ICC indictments deprive president-elect Uhuru of honeymoon after poll victory

A victorious presidential candidate usually has a honeymoon period of 100 days or so.

That is the time required after the celebrations to familiarise oneself with the kitchens, bathrooms, offices, family quarters and all the nooks and crannies of State House.

One also needs time to get acquainted with the protocol and security restrictions demanded by high office; shape a new administration, make key appointments and reward friends and cronies; and start thinking about how to fulfill campaign pledges.

President Uhuru Kenyatta will have no such luxury. He will be sworn into office with his Deputy President William Ruto when both are weighed down with the leg-irons of the International Criminal Court.

Even before they get down to the business of forming a government and settling down at the colonial -era State House and the deputy president’s swanky new mansion, the tag-team bound together by the ICC indictments will be looked upon to give clear and unequivocal indications on how they will handle the international court.

They will already have noted that routine messages from US Secretary of State John Kerry and United Nations Secretary-General Ban Ki-moon limited themselves to lauding the Kenyan people for a peaceful election but consciously refrained from congratulating by name the president-elect and his running-mate.

Powerful snub

That is powerful snub reflecting the west’s disapproval of a pair indicted by The Hague-based court for war crimes winning the mandate to lead Kenya.

Both Mr Kenyatta and Mr Ruto in the course of campaigns restated as often needed that they would continue to cooperate with the ICC.

Indeed, they cooperated fully during the pre-trial and confirmation hearings, faithfully attending court at The Hague and behaving with the courtesy expected of any criminal suspect.

However, the ball game has changed. Mr Kenyatta and Mr Ruto ran for president as a team to not just to drive home the point that they shared a common predicament. They went out to exploit the ICC indictments in whipping up rage in their respective backyards alleged foreign meddling and victimisation.

The more western nation and domestic foes raised issues of eligibility to stand for office while facing trial, and the more the threat was brandished of trade and diplomatic sanctions if ICC suspects were elected, the more that was parlayed into fanatical support in their home regions.

The played the victim of western pressure and transformed themselves into near-mythical heroes and champions of their respective ethnic blocs. Their standing for office was not just pursuit of power, but also intended, in their own words, as an opportunity for Kenyans to vote in a referendum on the ICC.

Kenyans have spoken and elected a pair indicted by the ICC.

Now it might be justifiable to make the pitch that Kenyans have decided to no longer cooperate with the ICC, and therefore the leadership has no choice by to comply with the will of the people.

That will be the decision keenly watched, for it is what would determine whether Kenya remains a respected member of the global community, or whether it will reduce itself to pariah state, be shunned and exposed to damaging trade sanctions that could cripple the economy.

Mr Kenyatta’s instinct might be to continue cooperating, especially as his legal team is expressing growing confidence that the case facing him at The Hague is shaky and more than likely to collapse.

However Mr Kenyatta has whipped up emotions among a constituency that might interpret any decision to travel to attend the ICC hearings as a sign of weakness and a case of willingly going into the enemies’ clutches.

This is the constituency that has willingly lapped up the rhetoric that the whole ICC case was a western conspiracy to punish the son of Jomo Kenyatta who led the country to Independence.

A fanatical cult following has been built up around Mr Kenyatta who, the stories go, inherited his father’s leadership genes; bravely intervened to rescue the Kikuyu people when under siege during the post election violence; and now is being crucified by the British colonial masters who all these years still have a bone to pick for losing out to the Mau Mau.

The narrative takes in President Kibaki, another Kikuyu leader, who has steered Kenya’s diplomatic and trade relations to China and other Asian countries, therefore depriving Britain of a traditional monopoly on supply of many goods and services to Kenya.

Therefore, the ethnic fan base takes it as an article of faith that the British, in concert with their American allies and other western nations, were desperate to prevent Mr Kenyatta succeeding President Kibaki, preferring to support a supposedly more pliable Raila Odinga.

It is mostly campaign propaganda but it has been very effective in elevating Mr Kenyatta to cult hero status among the faithful.

This is the constituency that has come to believe that Kenya can defy the ICC, spurn trade and economic links with the western countries and prosper with developing ties to China and the east.

That China does not dole aid and charity and that Thika road and other big projects are built on tough commercial terms and rather one-sided and opaque financing and procurement arrangements does not cut ice with the true ‘believers’, to borrow from the ‘I Believe’ campaign slogan copied from the US 2012 Republican presidential candidate Mitt Romney.

This is the also the constituency that Mr Kenyatta might now have to persuade that willingly taking the dock at the ICC is not a cowardly move.

He will be under a great deal of pressure from the hardliners dominate his entourage to defy the ICC; but Mr Kenyatta is also a pragmatist, and own with links to a bewildering array interests in banking, finance, insurance, tourism, manufacturing, agriculture and many other fields that are intractably tied to western markets and partnerships.

Tough anti-west rhetoric is one thing, but Mr Kenyatta and many of his associates know that a stable and growing economy will not happen through moves that might attract punitive sanctions.

Growing links with China are useful and provide a profitable means of playing one against the other, but China will not suddenly develop a big appetite for Kenyan tea, coffee, flowers and vegetables. Neither will it in an instant start sending planeloads of high-spending tourists to Kenyan beaches and national parks.

The president-elect and his associates know that sanctions would deal an almost instant blow to the Kenyan economy. The threat of shilling going into Zimbabwe-style freefall, hyper-inflation, loss of markets for key exports and closure of international credit facilities is a language that Mr Kenyatta would understand.

He will have to educate his followers that they would not even want to contemplate such an eventuality.

Easily lost in all the noisy debates, however, is that no western nation ever specifically threatened trade sanctions and diplomatic isolation if Mr Kenyatta was elected. That has been a card mostly played-up by Mr Kenyatta’s political opponents, civil society groups and newspaper commentators.

The biggest threat has been mild disapproval of a Kenyatta government to be expressed through, as recently out by European Union diplomats, ‘limited contact’.

President Kenyatta, like President Kibaki before him, might not be too worried by limited contact as he will not see lack of invites to diplomatic cocktails as a big thing.

The threat of sanctions will only loom large if the ICC is defied, but otherwise mere disapproval might not matter much if a smart foreign policy exploits Kenya’s unrivalled security and strategic importance in the wider eastern African region.

Of more immediate concern to Mr Kenyatta and Mr Ruto might be how to govern in absentia attending trial at The Hague.

They have reassured their loyal supporters that they run the government through Skype, or operating a relay system so that when one is in the dock the other is at home running affairs of State.

That will not happen. The ICC timetable is unlikely to be altered to suit the schedule of the suspect in the dock. Neither will one facing trial have the opportunity to fly in and out of the court’s jurisdiction at will. It has been made clear that once the trials start, the accused will have to remain within The Hague except during given periods in the court calendar when there are notable recesses.

Strong bargaining position

There is the possibility, of course, that in the unprecedented situation of a sitting Head of State facing trial, the ICC may be quite accommodative and the accused may be in strong bargaining position.

However if lengthy presence at The Hague is mandatory, together with the threat of arrest in case of defiance, Mr Kenyatta and Mr Ruto might seriously want to consider if it is tenable to remain in office.

They have made an extremely powerful point by overcoming all sorts of hurdles — the stigma of indictment, eligibility challenges, international pressure, domestic pressure — to win the highest office in the land.

They have won the mandate of Kenyans and proved their contention that leadership will be determined by the voters, not by external pressures or the courts.

They might well consider that Kenya would be better off if they voluntarily stepped down to concentrate on their trials. They might be in position to prop up surrogates in a by-election to hold power on their behalf until the appropriate time.

That might however be an unlikely option for anyone savouring the power of office. More likely would be impeachment proceedings based on the provisions that require public officers charged with criminal offenses to step down.

The problem with impeachment is that it is often more a political rather than judicial process, where the result would be determined more by the party strength in the Legislature rather than by legal arguments.