Legacy question for Kibaki and Raila

• Waki report said political leaders should have read the signs and promoted peaceful elections

Standing before African leaders in Addis Ababa in January 2008, President Kibaki squarely blamed the post-election violence on the Opposition.

He took aim at his rival Raila Odinga’s Orange Democratic Movement, accusing the party of fuelling the violence and of failure to seek court redress over the disputed presidential election.

President Kibaki made statements that would later be the pillar of ICC prosecutor Louis Moreno-Ocampo’s case against the six Kenyan suspects—including his favoured successor and top civil servant— facing charges of crimes against humanity committed during the violence.

“The ongoing crisis,” he said, “erupted after the opposition rejected the election results and went ahead to instigate a campaign of civil unrest and violence”.

President Kibaki further told his peers that “there was overwhelming evidence to indicate that the violence was premeditated, and systematically directed at particular communities”.

This would be the central theme in the prosecution’s case against the suspects, a proposition their lawyers have put up a spirited fight to discredit.

President Kibaki and Mr Odinga were the key contestants in the 2007 presidential election whose outcome resulted in violence that claimed the lives of 1,113 Kenyans.

Though the prosecutor said he had no evidence against the Head of State and the PM, the events after the election and subsequent prosecution of Kenyans at the International Criminal Court remain a blot on President Kibaki’s legacy and a shame to the nation, regardless of whether the cases proceed to trial.

It is often pointed out that President Kibaki would be remembered as the commander-in-chief under whose watch Kenyan citizens were prosecuted at the ICC.

In one news report that attracted the attention of Parliment, our sister paper The EastAfrican last year declared that President Kibaki’s handling of the ICC matter, especially the “diplomatic joke” of government lobbying to block the cases, had turned Kenya into a global laughing-stock and reduced its standing in the community of civilised nations.

Two issues stand out: The ICC took up the Kenyan cases due to the government’s failure to set up a genuine and credible mechanism to try the suspects at home.

Second, there is the argument that the government filed a grossly incompetent case challenging the ICC hearings.

Senior Counsel Paul Muite believes that even if the ICC cases are not confirmed, The Hague experience has sent a strong message that impunity must end.

“Kenya had made itself look ridiculous by trying to petition the UN that the trial at The Hague was going to cause violence locally. But offering to try the suspects locally was likely to cause more violence. Kenya is not on trial. It is individuals,” he said.

Then there is the matter of the report of the Waki Commission which investigated the causes of the violence.

The violence was, in part, a consequence of the failure of President Kibaki and his first government to exert political control over the country or to maintain sufficient legitimacy that would have allowed a civilised contest with him as a candidate possible, the report observed.

Notably, the report blamed President Kibaki for failure to take action ahead of the elections that could have bridged the escalating ethnic and political divide that fuelled the violence.

The Waki report also blames President Kibaki for the way he handled the search for a new Constitution, the 2005 referendum and its aftermath.