How President outflanked the Cabinet

 

By KWENDO OPANGAPosted Saturday, January 29 2011 at 17:16

In Summary

• Without consulting Raila or the Cabinet, President sent Vice-President to rally support of select African countries

Last week’s spat between Prime Minister Raila Odinga and Vice-President Kalonzo Musyoka over the sextet fingered by the International Criminal Court (ICC) as masterminds of the 2007 election violence, revealed how President Kibaki out-manoeuvres the Cabinet to get things done his way.

Ministers of government, a coalition of the coerced or forced marriage, rarely see eye to eye on most issues. The President, one who sees more than he lets on at meetings, may have resorted to out-flanking a quarrelsome Cabinet to push through his ICC agenda.

Musyoka is clear: The President sent him to African capitals to solicit support for Kenya’s decision to seek deferral of the cases pending against the six who could be tried by the ICC at The Hague ahead of the African Union (AU) meeting in Addis Ababa.

Raila is categorical: Musyoka’s so-called shuttle diplomacy was not sanctioned by the Cabinet. And, when the Cabinet did discuss the matter of the sextet suspected of masterminding the madness, mayhem and murders of late 2007 and early 2008, it was referral it sought and not deferral.

The point is made: The President decided, without involving or consulting the Prime Minister and the Cabinet, that he would seek the support of heavyweight African countries in Nairobi’s bid to pressure the UN Security Council into deferring the Kenyan cases at the ICC.

Again, without consulting Raila or the Cabinet, he decided to dispatch the Vice-President, his principal assistant, to selected African capitals to get their backing. As Musyoka explained, he could not question the President’s decision to seek deferral or outflank Raila and Cabinet or to send him out as his envoy.

Enter Justice Minister Mutula Kilonzo: He says Kenya cannot ask for the deferral of a case which has not even started. And, he explains, by asking for deferral the impression is created that international crimes were indeed committed in Kenya or that the six should be indicted!

Hear him: “We have created a national panic over a situation that does not exist. Or are they saying the Ocampo Six should now be indicted?”

What Mutula is saying is that President and V-P have put the cart before the horse. In other words, had President and V-P asked him, his counsel would have been different.

Should there be disagreement over referral and deferral? In lay terms referral is about transfer and deferral about delay. So if the Cabinet discussed the transfer of the case of the sextet then, again, the President could have changed his mind and settled for asking for a delay (deferral) in prosecution rather than change (transfer) of venue.

But that doesn’t quite come together. The way things stand, and as Raila told Parliament on December 16, Kenya has four options in dealing with the suspects.

One is to establish a credible local process for investigations and prosecution of the six and invite the ICC to review it and, if convinced, allow the local process to take over the cases.

This sounds like transfer and like what Parliament desperately wants.

The second option is for Kenya to seek a resolution of the UN Security Council deferring prosecution for six to 12 months. I believe this period can be used to establish the credible process mentioned above.

Three is to withdraw from the ICC. Withdrawal would be effected a year after receipt of the notification of the withdrawal. Withdrawal, however, would not affect co-operation with ICC in criminal investigations and proceedings in relation to which Kenya has a duty to co-operate.

Four is to let the process which the ICC has set in motion run its course. When asked by Garsen MP Danson Mungatana to tell Parliament which of the four options government had settled for, Raila explained that Cabinet opted for a local judicial process.

The problem then would appear to be how to go about transferring the cases from The Hague to Nairobi.

The President may have opted for drumming up support among African leaders before making his case to the UN Security Council. Raila, however, holds that Kenya should deal directly with ICC, a position favoured by Mutula and who would feel that explaining The Hague process is his docket.

Now, lastly since the indictment of Sudan President Omar al-Bashir in 2009, AU has been hostile to ICC. Thirty-three of the 114 ICC-member states are African.

If they collectively withdrew or cast aspersions on it, ICC’s credibility would be greatly undermined. Might subverting ICC be the reason for Musyoka’s shuttle diplomacy? I am suspicious.

The writer is a media consultant diplospeak@yahoo.com