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.