Kenya is free at last, time to talk healing and reconciliation

Kenya is free at last! The collapse of the last of the Kenyan cases at the Hague-based International Criminal Court (ICC) against Deputy President William Ruto and radio journalist Joshua arap Sang on April 5, 2016 marked the end of over six years of “judicial colonisation” and meddling in Kenya’s internal affairs by external forces.

Kenya’s experience with the ICC proves, yet again, that “courts cannot end civil wars.” The ICC is a crude instrument of advancing the cause of peace and national reconciliation in divided countries plagued by instability and violent conflict.

In earlier centuries, civil wars — from the English Civil War (1642-1651) to the American Civil War (1861-1865) and to the Nigerian (Biafra) Civil War (1967-1970) — served as the anvil on which nations were forged.

In contrast, in the 21st century, the “rights of victims” of civil wars are pervasively used to justify external intervention and “re-colonisation” of Africa.

The Argentine ICC Chief Prosecutor, Mr Luis Moreno-Ocampo, exemplified the hubris of the new age of “judicial imperialism”. On December 15, 2010, he issued the sabre-rattling threat to make Kenya a “world example on managing violence”.

Ocampo proceeded to name six prominent Kenyans — including Uhuru Kenyatta and William Ruto — as those bearing the highest responsibility for the 2008 post-election violence.

Since then, Kenya has become a living example of how the ICC and its external prompters have mismanaged violence and undermined sustainable peace in fragile African countries. It has wasted Kenya’s energies, time and resources needed for national healing, reconciliation and development.

Six years on, Kenya is now back to where it was in April 2008, when its warring elites agreed to sign the National Accord and Reconciliation Act of 2008, ending the fighting and paving the way for national reconciliation along the lines of South Africa’s CODESA process.

Materially, when finally computed, the total amount of dollars wasted in the Kenyan cases, including a cavalier witness procurement and protection syndicate, botched trials as well as legal, travel, accommodation and related costs imposed on Kenyans by the trials over a period of six years, will far outstrip the amount needed to repay and resettle all the victims of cycles of post-election violence from 1991 to 2008!

Politically, far from making Kenya a “world example on managing violence,” the ICC has not only evolved into a dangerous fault-line in the country’s politics, it has also left behind a badly divided political class.

In a statement following the termination of the cases, Kenyatta fittingly described the ICC trials as “a six year nightmare for the Kenyan nation”. Two years ago, this column drew three possible scenarios relating to the potential outcomes of the Hague trial (SN, November 31, 2013).

We identified the first as the “doomsday scenario”: the “double conviction” of Kenyatta and Ruto. This outcome would have amounted to political decapitation of the Kenyan state, necessitating a radical reconfiguration of power, with a potential for national instability.

However, the duo astutely rode on the ICC cases against them to galvanise popular support in Central Kenya and the Rift Valley and won the 2013 election.

Inversely, because of his public support for the ICC, Odinga was seen as an ally of Western forces who sought to prosecute and jail Jubilee leaders. He lost the Rift Valley vote, and the election.

Kenyatta’s acquittal on December 5, 2014 eventually led to the eventual collapse of the double conviction scenario.
It also amplified the “Split ruling” scenario: the acquittal of Kenyatta and the possible conviction of his deputy.

SUPREMACY STRUGGLE

Because Article 149 (1) of the new Constitution requires the president to nominate a deputy to fill the vacancy that may be created by the conviction of Ruto by ICC, a fierce supremacy struggle ensued within the Kalenjin elite in Jubilee. This struggle reached its acme during the recently concluded Kericho bye-election where Gideon Moi and Kanu challenged Ruto’s dominance, but lost.

Moi was accused of exploiting Ruto’s misfortunes to establish himself as the Kalenjin best suited to replace Ruto as Uhuru Kenyatta’s partner. In the same token, Jubilee rebels such as Bomet Governor Isaac Ruto and Nandi Hills MP Alfred Keter preyed on the widespread fear of a Ruto conviction to challenge President Kenyatta’s Jubilee leadership, accusing him of abandoning Ruto and short-changing his Kalenjin partners.

A few days to the ICC judgment, the rebels upped the ante, warning Kenyatta that if Ruto was jailed, it will have proved that he had not done enough to free him.

The termination of the case has led to the collapse of the split ruling scenario and given rise to the third, and the best case, scenario: the double-acquittal of Kenyatta and Ruto.

The double-acquittal scenario has far-reaching implications for the Jubilee unity and power. It has significance for Kalenjin unity and the future of power in the Rift Valley. Ruto is now free to move against his challengers and reassert his supremacy. A clash with Kanu and the Moi family is inevitable.

Within Jubilee, the ICC ceases to be the tie that binds the Jubilee party, demanding an alternative bond. One possible scenario is the disintegration of Jubilee power if the principals decide to launch separate bids for the presidency next year — an highly unlikely scenario.

The more likely scenario is that Jubilee unity remains intact and stronger. Jubilee is already exploiting the “victory over the ICC” and tapping into the wellsprings of nationalism to re-energise its support base. It has organised a thanksgiving service at Afraha Stadium in Nakuru on April 16, 2016.

In the ensuing battle for the heart and minds of Kenyan voters, attention is shifting to the future of victims as a galvanising ideological issue likely to define the road to 2017.

Jubilee, however, appears determined to keep pressure on Odinga over the ICC tragedy. “The real perpetrators of the violence are yet to be tried,” President Kenyatta declared.

However, a comprehensive strategy of restorative justice can repair relations between communities, heal the nation and address justice, reparations and resettlement issues of the victims. It is also the surest way of silencing the war drums ahead of 2017.

Steering clear of violence is Kenya’s best guarantee for safeguarding its freedom from external interference.

Prof Kagwanja teaches at the Institute of Diplomacy and International Studies (IDIS), University of Nairobi, [email protected]