Why ICC status conference will be of interest not just to the accused

When the status conference on the mechanics of the trial of Kenyan suspects at the International Criminal Court begins this week, it will not just be the accused and their supporters who will take a keen interest.

The proceedings in The Hague will have a major impact on the next elections and will play a big role in determining whether Uhuru Kenyatta and William Ruto can run for election.

The question of whether or not the pair will be on the ballot paper will also have a considerable impact on the fortunes of the other key challengers in the Kibaki succession such as Prime Minister Raila Odinga, Deputy Prime Minister Musalia Mudavadi, Vice-President Kalonzo Musyoka, Internal Security minister George Saitoti and Narc-Kenya leader Martha Karua.

The status conference is primarily designed to serve legal purposes: It will determine the programme for disclosure of evidence to defence lawyers to help them prepare for the trial.

But in an electoral season domestically, the most watched issue will be the date of the trial settled upon by the Trial Chamber.

If the court decides on a trial date which coincides with the campaign period ahead of the elections in March 2013 it is almost certain that it will mean that Mr Kenyatta and Mr Ruto will not contest the election.

It would be a logistical nightmare for them to attend the trials and participate in the election campaigns.

However, their absence from the presidential race would have far-reaching implications on the Kibaki succession largely because it directly touches on the political fortunes of the other candidates.

Masinde Muliro University lecturer Prof Egara Kabaji says there’s little chance of Mr Kenyatta and Mr Ruto remaining viable presidential candidates, noting that the trials are likely to lock them out.

“The status conference will essentially determine or influence who becomes the next president. If Uhuru is not in the race, the biggest beneficiaries will be one, Prof Saitoti and two, Musalia Mudavadi.

“On the other hand, if Ruto does not run, the beneficiaries will be Musalia Mudavadi and Raila Odinga.” There has been growing speculation that Mr Mudavadi is viewed in State House as a possible fallback candidate in the event that Mr Kenyatta is locked out of contention.

There have been arguments that Mr Mudavadi would not only be a “safe” candidate, but also help in stopping Mr Odinga from seizing the levers of power. This may partly explain the reception that Mr Mudavadi’s candidature has received in Mr Kenyatta’s and Mr Ruto’s strongholds.

However, there will be challenges to the Mudavadi ticket, especially if packaged as the project of the two presidential hopefuls who are facing crimes against humanity charges.

In a recent brief, an international research think-tank noted that a possible Ruto-Uhuru could be branded an “Axis of Impunity” by opponents, who could argue that all that binds them together are anti-reform, pro-impunity credentials.

If embraced by the two, Mr Mudavadi might inherit their support base. However, questions are likely to emerge about the motives behind a possible Ruto-Uhuru support.

There is also concern that with the suspects having entrenched propaganda that Mr Odinga was behind their prosecution, he might face a backlash from their communities.

And, in the event that the two candidates don’t run (especially Mr Kenyatta), Mr Musyoka and Prof Saitoti are waiting in the wings hoping to fill the gap.

Mr Kenyatta yesterday denied suggestions that he will step down from the race and back another candidate while addressing rallies in Samburu. But there have been subtle indications that he is coordinating his political moves with the Sabatia MP.

Last week, Kikuyu elders and some MPs allied to Mr Mudavadi were sent to a political rally addressed by Mr Mudavadi in Kakamega.

Mr Mudavadi also held talks with Eldoret North MP William Ruto a week ago and Mr Ruto was represented in the Kakamega Rally by Mt Elgon MP Fred Kapondi.

Yet it is still far from certain whether the ICC case will proceed before the elections or not.

There is a fresh bid to have the trials postponed within government, with the most intriguing dimension being that, unlike the past when it was mainly the PNU wing of government pushing for a deferral, Prime Minister Raila Odinga is said to have thrown his weight behind the bid to push forward the trial on the basis that it could become an election issue and divide the country before the polls.

Push for deferral

Impeccable sources indicate Mr Odinga has twice met Mr Ruto in the past two months with one of the subjects being the possibility for a joint push for a deferral.

Mr Odinga also sent Cabinet minister Dalmas Otieno to speak to Mr Kenyatta on several occasions in the last few weeks. The ICC matter was on the top of the agenda.

The same matter came up when the Prime Minister met British minister for Africa Henry Bellingham in London after a recent visit to the US and UK.

Mr Kibaki and Mr Odinga are said to have discussed the ICC issue after the President addressed Parliament on April 24 with an agreement being struck to revive the push for a deferral although there are divisions within the PM’s office with some such as Lands minister James Orengo warning that an about-face on the ICC matter would be politically damaging to Mr Odinga.

Officially, the line being pushed is that the reasons to support a postponement of the trials in The Hague are based on the need to improve the chances for a peaceful election.

But there are political reasons why an election where Mr Kenyatta and Mr Ruto feature on the ballot would be advantageous to the PM.

Such a race would probably result in a runoff between Mr Odinga and Mr Kenyatta. That matchup would probably raise the question of the ethnically loaded question of whether a Kikuyu should succeed Mr Kibaki, a calculation which might favour Mr Odinga.

In a 2009 cable to Washington, former US Ambassador Michael Ranneberger raised concern over the possibility of another Kikuyu presidency.

“While conventional wisdom says that another person from the Kikuyu ethnic group cannot succeed President Kibaki due to anti-Kikuyu sentiment prevalent
across much of the Kenyan society, political dynamics that make potential challengers seem weak may be encouraging Uhuru and his potential supporters to rethink this,” he wrote.

He spoke of an “emerging realisation” among Kikuyu professionals and progressive politicians that it “would not be healthy for the nation or wise politically to seek to have another Kikuyu replace Kibaki”.

Another question would be which way the vital Kalenjin vote would swing in a runoff between Mr Odinga and Mr Kenyatta in the event that Mr Kenyatta and Mr Ruto don’t run on the same ticket.

Mr Ruto has declared having supported Mr Kenyatta in the 2002 election, it was the latter’s turn to mobilise his community to return the favour.

A situation where Mr Kenyatta and Mr Ruto throw their backing behind one candidate such as Mr Mudavadi would be another matter.

It would make a runoff between Mr Odinga and Mr Mudavadi extremely competitive with Mr Mudavadi enjoying a possible advantage if the Kikuyu and Kalenjin decide to cast their lot with him.

Other players also feature in this calculation. Prof Saitoti, Ms Karua and Kenya National Congress candidate Peter Kenneth would also be key contenders for the Mt Kenya vote in the absence of Mr Kenyatta. Mr Odinga, too, has established a considerable foothold in areas such as Meru, which in the past solidly voted with President Kibaki.

All this means that when the nation’s attention turns to The Hague at the beginning of the status conference it will be to witness a legal process that could have as big an impact on the political scene as any other factor in the race to take over State House from Mr Kibaki.