The Star (Nairobi)

Kenya: Elite Conspiracy - the ICC Narrative

analysis

"A lie can travel halfway around the world while the truth is still putting on its shoes," remarked the inimitable American humourist, novelist and short story author Mark Twain.

How right he was! Kenyans are daily being fed a constant menu of undercooked, hollowed out and outright lies; for instance, the hopelessly mendacious fable that the Kenyan cases at the International Criminal Court are part of an "imperial conspiracy" to stop Uhuru Kenyatta and William Ruto from contesting the forthcoming presidential elections in Kenya.

What balderdash! First, no credible evidence has been produced to support this claim. Second, what the evidence points to is the fact that, instead, it is our very own political elite who have been conspiring to ensure the defeat of the rule of law.

Here is why.

The ICC process in Kenya was initiated via a recommendation in the report of the Commission of Inquiry into Post Election Violence - the Waki Commission. The Waki Commission commenced on May 23, 2008 and was required to, among others, recommend measures to be taken to prevent, control and eradicate the occurrence of similar deeds in future; measures with regard to bringing to justice those persons responsible for criminal acts; and measures to eradicate impunity and promote national reconciliation.

Having studied impunity in Kenya, the Waki Commission noted that, "The elements of systemic and institutional deficiencies, corruption, and entrenched socio-political culture have...caused and promoted impunity in this country...in five year cycles since 1992 when multiparty politics was introduced, pre- and post-election violence has rocked various parts of the country despite official inquiries and identification of the root causes being made."

The Waki Commission continued: "There is of course, a symbiotic relationship between the politicians and their supporters which continues to fuel impunity. Politicians rely on their supporters to enforce immunity while their supporters, who are the hand maidens of the violence, get protection from the political god fathers. This interference normally comes in the form of 'orders from above'. This symbiotic relationship between the politicians and their supporters creates a real and genuine fear among those who enforce the law. One Provincial Commissioner testified that he feared to order the arrest of senior politicians involved in the incitement of violence because his job would be at stake. The PC echoed the words of his police counterpart, Francis Gichuki, made 10 years ago before the Akiwumi Commission: 'My Lords, in a political government, we have to be cautious. This is a political Government'...There must be an end to this cowardice and pious sense of self-preservation in public service if impunity will be eradicated in this country!"

So, the Waki Commission was clear that impunity resided in the relationship between politicians and their core supporters. No question of an 'imperial' conspiracy arises here: unless, of course, the claim is that the Waki Commission was also part of this 'imperial' conspiracy. But then, how would this allegation arise yet the manner in which the Waki Commission was appointed was by agreement of the contending PNU and ODM parties?

Following the recommendation of the Waki Commission, it was clear that the formation of a domestic special tribunal was required to deal with post-election violence in order to address the pervasive impunity that had been noted in that report. It was also clear that the failure to establish this local mechanism would ultimately trigger the ICC option.

Several attempts were made to establish this domestic mechanism to address post-election violence but in each case these attempts were rebuffed by a section of Kenyan legislators. Here's one press report about how legislators behaved when this issue came to Parliament:"On the evening of February 12, 2009, MPs Lewis Nguyai, Isaac Ruto and Ekwe Ethuro burst into celebration. The same day, President Kibaki and Prime Minister Raila Odinga walked out of Parliament crestfallen. The trio were among 93 MPs who humbled the two coalition principals when they voted to reject a Bill proposing the formation of a special tribunal to try those suspected to have organised the post-election violence of 2007/8...This effectively paved the way for the criminal proceedings at The Hague-based International Criminal Court involving eminent Kenyans - including Mr Uhuru Kenyatta and Mr William Ruto."

Please take careful note who was celebrating the ascendancy of The Hague option. "A review of the Hansard recordings during the tribunal debate reveals that a majority of Kalenjin MPs known to be close to Ruto voted for The Hague option. Mr Ruto's allies who voted to reject a local tribunal include Zakayo Cheruiyot (Kuresoi), Cyrus Jirongo (Lugari), Isaac Ruto (Chepalungu), Fred Kapondi (Mt Elgon), Joshua Kutuny (Cherangany), Wilfred Machage (Kuria), Sammy Mwaita (Baringo Central), Kazungu Kambi (Kaloleni) and Moses Lessonet (Eldama Ravine). Mr Ruto of Chepalungu is often reminded about his much-quoted declaration: "Let us not be vague, it is The Hague." In addition, the majority of the Kalenjin and Kamba MPs allied to Vice-President Kalonzo Musyoka supported The Hague option. And, although Mr Kenyatta and Mr Ruto voted with the government, their troops were sufficiently mobilised to reject the tribunal. Those in the Kenyatta camp who supported The Hague option are Ferdinand Waititu (Embakasi), Jamleck Kamau (Kigumo), Emilio Kathuri (Manyatta), Joseph Kiuna (Molo), Lenny Kivuti (Siakago), Abdi Nuh (Bura), Peter Mwathi (Limuru) and Clement Wambugu (Mathioya).

Why, one may ask, was it that it was Uhuru and Ruto's supporters who "took" them to The Hague? Well, "Ruto had also declared that ICC would take one hundred years to conclude the matter...A leaked diplomatic cable on a conversation between then US embassy officials with Kinangop MP David Ngugi captures the thinking at that time. The vote was an act of self-preservation...On the other hand, ODM politicians held that The Hague process would ...take years... Then there is the small matter of Mr Odinga. It is understood that PNU politicians, in supporting The Hague, were convinced that having inspired mass action during the violence, his name could appear in the Waki envelope."

So who's been conspiring to fool who?

Mugambi Kiai is the Kenya Program Manager at the Open Society Initiative for Eastern Africa (OSIEA). The views expressed in this article are entirely his own and do not reflect the views of OSIEA.

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