Why it will not be easy to lay the ICC ghost to rest

The ending of the Kenyan cases before the International Criminal Court (ICC) provides an opportunity for national introspection on what the cases have meant for the country and how to overcome the challenges that the country’s association with the trials has brought about.

Mr Uhuru Kenyatta and Mr William Ruto, running for high office while facing charges before the ICC, were keen to assure a nervous public that their possible election to office as President and Deputy President would have no effects for the country.

They famously declared that they considered the cases against them as a “personal challenge” into which they would not drag the country and assured that they would run the country separately from their trials before the ICC.

In truth, however, they were campaigning on an anti-ICC platform and, once in power, their cases became the centrepiece of the country’s domestic and foreign policy, thus merging the personal with the national.

As part of this, Jubilee has selected its domestic and foreign friends and enemies on the basis of whether these shared the same world view as the ruling coalition about the ICC.

By offering their candidature for President and Deputy President while facing charges before the ICC, Kenyatta and Ruto presented the country with a choice between principle and popularity.

If the country chose principle as expected by the Constitution, the two would have been barred from running for office as their candidature fell short of the integrity provisions of the Constitution.

However, under the considerable pressure that they had packed into the campaign, public institutions that were required to resolve this issue wilted and, as a result, the country chose popularity and allowed the two to run for office.

SENSE OF EXCLUSION

In their campaign, Kenyatta and Ruto had unleashed a primordial card, in which they presented their troubles with the ICC as vicarious liability incurred while defending their people during the post-election violence. Once in power and now unsure about how the ICC trials would turn out, the two went on to pack key government positions with loyal co-ethnics, insurance against the uncertainties of an ICC trial.

While Kenyatta and Ruto have presented their government as an act of reconciliation between their co-ethnics, who had been involved on opposing sides in the post-election violence, the Jubilee Government, in truth, has largely been a private enterprise for the two leaders, and the country has never had to endure such a strong sense of exclusion.

In retrospect, the fact that the country allowed Kenyatta and Ruto to assume power while facing charges before the ICC has to be seen as a major repudiation of the path of high principle that had been chosen through the newly-enacted Constitution in 2010.

Coupled with the ruinous exclusivity that has characterised their stay in office, the short life under Jubilee has left the country dangerously divided.

Elections are coming again next year and with the cases before the ICC now ended, an opportunity to shed the load the ICC has cast on the country’s life exists. However, it will not be easy to lay the ICC ghost to rest: although the cases are over, they have ended on terms that leave open the possibility that Kenyatta and Ruto can face charges again if fresh evidence against them can be found.

While this possibility is probably remote, the fear of the ICC will continue to motivate the two to remain in power and will be a factor in the hunger with which they will seek a second term in office.

Because carrying the ICC cases as a national rather than personal issue has been disastrous for the country, the opportunity to change things presents itself with the elections next year.

JUBILEE IN POWER

Naturally, the starting point is to ask if the opposition, Cord, is good enough to take the place of Jubilee. Sections of the population consider that Cord is not better than Jubilee and, therefore, conclude that it would be better to retain Jubilee in power even against its poor record of the last four years.

If made in good faith, rather than as an apology for Jubilee’s shortcomings, the conclusion that Cord is not better than Jubilee is fair and only means that the opposition coalition has it all to do to convince the electorate that it is ready to govern.

The early indication is that Jubilee will employ the approach it had in 2013, of working to retain the support of the co-ethnics of the President and Deputy President and then finding a filler block of votes from somewhere, most likely through an elite purchase of an ethnic leader elsewhere.

It would be a mistake for Cord to try and match Jubilee’s methods. Jubilee has more money than Cord and will also be sure to use the state machinery in getting the elections to go its way.

What the country needs is not an opposition made up of opposing tribes to the coalition that Jubilee will put together but, an opposition based on saving the country from the dangerous divisions into which it has been driven.

To this end, only a coalition of values, rather than opposing tribes, will be a match for Jubilee. Such a coalition can seek to appeal to the co-ethnics of the President and Deputy President, that the agenda to save Kenya is bigger than what Jubilee currently represents.

Elections 2017 can be a choice between parochialism and assured self-destruction, on the one hand, and inclusivity and nation-building on the other.

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