to act for one reason or another) would not be compatible with holding high office. It is taken for granted, that you can either be president, or you can face charges at the ICC - but not both.

And yet William Ruto, undoubtedly one of the leading candidates in the race for the presidency, calmly stated, not long ago, that if elected president, he would run the country using ICT, in between the effort to prove his innocence before the ICC.

Even assuming this is possible, what kind of nation would Kenya then be? What would we say about a leader that is willing to subject his country to this farce, of running the nation's most vital affairs "through ICT" while simultaneously answering charges of crimes against humanity at an international tribunal - crimes allegedly committed against citizens of the very country he is ruling while at The Hague?

And, of course, if Uhuru Kenyatta and William Ruto run as a team and win, then - if they were elected - then Kenya would have both its Vice President as well as its President, out of the country for many months, busy answering accusations of crimes against humanity. To understand how it is that Kenya now faces this surreal prospect, we need to go back to the very beginning and ask, "When did the rain start beating us?"

Following the elections of 2007, violence unlike any we have seen in our beloved country, erupted such that by the time it was over, more than 1,100 people were dead, 3,500 injured and up to 600,000 forcibly displaced. During the 60 days of violence, there were also an untold number of rapes and property destroyed in six of Kenya's eight provinces.

The post-election violence nearly plunged the country into a full-blown civil war but for the intervention of former UN Secretary General Dr Kofi Annan and his Panel of Eminent Personalities established under the auspices of the African Union (AU) that brokered a deal between now Prime Minister Raila Amolo Odinga, for whom a more convincing case can be made and most people believe won the 07 elections and President Mwai Kibaki, who many believe lost the election but was determined to cling on to power at any cost, including loss of life as happened during PEV.

The deal reached between Raila and Kibaki resulted in the formation of the coalition government currently in place whereby the two principals were supposed to share power equally.

No one disputes the fact that this, in fact, turned out not to be the case as Kibaki and his side of the coalition grabbed more power than envisioned in the coalition and basically reduced Raila to a minority partner and what a shame, indeed, given Raila is the one who most believe actually won the elections in 2007, you will think the opposite would be the case.

Given the violence that took place before the deal was reached, the new coalition government established an international commission of inquiry officially known as the Commission of Inquiry on Post Election Violence (CIPEV), otherwise known as the "Waki Commission," which was mandated to investigate the facts and circumstances surrounding PEV.

After an exhaustive investigation that spanned many more than 15 months, the Waki Commission handed over its conclusions and 529-page report to President Kibaki and Prime Minister Raila Odinga on October 15, 2008.

The report, referred to as the 'Waki report', recommended that an international tribunal be established to try the perpetrators the Commission had identified as being most responsible for PEV.

Cognisant of the nature of its recommendations, given the Kenyan political climate and modus operandi, the Waki Commission ensured that the recommendations in its report were accompanied by 'sunset clauses' that would initiate consequences for inaction or intransigence.

Specifically, the report provided that if "an agreement for the establishment of the Special Tribunal is not signed, or the Statute for the Special Tribunal fails to be enacted," then a list containing names of, and relevant information on those suspected to bear the greatest responsibility for crimes falling within the jurisdiction of the proposed Special Tribunal shall be forwarded to the prosecutor of the ICC.

The report, however, did not publicly disclose the alleged suspects in the report handed to the President and PM. The Waki Commission instead handed an envelope containing the list of alleged perpetrators to Kofi Annan who was to hold on to it and only hand it over to the ICC prosecutor as provided in the report, if there was inaction or intransigence relative to the report.

The Kenyan government was then given one year, beginning July 2009, to set up a tribunal to deal with issues of PEV with a clear warning failure to do this would see the ICC take up the matter and pursue justice for the victims.

The Kenya government then appeared to start a process by which such a tribunal beginning on December 11, 2008 when Parliament passed the International Crimes Bill (ICB) that sought to domesticate the Rome Statute under which the ICC operates.

The government had already ratified the Rome Statute a few years before on March 15, 2005 and the statute came into effect in Kenya on June 1, 2005.

Passage of the ICB simply empowered the Kenyan state to investigate and prosecute international crimes committed locally or abroad in specified circumstances and passage of this Bill was a key recommendation of the Waki Commission.

The next step after ICB was enacted into law was to establish a Special Tribunal to begin the process of adjudicating the cases related to PEV.

However, this process stalled when vested interests (read suspects) became wary of it and started finding ways to thwart or altogether scuttle the process.

On the opposite ends of these vested interests, you had politicians and leaders like PM Raila Odinga who took the position that full implementation of the Waki Report was vital to the consolidation of peace through justice as well as crucial to laying the foundation for healing and reconciliation in Kenya.

Raila and like-minded leaders then embarked on an unrelenting push for the establishment of the Special Tribunal to try the PEV cases locally.

Firmly believing and convinced a local tribunal will see the PEV suspects paraded in court, tried and likely convicted in a record time, as compared to the ICC, which they believed will take decades, a vocal group of MPs that included William Ruto--who was later disclosed as one of the suspects, spearheaded efforts to defeat passage of the law creating the Special Tribunal for trying PEV suspects.

In no time, it became fashionable and these MPs including Ruto soon started chanting, "Let's not be vague, let's go to Hague," a mantra they sang long and loud enough hoping to sway the public mood and their colleagues.

Their wish was granted after three attempts to pass the Special Tribunal law failed. The government gave up and Kofi Annan handed over the envelope containing the list of PEV suspects to then ICC chief prosecutor Luis Moreno Ocampo in July 2009 but the names on the list remained secret.

On November 6, 2009 the ICC prosecutor made an application to the Pre-Trial Chamber II of the ICC for authorisation to open a formal investigation and the judges of the pre-trial chamber granted this authorisation on March 31, 2010.

This authorisation was peculiar in that it was the first time the ICC allowed its prosecutor to initiate an investigation on its own volition which is nonetheless allowed under Article 15 of the Rome Statute.

On December 15, 2010, the chief prosecutor of the ICC Luis Moreno Ocampo announced that he was seeking summonses for six people: Deputy Prime Minister Uhuru Kenyatta, then Industrialisation minister Henry Kosgey, then Education minister William Ruto, then Cabinet Secretary Francis Muthaura, radio personality Joshua Arap Sang and former Police Commissioner Mohammed Hussein Ali--all accused of crimes against humanity.

As the wheels of ICC justice steadily but gigantically continued to roll, wariness among the suspects began to correspondingly evolve into something more urgent and serious than they had fully appreciated or even anticipated.

So much so that the suspects led by Uhuru and Ruto changed tune and now started calling for the cases to be brought back to Kenya--the very move they did not want a year earlier when Raila and even Kibaki himself were pushing for a local tribunal to try the PEV cases.

Almost on cue, Kibaki heeded their call and quietly started lobbying for support among other African leaders to put pressure on the ICC to allow the cases to be brought back to Kenya.

On January 23, 2011, the ICC confirmed charges of crimes against humanity lodged against four of the six suspects: Uhuru Kenyatta, William Ruto, Francis Muthaura and Joshua Sang--all but Sang senior government officials.

Now in near panic, half the government led by Kibaki went into high gear in its so-called shuttle diplomacy led by Kalonzo Musyoka. Everyone agrees this exercise was a waste of tax-payers money as there was no chance the cases could be deferred, the government having done nothing as required under the Rome Statute to defer the cases.

As predicted, Musyoka's efforts yielded zero results and that being the case, Uhuru and Ruto went on to Plan B. Plan B was rolled out in what was misleadingly referred to as "prayer rallies" by Uhuru and Ruto.

In fact, these were nothing but an effort to sow seeds of discord in the country and basically balkanise the country in an effort to 'stop' Raila from ascending to the presidency, using the ICC as a wedge.

The rhetoric and things said in these so-called prayer rallies were so reckless and dangerous, it is believed the ICC asked Uhuru and Ruto to cease and desist lest they be arrested and detained pending their trials.

Thankfully, for this or whatever other reason, the duo stopped the trajectory those rallies were headed and effectively abandoned Plan B for Plan C.

Plan C is a hybrid of Plans A and B in that the duo is now once again engaged in fresh lobbying of other African countries to join in efforts to defer or bring back the cases to Kenya while at the same time they are still quietly and behind the scenes pushing the lie that Raila is responsible for their being at the Hague.

All this being said, a fundamental question does arise that Kenyans must address ahead of the next elections and quite frankly, right now and that is, what role should the ICC play in our next elections?

This is a simple, straight forward question but the answer or answers are neither that simple nor straightforward. A few things can be noted as we ponder the answers and these are:

First, there is nothing under the current constitution or law that would provide a basis to legally prevent any of the ICC suspects from seeking public office, including the presidency.

Given that simple fact, either Uhuru or Ruto who have both expressed interest to seek the presidency are and should be free to do so. That, however, does not mean either men cannot use their common sense and/or wisdom and remove themselves from consideration as a matter of good politics and morality.

Should either or both decide to vie, then Kenyans will have to make a choice whether they want to have as our president a person with a hangman's noose dangling over their heads or one who is not.

It's obvious these two are counting on age-old tribalism and divisive politics to carry the day but wiser wisdom points to an outcome more reflective of a Kenyan populace quite capable of sniffing and smelling from a mile away the stench of this old, rotten politics.

Second, and on a related note, Kenyans of goodwill and those who love our country must rise up and be counted in rejecting this old, divisive 'ukabila' based politics.

There is no doubt Uhuru and Ruto have and continue to milk the ICC issue to their advantage or at least hopefully so primarily in how they are and continue to lie about it but as Kenyans we have a choice to reward them with their lies, with dire consequences for the country, or reject them for the better and good of the country.

Third, some of us have for a long time been calling for these cases to be brought back home for trial but ours is not based on the same thinking and motivation or more accurately, ill-motive underlying the so-called shuttle diplomacy early this year by Kalonzo Musyoka, which was nothing but an effort to stall and thwart prosecution of these cases.

As some of us have been saying from the very beginning, if the government--and by that I mean the Kibaki side of the government was serious about bringing these cases home and ensuring their full prosecution to the fullest extent of the law, we would have by now had this done.

The problem and fact is, this is not what they want; in other words, prosecution of the cases to the fullest extent of the law--again assuming a reformed judiciary, is not what the doctor ordered when it comes to these suspects, at least with respect to Uhuru and Muthaura.

Ruto and Sang could be hanged and the other side (read Uhuru and Co) would not shed even crocodile tears and that's true notwithstanding they have pretended to embrace and even momentarily dangled Ruto as the next ABR (Anyone But Raila) or notwithstanding even the much talked about but yet to be proven alliance between him and Uhuru.

The only way these cases return home is if a new president is elected in an open and transparent election, we have more judicial reforms implemented and obviously have the appropriate laws passed to make that possible. Anything less will not do and the process will continue full steam.

Finally, PEV was the darkest moment of our country's history and its impact on those directly affected is something only time will heal but money can help in that endeavor.

For this reason, and we are now here talking strictly about those directly affected by post-election violence and not everyone else, justice may in their eyes only be if those responsible for the mayhem, deaths, rapes and destruction of property are tried, found guilty and hanged or sent to prison for a very long time.

The reality of it is, and the sooner everyone comes to grips with this the better, it's unlikely anyone will ever be found guilty, let alone be hanged or sent to prison for a long time.

Indeed, of the remaining four suspects, only Uhuru and Muthaura stand a remote chance of being convicted but even they, will likely walk free just as Ruto and Sang will and this is not merely saying things for the sake of it; rather, it's a conclusion based on a thorough legal analysis of these cases relying on known information and facts, which is about almost everything the prosecutor has against these four suspects.

Given this fact, it would be more meaningful and a sense of justice and closure for the PEV victims if the aforementioned three conditions for bringing the cases back home are met, we have the cases tried at home and, in the event the suspects are not found guilty of the criminal charges they are charged with, they can still be subjected to trial for civil liability where punishment shall be monetary compensation of the victims, not going to jail--punishment any of them would be happy to pay in lieu of going to jail.

Granted, special laws have to be passed to make this happen but that's a far much better proposition than what they face now where they all could walk and the victims are left with nothing.

More importantly, imposition of a civil penalty in lieu of criminal sanction will be the best way to end this national nightmare everything considered and right now we need closure more than anything else as we head into electioneering period.

Samuel Omwenga is a blogger and Investment Consultant in the US.

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