What if Ocampo were to indict Uhuru?

By MAKAU MUTUA
Posted Saturday, October 16 2010 at 17:52

Deputy Prime Minister Uhuru Kenyatta says he is not afraid of arrest warrants by the International Criminal Court.

According to him, “once due process has taken place, the truth will come through and people will get to know what the situation was”. Legally speaking, this is a very curious – and dicey – statement.

It implies that Mr Kenyatta looks forward to his day in court should the ICC indict him. I cannot opine on Mr Kenyatta’s guilt or innocence, but I recognise the outline of an anticipated legal defence when I see one. Mr Kenyatta’s words may be prescient.

My crystal ball tells me that Luis Moreno-Ocampo, the Prosecutor of the ICC, could strike a dagger at the heart of Kenya’s political elite. You can sense panic everywhere. Allies of Higher Education minister William Ruto are already accusing the ODM Pentagon of planning the savage 2007 post-election mayhem.

Vice-President Kalonzo Musyoka and PNU MPs have accused Mr Moreno-Ocampo of targeting the Kikuyu. Leaders once known for their braggadocio are running scared. They know that Mr Moreno-Ocampo is tightening the noose around their necks.

They will betray and “rat each other out” to Mr Moreno-Ocampo. It’s going to be every man – and woman – for himself. There is no honour among thieves. Mr Kenyatta would not have broken his silence unless he sensed the gravity of the ICC investigations.

He is one of the most privileged Kenyans alive. The scion of Mzee Jomo Kenyatta, Uhuru is the closest thing to royalty in Kenya. That’s why in 2002 former President Daniel arap Moi chose him over more seasoned politicians as his heir apparent.

The Kikuyu elite is determined to pass President Mwai Kibaki’s mantle to him in 2012. Environment minister John Michuki has publicly anointed Mr Kenyatta Mr Kibaki’s heir among the Kikuyu. Mr Michuki threatened serious opposition against any Kikuyu who would refuse to follow Mr Kenyatta.

I thought Kenya’s only prince shouldn’t be a tribal chief. Mr Michuki’s words were calculated. His point was that the Kikuyu will line up behind Mr Kenyatta’s bid for the State House in 2012. In the alternative, Mr Kenyatta would be the kingmaker for the eventual winner in 2012.

Mr Michuki was telling Prime Minister Raila Odinga, Mr Musyoka, Mr Ruto, Gichugu MP Martha Karua, and Internal Security minister George Saitoti — the other plausible contenders — that the road to State House goes through Mr Kenyatta.

Michuki’s scheme

But he was also bluntly telling other Kikuyus — especially Ms Karua and Gatanga MP Peter Kenneth — to subjugate themselves to Mr Kenyatta. The new constitution has not changed the mentality of political dinosaurs. You cannot teach an old dog new tricks. I am afraid that Mr Moreno-Ocampo may complicate Mr Michuki’s scheme.

Mr Kenyatta was one of several ministers implicated in post-election violence by a report of the Kenya National Commission on Human Rights. The High Court denied a plea to have his name expunged from the report. The others named in the KNCHR report are Mr Ruto and Tourism minister Najib Balala.

Lawyers familiar with the ICC’s work believe that Mr Kenyatta, Mr Ruto, Mr Balala, and others named in the KNCHR and Waki reports will be interviewed by ICC investigators. Indictments and arrest warrants are most likely to be issued among people in this group. The arrest warrants could be sought before December.

Everyone knows that an arrest warrant against Mr Kenyatta would be a political earthquake. It would forever change the direction and culture of Kenya’s politics. Mr Kenyatta is the physical and emotional symbol of Kenya’s status quo.

Taking Mr Kenyatta out of the political cycle would be a tectonic shift. To be sure, even if the ICC were to indict Mr Kenyatta, it would be unlikely to indict him alone. But let’s be clear. An indictment is not a conviction. But it would be a political kiss of death.

Anyone indicted by the ICC would be a fugitive from justice. There is no way a person for whom the ICC has an arrest warrant would be a candidate for the State House in 2012. Mr Kenyatta would not inherit President Kibaki’s mantle among the Kikuyu if he were indicted.

This would throw the race wide open. Ms Karua and Mr Kenneth would be the biggest beneficiaries. But Mr Musyoka would suffer a setback because the KKK alliance would have lost one of its anchors. Similarly, an indictment of Mr Ruto would leave a vacuum among the Kalenjin.

Another KKK bigwig would have bitten the dust. I don’t think the PNU coalition that Mr Musyoka is counting on would survive these indictments. All bets would be off. Obviously, a lot of this speculation assumes many variables.

But only those who are as blind as bats cannot see an emerging script and silhouette. Mr Moreno-Ocampo has boxed in Kenya’s elite. His guillotine is about to fall. Whether those named in the KNCHR and Waki reports escape his noose remains to be seen.

But Mr Moreno-Ocampo has come too far to go away empty-handed. He will get his pound of flesh. Who it will be must remain an open question. But I know one thing. The likely indictees had better get their lawyers very busy. And these lawyers had better be the best and the brightest. Otherwise the future looks bleak.

Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the KHRC.