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ICC ruling likely to be a political game changer

Saturday January 21 2012

By MUGUMO MUNENE [email protected] and LILLIAN ONYANGO [email protected]

The much-awaited verdict by the Pre-Trial Chamber II of the International Criminal Court on the six Kenyans is expected to permanently alter the political landscape as the country prepares for the next General Election. (READ: ICC Judges to decide fate of Ocampo six on Monday)

If the charges are confirmed on Monday, it is likely Deputy Prime Minister Uhuru Kenyatta, Civil Service Chief Francis Muthaura and Postmaster General Hussein Ali may be found unsuitable or unable to discharge their official functions.

Prime Minister Raila Odinga may also have to fire suspended Industrialisation minister and ODM chairman Henry Kosgey if the charges against him are confirmed.

The departure of Mr Kenyatta and Mr Muthaura from the Kibaki court would mean that the Head of State, who retires later in the year, would have to appoint new faces to these key government positions.

Mr Muthaura is Kenya’s highest ranking civil servant and is perceived to be the powerful fulcrum around which the presidency operates.

Mr Kenyatta, Mr Muthaura, Maj-Gen (rtd) Ali and Mr Kosgey were named alongside Eldoret North MP William Ruto and radio journalist Joshua arap Sang on suspicion of bearing the greatest responsibility for the most serious crimes committed during the post-election violence.


They have all protested their innocence and assembled top-notch legal defence teams to fight the charges.

On Saturday, the suspects were guarded about how they would prepare for and where they would receive the court’s ruling.

The International Crisis Group, a global anti-conflict watchdog, says in a report on the Kenyan case that the ICC verdict would have a direct bearing on Kenya’s political landscape.

“The ICC’s action is now an inescapable element of the political process as Kenya heads to elections.

Even if an early confirmation of charges may not legally prevent the suspects from running for office, the risk of conviction would affect supporters and allies. The timing and framing of proceedings and decisions can lower or increase volatile tensions,” the International Crisis Group says.

On the other hand, the crisis group estimates, if all the charges are dropped, it is likely that the alliance between Mr Kenyatta and Mr Ruto would not hold and each would run their own presidential campaign.

On the other hand, at the hearing in The Hague, Mr Kenyatta told the judges that Mr Odinga bore political responsibility for the violence. The message that the case was politically motivated would be repeated at the campaigns.

It remains the discretion of the ICC whether, if charges are confirmed, the suspects will remain free men or be taken into custody if they are found, for instance, to be interfering with witnesses or demeaning the court.

Since their return from the confirmation of charges hearing, the suspects have avoided speaking ill of the court in public rallies or news conferences.

There has also been no hullabaloo and no public rallies and prayers, especially for Mr Ruto and Mr Kenyatta.

There has also been no hate speech from them and their supporters following a warning by Judge Ekaterina Trendafilova in April last year.

On return from The Hague, it was only Mr Ruto whose arrival was recorded by the media while the rest chose to return and resume their lives quietly. The suspects were named by ICC chief prosecutor Luis Moreno-Ocampo on December 15, 2010, touching off calls from civil society for those holding public office to step down.

Just hours after the names were released, President Kibaki rejected calls to have those in public office sacked.

“I wish to state that the people who have been mentioned have not yet been fully investigated as the pre-trial process in The Hague has only but begun. They therefore cannot be judged as guilty until the charges are confirmed by the court,” the President said in a terse dispatch from the Presidential Press Service to newsrooms.

The President said at the time that calls for action against those named were “prejudicial, preemptive and against the rules of natural justice”.

On that day, the President also announced that the government was fully committed to establishing a local tribunal, plans which have since been placed by the Cabinet in the cooler.

On the other hand, if the judges drop charges, it will grant the six suspects a new lease of life in every sphere of their operation. The most dramatic outcome is likely to be noticed in the political careers of Mr Kenyatta and Mr Ruto, both of whom have said they are running for the presidency at the elections, regardless of the verdict on Monday. (READ: ICC: Mutula dismisses Uhuru, Ruto presidential bid)

On Saturday, the BBC published an interview with Mr Kenyatta in which he said he remains in the race for State House.

“I will not sit here and tell you that it has been easy. It’s been very difficult. I have never believed that there was any reason or justification for my name being put forward. But, as a believer in the rule of law, we will ultimately be found innocent,” Mr Kenyatta told the BBC.

The deputy PM said that the ICC process had not affected his political ambitions “whatsoever” but that his family had been affected. “It’s not easy for one’s children to hear that you have been accused of international crimes and yet you know you are innocent and they know what you are capable of and what you are not capable of,” Mr Kenyatta said.

On Saturday, Mr Muthaura spoke about his expectations and hopes. “I’m praying to God and I’m sure the court will do justice,” he told journalists in Nairobi.

And, in a dramatic twist, Commission for the Implementation of the Constitution chairman Charles Nyachae said that there was nothing in Kenyan law that bars anyone from running for elective office.

In a statement released to newsrooms, Mr Nyachae said that his commission was of the view that Chapter Six of the Constitution, which deals with leadership and integrity, cannot be enforced before Parliament passes the necessary laws.

“In our view, therefore, there exists no legal bar to any candidate, whether charged in Kenya or under international law, to offer themselves for election.

“Furthermore, on the continued holding of public office, the only legal provisions that call for suspension of public officers charged with offences are in the Anti-Corruption and Economic Crimes Act which require a public officer to be suspended once they are charged with economic crimes. The proposed legislation under Article 80 will address this aspect too,” Mr Nyachae said.

In their view, those in office could continue holding office even if charges against them are confirmed.

According to a Catholic Church sponsored survey, a majority of Kenyans think that politicians’ fear of the International Criminal Court would lead to a peaceful General Election.

They also believe that the formation of a new electoral body, reforms in the judiciary and police department as well as the adverse effects of the post-election violence are other factors that would see a quiet transition take place.

The nationwide research carried out by the Jesuit Hakimani Centre found that 62 per cent of respondents believed the ICC process would deter future violence.

However, 24.4 per cent fear that it could swing either way while 13.5 per cent are worried that the elections would not be peaceful, some attributing it to the fact that some of the politicians in the run for various offices had not changed.

The research, conducted in November and December 2011, focused on certain thematic areas: good governance, economic justice, media and political communications as well as religion and politics.

Speaking at the opening of the two-day conference on the Preparedness of Kenya Towards the 2012 General Election, where the findings were released, Chairman of the Kenya Episcopal Conference, Archbishop Zacchaeus Okoth, urged Kenyans to shun tribalism.