The latest standoff in the grand coalition government is part of an orchestrated campaign to stave off the ICC intervention in Kenya’s post-election crisis, the Sunday Nation can report.
Interviews with an array of players in the top political echelons and informed legal circles revealed that the threat of ICC trials facing powerful men and the cut-throat competition to succeed President Kibaki are at the heart of the conflict that has played out over the controversial list of nominees to key constitutional offices.
Part of the scheme is the bare-knuckled effort by the PNU top brass to ensure that Prime Minister Raila Odinga does not succeed President Kibaki next year. Senior PNU politicians believe the PM is keen to use the ICC trials to eliminate competition for the top seat next year.
There is also growing discomfort in sections of PNU that a Raila presidency will most certainly support speedy prosecutions by the International Criminal Court or revive some sensitive cases touching on powerful individuals.
Apparently, forces against the prosecutions have broken ranks and see the controversial nominations as an avenue to size up their opponents.
An international law expert familiar with the workings of the ICC said key players out there have been keenly following recent developments in Nairobi and Kenya risks being designated a hostile State.
“The kind of relationship that existed between the ICC and Kenya is no more because of the shuttle diplomacy to the AU and the letter to the UN Security Council,” said the lawyer who cannot be quoted discussing ICC matters.
“The fact that some of those on the list appear to be controlling everything and President Kibaki appears to agree with them ... They are seen as part of a plot to scuttle the ICC. The ICC thinks that Kenya is an adversary just like Sudan. They may ask some governments to freeze assets and impose travel bans on those deemed to be sabotaging the process,” said the expert.
He added: “Many legal experts expect that there will be indictments and that is why you see the kind of panic there is in government. The ICC is quite happy because of support from the US and the EU. They have been assured that the request for deferral will be rejected.”
In Nairobi, the chairman of the Parliamentary Committee on Justice and Legal Affairs, Mr Ababu Namwamba, told the Sunday Nation that hardliners close to the grand coalition principals were to blame for the current state of affairs.
“This is a tiny piece of the iceberg. The real prize is succession and control over the shaping of the Second Republic,” said Mr Namwamba. “Kibaki and Raila are under divine duty to hold this country together and lay a firm foundation for peace, stability and national unity.”
“In this mission, they have no choice but to stick together, come rain come sunshine. And, to succeed, they may often have to disregard their more hawkish court jesters, especially those absolutely blinded by succession politics,” said Mr Namwamba.
Prime Minister’s adviser Salim Lone says disagreements of the nature that have caught international attention is normal in a coalition government but also sees something more.
“Post-election violence trials have been explicitly mentioned by the President as the cause for urgency of the nominations but succession politics surpasses all political developments,” said Mr Lone. “Of course they can continue to work together. Disagreements are entirely normal in any working relationship. The two principals have disagreed before and yet cooperated closely on most sensitive issues.”
Sources familiar with the PNU strategy said the current stalemate was meant to show Kenyans and the world that some of the people being targeted by the ICC are capable of creating a crisis in government and, by extension, destabilising the country.
“The message is particularly meant for the UN Security Council and other powerful lobbies in European capitals that are keen to see the Kenya case at The Hague,” the source said.
The President’s press chief Isaiah Kabira was terse in response to a query about the working relations between the President and the Prime Minister in light of the latest standoff.
“(The) Speaker should have allowed the Bunge process to run its full course. He interrupted it,” said Mr Kabira.
But PNU vice-chairman George Nyamweya blamed Mr Odinga for the dispute and accused him of undermining the grand coalition government.
“There is no intention to work in good faith. There is the issue of the International Criminal Court and some desperation on his part to see that that is where this thing must end. That is why, although we had a compromise in the legal committee, ODM were instructed to vote against consensus in order to show the world that there is no way forward in Kenya. It’s not just the nominees,” said Mr Nyamweya.
Mr Nyamweya said the Kibaki succession politics had also influenced debate on the nominees.
“Politics is competitive by nature. That’s why you have parties. There is nothing illegitimate in pursuing power. But it becomes unacceptable if you undermine the entire machinery of State,” he said.
He accused Mr Odinga of playing “pushy” politics and creating distractions whenever he didn’t have his way.
“Look at his past behaviour, in 1982, and that’s in his own book, he participated in the coup. Look at what he did to Ford Kenya and Kanu and Narc. When he couldn’t have his way, he brought them down and that is what he is trying to do now with the grand coalition government,” said Mr Nyamweya whose party plans to present a strong candidate to run against Mr Odinga next year.
Mr Nyamweya suggested that his party and ODM rebels would take unspecified action against the PM.
On the other hand, they have launched a plan to overturn the ruling by House Speaker Kenneth Marende last Thursday rejecting the controversial nominations by President Kibaki.
“We want to resolve that issue once and for all so that we can focus on developing the country. There are like-minded MPs who are not interested in these games and, if they take that direction, then they will take it. If you do not have a majority of members, how do you continue in office?” he asked.
On Monday, the dispute over the nominees will play out in court when Justices Kalpana Rawal, George Dulu and Luka Kimaru hear a case — filed by eight non-governmental organisations — challenging the controversial nominations. The finding by the three judges will be final.
The current standoff between the two principals comes at a time when Mr Odinga is facing the challenge of shoring up his political support in the face of the rebellion in his Orange party led by Eldoret North MP William Ruto which comes barely 16 months to the General Election.
On his corner, President Kibaki is faced with the difficulty that his key political and administrative lieutenants face the stark possibility of trial at the ICC.
He is also encumbered by the intrigues of Vice-President Kalonzo Musyoka, Deputy Prime Minister Uhuru Kenyatta and Internal Security Minister George Saitoti, each of whom has presidential ambitions and would like to inherit the President’s political mantle.
Law Society of Kenya chairman Kenneth Akide told the Sunday Nation that political divisions had clouded last week’s debate in Parliament and the House had failed Kenyans.
“What we all saw in Parliament was a question of committee members wanting to fight either for their leader in ODM or PNU. We think that Parliament, as an arena, did not give Kenyans the guidance they require,” said Mr Akide.
“Parliament is so fragmented and an unreliable source at the moment because MPs are all positioning themselves for 2012. The battle for succession is involved going by the manner in which Parliament has conducted itself,” said the LSK chief.
He added: “Committees traditionally are the experts who are supposed to listen to the people and advise the House. They all disagreed and, if you look at them, they have turned into a circus. ODM lawyers see nothing except what favours their party leaders and PNU lawyers likewise.”
Mr Akide asked the three judges who have been appointed to interpret the Constitution over the dispute to consider the weight of the matter in their hands.
Winnie Mitullah, political science professor at the University of Nairobi, said the public was disillusioned by the principals’ failure to work together and urged them to find a political accommodation that would avoid sabotaging the review process.
“Whenever two bulls fight, it’s the grass, in this case the people and their aspirations for quick implementation of the Constitution, that suffers. All the voices of the people that have spoken on this have urged the politicians to take a more conciliatory path and there is still time to do so,” said Prof Mitullah.