Why ICC pair might not contest presidency

The dominant narrative from opinion polls in the last two years has been the rapid rise in Uhuru Kenyatta’s popularity.

Mr Kenyatta was seen as an outsider in the race to succeed Mr Kibaki around August 2010 when the new Constitution was endorsed. Prime Minister Raila Odinga was polling at 47 per cent, only three percentage points below the 50 per cent threshold required to win the presidency in the first round.

Mr Kenyatta was rated by Synovate 37 percentage points behind Mr Odinga.

The Kanu leader has climbed gradually and closed the gap in every subsequent poll. The latest survey released this month put him only 10 percentage points behind Mr Odinga at 22 per cent. One poll showed him beating the Prime Minister in a run-off by three points.

Yet there was always a giant question mark hanging over Mr Kenyatta’s presidential ambitions.

Since International Criminal Court chief prosecutor Luis Moreno-Ocampo named Mr Kenyatta and his nominal ally Eldoret North MP William Ruto in his list of suspects on December 15, 2010, it became clear that the pair would struggle to fulfil their dream of clinching State House in the next elections.

There is nothing in the Constitution explicitly barring them from contesting in the next elections. With considerable foresight, MPs allied to the pair succeeded in amending the draft constitution in the pre-referendum retreat in Naivasha to state that one shall be eligible to run until they have exhausted all avenues of appeal.

But the reality is that it is hard to imagine a presidential run by someone facing charges of crimes against humanity at The Hague in modern day Kenya.

With its vigorous civil society, vocal media, independent Judiciary and outspoken urban population, Kenya is different from other countries where individuals with political ambitions have been indicted such as Omar al-Bashir’s Sudan or the Democratic Republic of Congo where Jean Pierre Bemba vied for the presidency in 2006.

The post-pretrial hearings calendar in The Hague is long and drawn out. First, the suspects will have to spend about two or three months persuading the three-judge bench that heard their case that they have good grounds on which to appeal.

The matter will then be sent to the appeal chamber which will take another several months to reach a decision.

If the appeals are rejected, the process of constituting a trial bench with a different set of judges will begin followed by a trial which could last years.

In effect, Mr Kenyatta and Mr Ruto have no choice but to accept the reality that they have only a very slim chance of being viable presidential candidates in the next General Election.

The fact they may well not be on the ballot paper, though, does not mean that they will not have an influence on the outcome of the elections.

History shows that in the immediate aftermath of an ethnically charged conflict, rival communities often retreat into a defensive shell with many downplaying the scale of the conflict and any role that their leadership may have played in the unrest.

This defensive crouch and victim status can result in greater popularity for the individuals in question.

Nowhere is this illustrated better than in Serbia where hundreds of thousands of Croats, Bosnian Muslims and other ethnic Albanians were killed in a campaign of ethnic cleansing initiated by Serbian nationalists in the 1990s.
The figures accused of perpetrating those atrocities remained massively popular among Serbs. No government dared to hand them over to an international tribunal set up to prosecute those responsible. When the former army chief Ratko Mladic, was arrested, thousands rallied in the streets in his support.

In Peru, the former president Alberto Fujimori underwent a trial for crimes against humanity in 2005 with polls taken during proceedings showing that he enjoyed approval ratings above 75 per cent.