Guest Blog: Kenya and the International Criminal Court

Kenya has just had Madaraka day when they celebrate independence. As some may remember I blogged a while back that I was corresponding with Achieng' Osogo, a young woman politician in Kenya, aspiring for the Nakuru women's representative position in the upcoming elections. Well below is a blog from her - their electoral body has announced that March 4th 2013 will be for elections, but I understand a team of activists and politicians have appealed to have the decision amended. Some are urging the president and the prime minister to break the coalition government to enable elections to be held in December, which is the month when Kenyans usually go to the polls.

For me the link with Achieng' has been fascinating to get an insight into another countries politics - I await with interest the impact of the International Criminal Court. Anyway here's her piece:

How the International Criminal Court Process in Kenya will impact the upcoming elections in Kenya’ by Achieng' Osogo

Violence has been a com­mon feature of Kenya’s politics since the introduction of a multiparty system in 1991. Tribal clashes in parts of the Rift Valley have become a common occurrence that we have learnt to live with, by simply moving away during electioneering and coming back when the dust settles. The politically-fuelled ethnic slaughter that was experienced in 2007 saw the killings of more than 1,000 Kenyans, and approximately 600,000 displaced.

A Commission of Inquiry into Post-Election Violence chaired by Kenya Court of Appeal Judge Philip Waki was established to investigate the facts and circumstances of the election violence. The country, at that time, had a history of political impunity and therefore Kenyans dismissed it as one of the many commissions the government of the day would use to buy time. Judge Waki’s commission took cognisance of the political history of the country, and made binding recommendations that would ensure justice for victims. The government was required to establish a tribunal to try those who allegedly bore the greatest responsibility. A Panel of Eminent African Personalities under Kofi Annan’s chairmanship mediated the political crisis which resolved the political stalemate. The Waki Commission handed over a sealed envelope containing names of suspects, which Kofi Annan would hand to the International Criminal Court (ICC) for investigation and prosecution should the government fail to form the tribunal. The government failed to form the tribunal, and Mr. Annan handed over the envelope to ICC prosecutor Louis Moreno Ocampo.  To provide justice to the victims, combat pervasive political impunity and deter future violence, the ICC confirmed charges against four six suspects; Hon.Uhuru Kenyatta, Hon. William Samoei Ruto, Amb. Francis Muthaura and Joshua Arap Sang.

The ICC’s involvement sent a signal that entrenched impunity for wealthy and powerful politicians would not be permitted to endure. For a political class used to impunity, this is a likely game changer for how politics are conducted in the country. The charges against Hon. Kenyatta and Hon.Ruto have shaken a country where the political elite were once seen as almost above the law. In a move to protect their own, there have been cabinet reshuffles, with the outspoken Hon. Mutula Kilonzo who appeared not to support the two being moved from the powerful Ministry of Justice, to Ministry of Education.

Chapter six of the constitution will come into play for two of the accused who aspire to run for presidency. One way of looking at it would be to conclude that by virtue of having cases to answer to, they are ineligible, in which case they would have to give up those ambitions. The other argument would be that they are innocent until proven guilty, in which case they proceed to have their names on the ballot papers. Should they go through the first and second rounds of the elections, we would then hope that no citizen interprets chapter six differently and goes to court stating that we have an unconstitutional president.

It is still unclear what the implications of the trial will be to the individuals; will they need to be at the Hague every so often, and how then would they manage their campaigns? This could inform a decision to rally behind a neutral candidate, whom they will perceive to have their interests and will protect them and their interests. This may partly explain the current political realignments, with new formations taking shape.

Hons Kenyatta and Ruto come from large ethnic groups, and are likely to work towards rallying their tribes behind them. The average villager in Central Kenya and the Rift Valley feels that their candidate has been victimized by their rivals through the ICC process, and that the candidates stood up for their ethnic groups during the violence. It will not so much be that one side attacked the other, but that we were jointly betrayed. To them, they will probably support the people in ICC rather than vote for somebody else.

The elections are unlikely to be issue based. Campaigns will be concentrated around the perceived role in the 2008 violence and getting Kenyans to be prosecuted at the Hague. It will be a show of solidarity with our ‘own’ for the side that the Hague two will take, while the opposite side will be struggling to clear their name and sell a development agenda.

The ICC process will give hope to the citizens, aspirants will be more careful since the effects of incitement and violence will still be glaring at Kenya, but will unfortunately leave Kenyans more tribal.