Why Kibaki won’t cede on ICC cases

Two letters by President Kibaki stand as a testament to his single-minded effort to stop the Kenyan cases at the International Criminal Court. Both were frowned upon.

On February 28, 2011, he wrote to the UN Security Council warning that two of the Kenyans suspected to have sponsored the 2007/8 violence are front-runners in the presidential race and their prosecution poses a “real and present danger” to Kenya’s security.

In his petition referencing Article 16 of the Rome Statute, he appealed to the council for a one-year delay of the cases to allow Kenya to organise itself and try the suspects at home. The council was not persuaded.

On March 19, 2011 permanent members US, Britain and France rejected the request saying conditions of the article had not been met.

And in September 2011, the President wrote a letter (witness statement) to the ICC distancing former Head of Public Service Francis Muthaura from a meeting at State House where prosecutor Luis Moreno-Ocampo alleges plans were laid to resort to violence.

The pre-trial judges took the witness statement with more than a pinch of salt. In their decision, the judges said they approached “with reservation” statements by people who were themselves directly mentioned to have participated in the meeting with Mungiki representatives.

They ruled that the meeting was confirmed “to the requisite threshold and in considerable detail”.

Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, Mr Muthaura and radio journalist Joshua arap Sang are facing crimes against humanity charges at the ICC.

President Kibaki has knocked on countless doors over the ICC matter. Some people see his unflagging commitment to have the cases tried at home despite unfavorable odds as an attempt to save Mr Kenyatta who is believed to be his favoured successor.

But with the ICC charges hanging over Mr Kenyatta’s head like the sword of Damocles, his presidential ambitions are in the balance.

There is a sense in which the ICC involvement in Kenya has been a nuisance to the Kibaki legacy, an irritation that the President has staked his reputation to address.

President Kibaki will go down in history as the Head of State on whose watch top Kenyans — including the son of Kenya’s founding President — were tried in a foreign land for gross crimes.

Apparently, the save-Uhuru campaign is turning out to be President Kibaki’s last project as he enters the home stretch after his 10 years in office.

And whenever he appears to have hit a dead end, he opens another front even as the new door closes just as fast.

But while some interpret President Kibaki’s spirited campaign as a delicate balancing act to secure his legacy, peaceful retirement and save Jomo’s son, others see it as an act of self-preservation mainly driven by the State House link in the Ocampo narrative.

Although the ICC prosecutor says he has no evidence connecting Mr Kibaki to the violence, some of the President’s supporters have built the case that by the indictment of Mr Muthaura, one of his confidants, the principal State House tenant was the prosecutor’s main target.

Such an argument is certain to harden anyone’s resolve against the proceedings and trigger considerable restlessness.

“The person they want is (President) Kibaki that is why they have touched on our four brothers. We must pray to God that their appeals go through at ICC so that the President can enjoy his retirement peacefully,” said Vice-President Kalonzo Musyoka in a February 1, 2012 “prayer” meeting in Meru.

For the past two years, President Kibaki has been adamant in his central push to stop the ICC proceedings.

Mr Herbert Kerre of Kabianga University College reckons that the campaign is about the President’s future after State House — it is a fight for peaceful retirement.

“President Kibaki is very intelligent,” says the lecturer.

“He is not pre-occupied with the present. He is looking beyond his reign. He cannot be confident about the turn of events touching on the ICC proceedings after he retires to Othaya and his influence becomes marginal.

“If truth be told, it is easier to haul him out to the ICC when he is not president. Every passing day towards retirement is a nightmare for him,” says Mr Kerre.

Reacted with anger

State House has always reacted with anger over the allegation that a meeting to plan violent acts took place there.

“No such meetings took place at State House and are indeed the product of the imagination of the so-called anonymous prosecution witness,” it has said.

Recently the special court for Sierra Leone found former Liberian president Samuel Taylor guilty of war crimes, demonstrating that international law is no respecter of rank.

And former Ivorian President Laurent Bgagbo is detained at The Hague ICC over war crimes charges.

The lecturer argues that President Kibaki’s support for Mr Kenyatta could be partly explained by concerns over ICC as well as the fact they share a common view, what he calls “the advancement of the Gema hegemony”.

President Kibaki’s attempts to have the cases handled at home is a long, tedious but spirited journey stretching back to 2009. But has been defined by failure.

The largely unsuccessful campaign has been fought at home and away — in and outside the court—mainly executed as a two-pronged onslaught involving international diplomatic channels and direct engagement with ICC.

The latest is the effort by the Africa Union to expand its court to enable it to take over the ICC cases involving Africans including the Ocampo Four.

AU attorneys-general are currently fine-tuning amendments to expand the jurisdiction of the African Court of Justice and Human and Peoples’ Rights to deal with international crimes such as genocide, crimes against humanity and war crimes.

The AU effort comes barely three weeks after President Kibaki successfully lobbied his peers in East Africa and secured a resolution that the jurisdiction of the regional court be expanded to cover crimes against humanity.

Then the Kenyan cases could be referred to the court. However, the Law Society of Kenya swiftly denounced the move saying the Arusha-based court was not the place for the case.

“Under international law where there is failure by a state to exercise its criminal jurisdiction over those responsible for international crimes or where the state is incapable of doing so, the appropriate forum is the ICC under the Rome Statute or an ad hoc tribunal to be established by the United Nations,” said LSK chairman Eric Mutua.