The rejection by House Speaker Kenneth Marende of the list of nominees to key constitutional offices has dealt a heavy blow to the diplomatic offensive by President Kibaki designed to show the world that Kenya can try post-election violence suspects at home.
The rejection came in a week when Nairobi had summoned its diplomats in key countries around the world to a briefing on the President’s desire to have the ICC cases deferred for a year to allow time for local structures to be set up to try the suspects.
But the diplomats face a tall order: to shore up the intensive efforts by the government to have Kenya’s ICC case referred back to local courts at a time when their bosses in Nairobi are reading from different scripts.
On the matter of the nomination of key constitutional office bearers, President Kibaki insists he followed the law, while Prime Minister Raila Odinga says the law was not followed.
House Speaker Kenneth Marende has dismissed the nominations, while the High Court has temporarily ruled they were unconstitutional.
If the diplomats had a difficult assignment ahead of them when they left Harambee House last Tuesday, the task has just become tougher.
The request by Kenya – President Kibaki has already dispatched a letter to the UN Security Council – is based on the premise that the country is reforming its judicial institutions and making key appointments.
It is instructive to note that the nominations for the offices of Chief Justice, Director of Public Prosecutions, Attorney-General and Director of Budget were done hurriedly ahead of the African Union Summit in Addis Ababa earlier this month.
The announcements were made hours before President Kibaki left for the summit at which the government lobbied African nations for political support for the deferral.
While the President’s advisers thought the Head of State needed urgently to demonstrate to his peers that Kenya was serious about key judicial reforms and appointments, Prime Minister Raila Odinga and his advisers opposed the idea.
But the President’s men pushed on with their agenda, which included summoning Kenyan diplomats home last week for a briefing on how they were to take the message to the rest of the world.
The diplomats first met last Monday at a session chaired by Foreign Affairs assistant minister Richard Onyonka and were addressed by the President’s adviser on constitutional matters Prof Kivutha Kibwana, Solicitor General Wanjuki Muchemi and Kenya’s ambassador to the AU Monica Juma.
By late Friday afternoon, sources familiar with the diplomatic meetings told the Sunday Nation that government officials were fine-tuning the wording of a document, known in diplomatic circles as an aide memoire, which the envoys would use as the common text to lobby for President Kibaki’s position at their duty stations.
Some of the diplomats, according to those who attended the meetings but are not authorised to speak to the media, questioned the feasibility of such a position, given that the Prime Minister had dissented from it.
Sources at the meeting, which was closed to the media, said Juma’s presentation centred on her experience lobbying AU members in Addis Ababa to support Kenya’s quest for deferral.
According to that position, the AU’s political support was crucial since the ICC has been accused of concentrating its prosecution efforts on figures in African countries.
ICC investigations and prosecutions are under way in Northern Uganda, the Democratic Republic of Congo, the Darfur region of Sudan and the Central African Republic, all of which are in Africa.
The prosecutor’s office is also analysing what it calls other areas of concern and is monitoring the situation in two other African countries - Kenya and Chad - as well as in Colombia, Afghanistan, and Georgia.
Vice-President Kalonzo Musyoka, the man who spearheaded the shuttle diplomacy to inform world leaders that Kenya is ready to handle the prosecutions arising from the 2008 violence, is deeply disturbed by last Thursday’s turn of events.
“How can the Speaker’s ruling not be seen to be heavily leaning on one side of the coalition when he has taken the PM’s claim of lack of consultation as the gospel truth?” asked the VP through his spokesperson Kaplich Barsito.
“To Marende, compromise is the Premier publicly saying amen to the nominations. What if his objection was not motivated by the need for consensus but a compelling desire to block the deferral request initiated by the President? And that seems to be the case, given that he has written to the UN Security Council disowning the request. Where does that leave the Speaker? Still an impartial arbiter?” asked Mr Musyoka.
The PM’s adviser, Salim Lone, however, told the Sunday Nation that Mr Odinga had not written to the UN Security Council to disown President Kibaki’s position. But he has publicly said that he does not support the shuttle diplomacy.
International law expert Eusebio Wanyama said that in light of the Speaker’s ruling, the sections of government pushing for deferral would be well advised to shelve the idea.
“Trying to block the ICC process when there is nothing happening on the local front means the next thing you will face are embargoes,” he said.
Law professor Kindiki Kithure said that the internal incoherence of the principals serves as a major setback to Kenya’s bargaining power.
“The Security Council is a political entity and they have to determine that if they don’t defer, it constitutes a threat to international peace and security, and that’s a political decision. That’s why the genocide in Rwanda continued because it was not a threat to international peace and security,” Prof Kindiki said.
But Mr Peter Kagwanja, the PNU strategist, said there is a possibility of working around the problem.
“We still have some breathing space. There are suspicions within the PNU side of things that the whole purpose is for Raila to gain a stranglehold over the Judiciary in order to thwart any effort to weaken the hand of ICC in Kenya. With the ruling, the stakes have gone higher. There are those who are considering bringing the Speaker down,” he said.
The PNU strategist pointed to an analysis of the problems facing the ICC in the current edition of the respected international magazine The Economist to push his argument.
According to the magazine, ICC badly needs to succeed with the Kenyan case to show the world that it is still relevant at a time when it appears to be losing political support from African states, which form the majority of its members.
Despite the optimism in PNU quarters that they will outmanoeuvre Mr Odinga and his position, a European diplomat said Kenya’s campaign to delay trials of suspected post-election violence masterminds may prove futile.
In an interview with this newspaper, Laetitia van den Assum, the Dutch ambassador to Kenya, said it would be “considerably difficult” for Kenya to demonstrate that, if allowed to continue, the trials would be a threat to national peace and security.