Next President faces tough decision over Kenyan suspects’ cases at ICC

Saturday December 8 2012


By entering into the Jubilee Coalition with Mr William Ruto and Mr Uhuru Kenyatta, Deputy Prime Minister Musalia Mudavadi has walked into the theatre of the controversies surrounding the intervention by International Criminal Court (ICC) in Kenya.

A careful man by nature, Mr Mudavadi’s aversion for risk was demonstrated in 2002 when he chose to stick in Kanu to support Mr Kenyatta’s unsuccessful presidential bid as retiring President Moi’s handpicked successor, rather than join the rebellion that led to an exodus from the ruling party and the formation of Narc, on whose ticket President Kibaki came to power.

Mr Ruto and Mr Kenyatta, his two coalition partners, face charges of crimes against humanity before the ICC and their trial starts a few days after Kenya’s elections.

While it was logical that their shared adversity would bring Mr Kenyatta and Mr Ruto together, by joining them, Mr Mudavadi will be forced to actively take their side on their ICC problems.

Although Mr Kenyatta’s supporters have revolted against the idea, there is a discussion within the Jubilee Coalition that Mr Kenyatta should forego his presidential bid and instead support Mr Mudavadi to become the coalition’s presidential candidate.

If Mr Mudavadi runs for president and wins, and if, as planned, Mr Ruto becomes his deputy, a first major question that Mr Mudavadi will have to address as President of Kenya will be whether to continue with the country’s cooperation with the ICC, as a result of which he will have to hand over his deputy, and Mr Kenyatta, for trial before the court. This will be a particularly difficult decision for Mr Mudavadi, given the kingmaker roles that the two would have played for him.

Mr Mudavadi has previously engaged with the ICC question in very measured terms. During his trip to the United Kingdom in October, he issued a statement in which he asserted that all Kenyans were guilty of the post-election violence and concluded that “to prosecute four people for the sins of 40 million people is therefore preposterous”.

In the context of UDF/TNA rivalry in central Kenya, however, Mr Mudavadi has more recently changed his message on the ICC and at a public rally cautioned against electing ICC suspects. However, it is these same suspects that he has now joined forces with. Given the careful nature of his politics, it is difficult to understand why Mr Mudavadi chose to walk into a coalition that amounts to no more than a minefield for him.

The situation facing the Cord coalition in relation to the ICC is no less complex. For a long time, Prime Minister Raila Odinga was viewed as the main political voice for the ICC in Kenya. However, his failed attempt at an alliance with Mr Ruto, whom he knew to be facing ICC charges, is now viewed as a public repudiation of the ICC by the Prime Minister.

If he becomes president, he will be faced with the same problem of whether or not to hand over Mr Kenyatta and Mr Ruto, who may then be the country’s main opposition, to the ICC. However, in making such a decision, he will have a freer hand than Mr Mudavadi would have if he were to be the president himself.

Vice-President Kalonzo Musyoka has been the most consistent performer on the question of the ICC. Throughout the month of January 2011, he was involved in the ultimately unsuccessful shuttle diplomacy that sought to convince the UN Security Council to defer the Kenyan cases before the ICC.

Thereafter, Mr Musyoka joined the KKK Alliance, which later morphed into the G7, whose other leading members were Mr Ruto and Mr Kenyatta.

As a result, Mr Musyoka has always had a sympathetic view of the problems facing the two.

Mr Musyoka used the occasion of the launch of Cord to announce that if his coalition comes to power, it will bring the ICC cases home. It is conceivable that Cord will want to win the support of TNA/URP areas and will, therefore, seek to assure the supporters of Mr Kenyatta and Mr Ruto that if elected, its government will protect their interests.

The truth, however, is a little more complex and neither a Cord nor Jubilee government can easily shield the two from the ICC. Short of non-cooperation with the court, which will come with diplomatic and economic consequences, there is no clear mechanism for preventing a trip by Mr Kenyatta and Mr Ruto to The Hague on April 10, 2013 when their trials start.

As the task force appointed by the Attorney-General to advise the government on ICC cases concluded, the only way in which Kenya can bring these cases home is if the government establishes an investigation against the four accused persons and then charges them with exactly the same offences that they face at The Hague after which it can seek to convince the ICC to allow national trials to take place.

When they look back at the way in which they have engaged with the ICC, and if Mr Ruto and Mr Kenyatta were to be honest with themselves, they would accept that they have made monumental blunders by, for example, believing as Mr Ruto once did, that an ICC intervention in Kenya would not be possible in our lifetime and that in opposing the establishment of a local tribunal at the time, he was not exposing himself to the ICC.

They will also need to consider whether the people who mean well for them have always given them the best advice, or merely told them what they would rather hear.

Their current endeavour to lead Kenya, when they have such serious personal problems, constitutes hubris against which good advice should have prevailed.

Mr Kegoro is the executive director, ICJ Kenya chapter