Ruling game changer in race for top job
Not too long ago when “Don’t be Vague, ask for Hague”, was the mantra for supporters of the group that eventually came to be known as the Ocampo 6; few would have ventured that a slight, blonde, velvety-voiced judge in a small courtroom in small town in the Netherlands would come to make a ruling of such pronounced political significant for Kenya.
As if they had foreseen the eventual outcome, Mr Uhuru Kenyatta and Mr William Ruto had spent the week preceding the ruling insisting that they would remain in the presidential race whatever the outcome from The Hague.
Now they have no option but to reconsider their options.
When Judge Ekaterina Trendafilova pronounced the verdict committing Deputy Prime Minister Kenyatta, former cabinet minister Ruto, Head of Public Service Francis Muthaura, and radio presenter Julius arap Sang to trial for crimes against humanity, it might well have marked a seismic shift in an election year where two of the suspects are declared presidential candidates.
The judges ruled that two other suspects, postmaster general Hussein Ali and suspended cabinet minister Henry Kosgey have no case to answer.
Flanked by Judges Cuno Tarfusser and the dissenting Hans-Peter Kaul, Judge Trendafilova did not make a finding on whether Mr Kenyatta and Mr Ruto must now abandon their presidential aspirations.
Neither did the court make a finding on whether the two, as well as Mr Muthaura, must relinquish public office.
Yet this was an issue that had come to dominate political discourse and media debate in the days leading up to the ruling.
Indeed, the ICC had felt constrained as the clock ticked to make the unusual step of publicly clarifying that its statutes did not bar indicted persons from holding public office or vying for political office.
Some commentators and media quickly seized on the statement proclaim that Mr Kenyatta and Mr Ruto had been cleared to continue their campaigns for the presidency if indicted; but the true position was that what the ICC said was that the matter was up to Kenyan law.
There has not been any clear direction on what the Constitution and the laws of Kenya provide in such cases, with many of the interpretations so far aired seemingly based more on political posturing rather than the fine print in the law books.
There is no doubt that the two most prominent members of the Ocampo 6 have milked their predicament to great political advantage.
Mr Kenyatta and Mr Ruto stand almost unchallenged in control of the political space with their respective communities, the Kikuyu and the Kalenjin.
They have profited from the siege mentality that the ICC case has forced on their respective communities, exploited the situation to project themselves as victims and innocent champions of their peoples’ interests.
They have also managed to unite their mutually hostile followers against a ‘common enemy’, Prime Minister Raila Odinga.
The Ruto and Uhuru fan base accuses Mr Odinga, for unclear reasons, of somehow colluding with the ICC prosecutor Luis Moreno-Ocampo to nail them on the post-election violence charges and thus clearing a smooth way route for his own ambitions to State House.
As inexplicable as the claims of collusion may seem, there is no doubt that in the Odinga camp there will be no tears shed over the ruling.
The big question for now is whether Mr Kenyatta and Mr Ruto, the key figures in the G7 alliance united by common antipathy to Mr Odinga, have been handed early technical knockouts.
And if so, the other question is whether the alliance is ready to front an alternative candidate.
Also in the G7 is Vice President Kalonzo Musyoka, but supporters of Mr Kenyatta and Mr Ruto can hardly disguise their suspicion that President Kibaki’s deputy is only waiting for them to fall so that he can squeeze into the breach.
There has been talk that the G7 leaders have for a time had contingency plans to front proxies such as former cabinet minister Raphael Tuju or Saboti MP Eugene Wamalwa if knocked out of the race, but it is also clear that Mr Musyoka and another senior figure on the periphery of the group, Internal Security minister George Saitoti, will not abandon their own ambitions to support any proxy or a compromise candidate.
For the time being, in any case, Mr Kenyatta and Mr Ruto are adamant that innocent until proven guilty, the issue of abandoning their presidential aspirations does not arise.
Here they take refuge to the fact that the law does not explicitly bar someone charged with a criminal offense from running for or holding public office unless convicted and sentenced to a jail term for more than six months.
It is only in relation to corruption cases—not murder, rape, arson, warlike activities, displacement of populations or other serious crimes against humanity—that one indicated must surrender office, goes the argument.
Mr Ruto and Mr Kosgey in fact were forced out of the cabinet on facing corruption charges.
But whereas there is a seeming loophole in the law, the series of agreements signed by President Kibaki and Prime Minister Odinga forming the coalition government could also be binding.
The December 16, 2008 agreement signed by the two principals on receipt of the Waki Report—the Commission of Inquiry into Post-Election Violence (CIPEV) chaired by Justice Philip Waki that triggered the ICC mechanism—read, in part: “The Parties shall ensure that any person holding public office or any public servant charged with a criminal offence related to 2008 post-election violence shall be suspended from duty until the matter is fully adjudicated upon. The parties shall ensure that any person convicted of a post-election violence offence is barred from holding any public office or contesting any electoral position.”
Addressing the nation on Monday after the ruling, President Kibaki was notably silent on the effect of this very explicit provision bearing his signature.
Instead, he directed Attorney-General, Prof Githu Muigai, to form a team that will study the ICC ruling and advise the government on the next step.
It was a limp statement that actually said very little of importance.
Prof Muigai would probably offer an instant opinion without need for any committee or lengthy deliberations; which makes it likely that the formation of a team is intended to buy time before making any decisions.
It is probable that the president will not be keen to take action on allies such as Mr Kenyatta and Mr Muthaura, but it remains to be seen if he strongly resists pressure to have them step aside.
The key issues Prof Muigai will have to advise on is whether Mr Kenyatta and Mr Muthaura can hold on to their jobs in the face of criminal proceedings.
The other issue is whether Mr Kenyatta and Mr Ruto can still stand for president.
The Daily Nation reported last Friday, sourced from a highly-placed government official, that the cabinet committee on ICC issues would be summoned to deliberate on that issue.
However, it should be clear to all that the cabinet has absolutely no mandate to adjudicate on a matter that lies in the province of what the law provides.
The chairman of the Independent Electoral and Boundaries Commission, Mr Issack Ahmed Hassan, has so far refrained from giving his opinion, but it is he who at the appropriate time will be called upon to accept or reject presidential election nomination papers from Mr Kenyatta and Mr Ruto. Those aggrieved with his decision will have recourse to the courts.
Then, there is Mr Odinga, who in the past couple of years has borne the brunt of anger over accusations that he engineered the ICC cases.
No doubt the fallout with Mr Ruto cost him a great deal politically, as he was deserted in droves by erstwhile ODM supporters in the northern Rift Valley.
Early on in his estrangement from Mr Ruto, the Prime Minister seemed keen to reach out to central Kenya, Mr Kenyatta’s constituency, but that was largely lost when the Deputy Prime Minister got entangled in the ICC cases.
Mr Odinga still retains pockets of support within the two communities, but if they go into laager mood because of the indictments, supporters such as Cabinet ministers Franklin Bett among the Kalenjin and Kikuyu old-guard such as former Attorney-General Charles Njonjo will exercise much sway.
In his response after the ruling Mr Odinga appealed for calm while the judicial process runs its course.
He wisely resisted the temptation to gloat. It was significant, however, that he did not deliver a joint statement with President Kibaki as is the practice at moments of great national importance.
Meanwhile, it is likely that even as they ponder the full implications of the ruling, Mr Kenyatta and Mr Ruto will prefer to continue what they have been doing all along and exploit the situation to bolster their political bases.
It will be a long time before the matter goes for full trial at the ICC, and in the interim the accused remain at liberty.
But they also have to be careful that they do not engage in actions or utterances that might prompt the court to seek arrest warrants.
The court indirectly, also, made them responsible for keeping their supporters well-behaved, for any reaction that turn violent could be pinned on them.
While fervent supporters may be in ‘no retreat’ mode, campaigning for office while facing criminal proceedings in a far-off courtroom is not easy.
One cannot be tried in absentia, so Mr Kenyatta and Mr Ruto will have to be at The Hague during duration of the trial.
So they would have to campaign in absentia, but they may be fortunate that it could be a long time before the cases come to trial.
However, there is also the question of what the scenario would be if one of them won the presidency while under threat of a prison term at The Hague.
That would be a clearly untenable situation. And if convicted, says the law, then one must relinquish office.
Those are scenarios still to be looked at in depth. In the meantime, the cause of apprehension was whether the country could explode into violence because of the indictments.
The ICC was aware of this threat and reportedly had monitors on the ground over the past few weeks keeping tabs on the situation.
So was the government, which beefed up security the hotspots worst hit by the post-election violence.
In the event everything passed peacefully, but the situation still needs close watch lest some hotheads incite latent anger in a way that can threaten the peace.
