Post-March ICC trials to put candidates in precarious state
The increasing possibility that deputy Prime Minister Uhuru Kenyatta’s and Eldoret North MP William Ruto’s names may be on the ballot paper could significantly alter the Kibaki succession.
On Tuesday, the prosecution informed the trial judges that they would complete revealing incriminating evidence against the two by the end of March 2013.
Making submissions during the status conference, the prosecutor of the International Criminal Court (ICC) indicated that he had no problem with Mr Ruto’s request to have the trials after the March elections as long as the accused make a “written undertaking” that they will not skip proceedings.
However, the decision on when the trials will begin lies with the judges who are expected to make the announcement before July 13.
Political calendar
It remains to be seen whether the trial judges will be sensitive to the local political calendar.
Unless barred by the local courts on the strength of the integrity chapter in the Constitution, the two men will be free to run in the election if the trial is after the General Election.
This would certainly complicate matters for presidential candidates perceived to be hinging their chances on the possibility of Mr Kenyatta’s and Mr Ruto’s absence from the ballot, notably Vice-President Kalonzo Musyoka and Deputy Prime Minister Musalia Mudavadi.
However, the accused should not be fast in celebrating, cautions Masinde Muliro University lecturer Egara Kabaji.
He argues that whereas MPs still have a chance to water down the Bill on integrity and leadership due to be tabled in Parliament, citizens could still move to court to seek constitutional interpretation.
Prof Kabaji reckons that if all obstacles facing Mr Kenyatta and Mr Ruto were removed and the two run separately, Mr Mudavadi would be the biggest casualty.
He argued that Mr Mudavadi’s campaign appears to have been built on presumed absence of the two accused from the presidential race.
In an Eldoret rally on January 27, Mr Musyoka criticised those advancing the view that he was shedding crocodile tears and was waiting in the wings to benefit if it becomes difficult for the two rivals to vie for State House.
“Claims that I will benefit from the ICC confirmation charges really hurt me. I do not see the need of going for the presidency if Uhuru and Ruto are not in the race,” he said.
Some in the political circles have been heard saying that Mr Mudavadi, who recently bolted from Prime Minister Raila Odinga’s Orange movement, is positioning himself to inherit the Kenyatta-Ruto constituencies if they are locked out of the polls.
“If Kenyatta and Ruto do not run, Mr Mudavadi will be the greatest beneficiary. But if they run, the man from Sabatia will be minced meat,” says Prof Kabaji.
Rekindle rivalries
In his view, the next election will be a contest between Mr Odinga and Mr Kenyatta, a situation that is likely to rekindle rivalries between the families which have been at loggerheads for decades.
Another scholar, Prof Kithure Kindiki, agrees with Prof Kabaji, this time citing Mr Odinga as the greatest beneficiary in a situation where the two compete against him.
He says that with the suspects having entrenched propaganda that Mr Odinga was behind their prosecution, their presence on the ballot paper will spare the PM backlash from their communities.
“It would be better for Mr Odinga to compete with Uhuru and Ruto on the ballot because their absence will make the election an emotive affair.
“But if the charges and any hurdles to their presidential run are removed, the suspects will lose the energy and clout. Absence of obstacles would take the wind out of their sails.”
The international law expert builds a scenario in which the principal presidential candidates will be boxed in their tribal corners with Mr Odinga and Mr Kenyatta emerging at the top in the first round of the election.
The two scholars concur that Mr Odinga’s supporters are likely to rally against another Kikuyu presidency, and a clarion call could appeal to other communities who will throw their weight behind the PM in the run-off poll.
The other challenge would be which way the vital Kalenjin vote would swing in a runoff between Mr Odinga and Mr Kenyatta. Mr Ruto has argued that having supported Mr Kenyatta in the 2002 election, it was the latter’s turn to mobilise his community to return the favour.
It is noteworthy that one cannot liberally replace his running mate to accommodate emerging political interests during the run-off election. In a rare move, Mr Odinga on Tuesday declared support for the prosecution’s request to have the Uhuru-Ruto trials after the elections.
Dismissed claim
The two accused have built the case that Mr Odinga had engineered the ICC proceedings with the aim of locking them out of the presidential race, a claim he has dismissed saying he had voted for a local tribunal to try those suspected to be responsible for the post-election violence.
“All those competing for the top seat need to be on the ballot paper,” he said. “This will give Kenyans a chance to choose their preferred leaders. There will be no reason for anyone to say that Raila prevented them from vying for an elective seat,” he said.
In an environment in which political mobilisation revolves around tribes, each of the candidates will find himself in his corner: Mr Odinga (Luo Nyanza), Mr Kenyatta with central Kenya, Mr Kalonzo (Ukambani), Mr Ruto (Kalenjin Rift Valley), and Mr Mudavadi (Western).
This means that the successful candidate will be one likely to attract meaningful support from outside his home base.
Distant third
Another university lecturer, Herbert Kerre, advances an argument that seems to erect an hurdle on Mr Mudavadi’s path.
He says: “In a scenario where Mr Mudavadi’s Luhya support base realises that he is not the suspects’ fall-back candidate and likelihood of him emerging a distant third or fourth in the election, then they might reconsider their support for him and probably troop back to ODM.”
However, the Kabianga University College communications scholar maintains that all this could change if the courts enforce the spirit and letter of Chapter six of the Constitution which demands that state officers bring “honour and dignity” to the nation and offices they hold in trust for the people.
In March, Chief Justice Willy Mutunga issued a warning that he will not hesitate to use Chapter Six of the Constitution on Leadership and Integrity to prevent politicians of questionable integrity from seeking elective office in the General Election.
On Tuesday, the prosecution requested the judges to ensure that the trial dates for the two cases were as close as possible to “avoid tensions that would arise if one of the cases is moving faster than the other”.
The other suspects in the case are former head of Public Service Francis Muthaura and journalist Joshua arap Sang.
