ICC’s Long Shadow Over Impending Elections

Two months to Kenya’s next elections in March 2013, foreign diplomats, alarmed that two International Criminal Court “indictees”, Uhuru Kenyatta and William Ruto, might become president and vice-president, have started talking down the pair’s chances. But voters are not listening as the pair’s popularity is on the rise. 

Boosted by Kenya’s thriving economy, its enhanced regional status, and the perks that come with it, the Kenyan presidency has become a magnet. While the country’s new constitution, promulgated in August 2010, appears to have whittled down the massive powers that the office had in the past, it has only elevated the prestige of the presidency.

As President Mwai Kibaki’s retirement date nears, the increased clamour for this post reveals a great deal. Apart from Kenyan politicians campaigning to succeed Kibaki, the international community is also overtly involved in determining who will be Kenya’s fourth president.

Two months before the eagerly awaited polls in March 2013 that will elect the new president, one major issue that has strongly emerged, and which will have a big impact on the elections, is that of the International Criminal Court (ICC).

While the fear of the ICC has forced politicians to tone down on political incitement, a curse in previous Kenyan election campaigns, the Netherlands-based court has become propaganda fodder for Kenyan politicians.

The ICC’s involvement in Kenyan politics came about as a result of the botched 2007 Kenyan general elections that degenerated into violence which claimed 1,333 lives, displaced over 500,000 people, and led to massive destruction of property.

When former deputy premier and finance minister Uhuru Kenyatta, agriculture minister William Ruto, and two others appeared before a pre-trial session of the ICC in 2011, and were confirmed to stand trial, it was as if their political epitaphs had been written.

Yet, today both Kenyatta and Ruto have managed to not only make the ICC an election campaign tool, but they have also swayed the majority of the public to their side.

The two men have turned the ICC into a blessing and reinvented their political careers. They have used every available opportunity to score political points and effectively turn their ICC-debacle into a sympathy-seeking platform.

Previously, both Ruto and Kenyatta’s support bases were seen as shaky even in their own backyards of the Rift Valley and Central Kenya provinces respectively. But today both Kenyatta and Ruto are totally different persons.

In January 2012, Ruto defied Prime Minister Raila Odinga, who was his party’s boss at the Orange Democratic Movement (ODM), and walked away to set up his own party, the United Republican Party (URP). According to Ruto, one of the two main reasons that made him leave the ODM was the ICC charge which he viewed to have been instigated by Odinga.

Not long afterwards, in May 2012, Uhuru Kenyatta, son of Kenya’s founding father Jomo Kenyatta, abandoned the Kenya African National Union (KANU) to launch his own party, The National Alliance (TNA).

By this act, the young Kenyatta was also cutting himself loose from the appendages of former President Daniel Moi and leaving the political nest of President Mwai Kibaki’s Party of National Unity (PNU). Four months after the launch, the TNA clinched two of three parliamentary by-election seats.

Kenyatta and Ruto have made these moves ignoring the spectre of the ICC trials, and also as a form of reinventing themselves and showing that they were independent and owed no allegiances to the past.

However, though they have been engaged in redefining their own political brands, they have since formed a TNA-URP coalition. This is because it is now a given that Kenya will have a coalition government after the March elections, as no single party can win the polls on its own.

Amazingly, “the ICC effect” which was initially thought to benefit Prime Minister Odinga is now turning out to be his worst nightmare, as Kenyatta and Ruto have succeeded in making the ICC an election issue at the expense of Odinga.

The confirmation of Ruto for trial by the ICC has significantly eroded Odinga’s support in the Rift Valley province. In the 2007 polls, Ruto single-handedly marshalled Odinga’s largest voting bloc from the Rift Valley.

Now, the parting of the ways between Odinga and Ruto has worked against the colourful prime minister. Ruto’s liaison with the URP and dalliance with the TNA has whittled down Odinga’s appeal in the Rift Valley.

Worried by the surging popularity of Kenyatta and Ruto, foreign diplomats accredited to Kenya have waded in on the ICC issue. The possibility that the URP-TNA coalition could win the March polls has irked the diplomats who have warned Kenyans against electing “suspects”, as it would compromise the country’s international standing.

“Though the suspects are innocent until proven guilty, Kenya could face difficulties if one of them was elected and later found guilty of crimes committed during the trial,” the German minister for economic co-operation and development, Dirk Niebel, said while visiting Kenya last August. His comments echoed those of the British high commissioner to Kenya, Christian Turner, who had earlier said: “The electoral matter is a Kenyan affair. But neither myself nor other government ministers talk to or engage with indictees.”

The former UN secretary general, Kofi Annan, and the US secretary of state, Hillary Clinton, have also expressed similar sentiments.

As expected, the diplomats’ views have not gone down well with both Kenyatta and Ruto, and also Kenya’s political establishment who all interpret them as “foreign interference” in Kenya’s affairs, and an application of double standards.

Leading the charge has been Attorney-General Githu Muigai, who criticised the USA for insinuating that Kenya was not committed to the ICC, yet the USA itself has refused to sign the ICC’s Rome Statute that established the Court.

Said Muigai: “Kenya is among the founding members of the Rome Statute and among the first in the world to domesticate the Statute, yet non-members continue to speak loudest on its matters.”

The chairman of the influential Constitutional Implementation Committee (CIC), Charles Nyachae, has also criticised Hillary Clinton’s position. “[Her] position that Uhuru Kenyatta and William Ruto should not run for the presidency is unnecessary and unhelpful,” Nyachae insists. Kenyatta, who has in the recent past teamed up with URP leaders to visit the capitals of South Sudan, Tanzania and Burundi, meeting the presidents of those countries, has also criticised the Western diplomats.

“My focus is on Kenya, the region, and the continent,” Kenyatta said. “No Kenyan or African has said Uhuru should not vie for the presidency, so the rest can stay away if they don’t want to associate with us.”

Kenyatta dismissively called the diplomats “tourists” interfering in Kenya’s politics. “We welcome them to continue visiting Kenya because tourists help our economy to grow, but I am not looking to be president in the UK or US,” Kenyatta said. “I am democratically seeking the presidency of Kenya. I am not forcing anyone to vote for me.”

Equally stung by the stance taken by the foreign diplomats, Ruto has openly stated that he and Kenyatta were “framed”. According to him: “The US secretary of state has told the government that Mr. Kenyatta and I are not supposed to run. She has also hinted that America will impose sanctions on us if we participate in the polls and win. This is dictatorship.

“When she visited Chief Justice Willy Mutunga at the Supreme Court and commented on the ICC cases involving us, she was clearly interfering. We did not finance any chaos or beat anybody in the 2007 polls. We were framed by those who felt we were a force to be reckoned with,” Ruto argued.

Aware that his support in the Rift Valley was firmly in the hands of Ruto, Odinga has on several occasions denied that he framed and betrayed Ruto to the ICC. And just to prove how serious the ICC matter has become in the Kibaki succession campaign, Odinga has made several visits to the Rift Valley province seeking to make amends and clarify the ICC perceptions.

In late October, Odinga took an uncharacteristic path when he publicly acknowledged his political blunders and asked to be forgiven by members of the Kalenjin community, the Rift Valley’s majority ethnic group.

“To err is human, and if I have offended anyone in the course of my duties as prime minister, I ask for forgiveness. Let us look forward and continue to work together as before,” Odinga pleaded when he met Kalenjin elders in Nakuru County and sought to clarify his position on the ICC.

“Even if I had the powers,” Odinga continued, “would I have taken Ruto and Henry Kosgey [minister of industry who was later found innocent by the ICC] to The Hague when they were my foot soldiers?”

Apparently after realising that his “charm politics” were not having an effect on the Kalenjin, Odinga changed his tune and went on the offensive. A month after his abortive plea to the Kalenjin elders, Odinga returned to the Rift Valley and said that Ruto and Kenyatta could not sidestep their ICC cases even if Kenyans elected them president and deputy president.

Odinga cited the restricted travelling fate currently facing Sudan’s President Omar El Bashir due to an arrest warrant issued by the ICC. “The only way out for them is to face the ICC issue with truth,” Odinga said. “We tried to bring the cases to be heard at home but they insisted on the trials at The Hague.”

Odinga thus pleaded to be elected president so that he could withdraw the cases from The Hague to be tried at home in the Kenyan courts.

The truth is that the political scenario in the country today has changed from what it was between 2007 and 2010 when Odinga’s ODM enjoyed massive countrywide support. The prime minster’s steady decline in the opinion polls is not his only headache. His troubles have been compounded further by defections from his party and acrimonious fallouts with his aides. This has led to the ODM’s key vote hunters leaving Odinga to set up their own parties.

Meanwhile, in early December, Kenyatta and Ruto formally announced that they would be on the same ticket for the presidential elections. It may still be too early to predict who will be Kenya’s next president, but the ICC is playing an active role in the country’s elections.