Sunday, January 22, 2012

This Changes Everything - For Ever


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Hague D-day is only the latest of many Kenyan dates with destiny over the past six decades

One of the most momentous decisions in Kenyan history is now only hours from reaching the public domain. This is the confirmation-of-charges decision in the matter of the crimes-against-humanity charges brought against six prominent Kenyans before Pretrial Chamber II of the International Criminal Court at The Hague. The decision will be delivered online no later than Monday January 23 and could even be broadcast any time now over this weekend. The accused are Presidential candidates Uhuru Kenyatta and William Ruto, Head of the Civil Service Francis Muthaura, Postmaster General Hussein Ali, former Cabinet Minister Henry Kosgey and broadcaster Joshua Sang.
ICC Chief Prosecutor Luis Moreno-Ocampo targeted the Six as “bearing the greatest responsibility” for the atrocities committed in the post-election violence (PEV) in Kenya following the disputed Presidential election results in 2007-08. Some 1,300 Kenyans died, more than 3,000 were raped and 650,000 displaced.
Wheel of history turns
The date of the ICC decision has every probability of being one of those rare junctions during which the perception that we are actually witnessing the wheel of history turn can be palpable, even overwhelming. Whatever the Chamber’s three-judge Bench decides, Kenyan politics will never be the same again. There have been such dates before – for instance April 8, 1953, when the verdict came in on the trial of another political half-dozen, the Kapenguria Six, led by Mzee Jomo Kenyatta. He was jailed for seven years with hard labour for “managing Mau Mau, a terrorist organization”.
And then there was April 14, 1959, when Kenyatta was moved from Lokitaung to Lodwar, reportedly for “permanent restriction”. There had been a State of Emergency and Kenyans had had no idea where Jomo had been for six long years. The Emergency lasted four of those six long years. The minute Kenyatta’s whereabouts were made public for the first time since 1953, nationalist leader Jaramogi Oginga Odinga did what no one else had dared do; he openly called for his unconditional release and the fast-tracking of the Independence process. This bold action led straightaway to a tipping point in the Independence struggle and calls for Jomo’s release were subsequently unstoppable, until it actually happened on August 14, 1961, another one of those this-changes-everything dates.
Thereafter, Kenya’s next big rendezvous-with-history dates were June 1, 1963, when Kenyatta became Prime Minister, December 12, 1963, when Kenya attained Independence and December 12, 1964 when Kenya attained Republic status and Kenyatta became President. The day the ICC returns its verdict on the Ocampo Six ranks right up there with these landmarks dates on which modern Kenya was founded. It coincides with the lead-up to Kenya’s biggest and most significant General Election yet, the first poll under the new Constitution, which will usher in a much expanded Executive and Legislature (including reviving the Senate) and re-introduce devolved government.
Political high drama
The cast of characters in the Presidential contest of the 11th General Election includes Jomo’s son and the Jaramogi’s son too – the sons of, respectively, Kenya’s founding President and founding Vice President. Prime Minister Raila Amolo Odinga and Deputy Prime Minister and Finance Minister Uhuru Muigai Kenyatta have both declared themselves as being all-set to succeed President Mwai Kibaki, a protégé of both their fathers, and become the Fourth President of Kenya.
Raila remains the frontrunner in the Kibaki succession race, with Uhuru coming up a, so far, non-threatening second and Ruto so far behind them that he barely registers. Both Raila and Uhuru have run for President before, scoring respectively 5 million and 2 million votes to the nearest round number. This is Ruto’s maiden run.
There is high political drama indeed here, with The Hague factor being one of its most sweeping backcloths. The other major context is the Kenyatta-Odinga rivalry, which has rocked Kenyan politics on-and-off for decades. Add to this the Ruto factor and the Luo-Kalenjin fallout inside the Orange Democratic Movement (ODM), which was essentially a Raila-Ruto falling out, and the mix becomes electric. Ruto, until recently comparatively a no-name player when considered alongside the Kenyatta and Odinga political brand names and dynast dynamics, is a self-made operative who is fond of referring to himself as a “hustler”. A week ahead of the decision from The Hague, Ruto acquired a political party, the United Republican Party (URP) with the slogan Kusema na Kutenda (Walk the Talk).
What happens next?
Three questions are currently greatly exercising Kenyans’ minds as they await the ICC ruling: Will Uhuru and Ruto still be serviceable Presidential candidates if the Chamber confirms the terrible charges against them? And if they, like the former Rwandese official and UN executive Callixte Mbarushimana, who saw the ICC case against him thrown out by Pretrial Chamber I, are also absolved of all charges, are they capable of joining hands and carrying their massive vote blocs with them? And in the unlikely event that they do join hands and their communities do follow suit, how will their unity be configured – who will play President and who will defer to the other as Deputy President and why and with what result?
Uhuru’s and Ruto’s detractors – and not only they – are adamant that confirmation of crimes-against-humanity charges by the ICC would fatally flaw their Presidential ambitions under the new constitutional order and climate and public mood of change and accountability. They invoke the new Constitution’s Article 10, which enshrines National Values, and Section 6, on Integrity. But Uhuru and Ruto’s supporters invoke the new qualifications and disqualifications, under the same Constitution, of people running for President, which specify disqualification as applying only to persons who are convicted of a crime and sentenced to more than six months, having exhausted all appeal mechanisms. The larger point the Uhuru-Ruto loyalists are making is that whether the ICC charges are confirmed or not, there is no conviction in sight for either man.
Another school of thought points out that the Constitution empowers the Senate to impeach an errant President of Kenya. Among the crises that would overtake Kenya if the ICC cases go forward and either Uhuru or Ruto becomes President would be the Senate moving to impeach a President Uhuru and Deputy President Ruto, or President Ruto and Deputy President Uhuru convicted by the ICC at the end of the confirmed cases sometime over the next five years.
Prospect of ‘auctioneered’ President
So, why would the Kenyan electorate want to chance such a prospect? The 11th General Election’s Voter’s Register will undoubtedly be the biggest one yet, about 17 million Kenyans, all of them adults of presumably sound mind, discretion and exercising both free well and commonsense. As they exercise their right to secret ballot voting they, and no one else, will decide: why would they vote into the highest and most dignified offices in the land persons who could well be “auctioneered” in the worst ways possible?
They say the law is an ass. Sometimes it can be the most obtuse donkey. For all our much-vaunted constitution-making skills across 20 years of reform, Kenyans ended up only ensuring that the only constitutional provision that holds an incumbent Kenyan leader must step aside is the Economic Crimes Act, not any other crime or infraction, not even homicide. Thus Ruto, if convicted by the ICC, has the doubly dubious distinction of having been made to lose his place in the Cabinet through the inhibitions of the Economic Crimes Act (when he had a criminal case in court to answer, and won) but would face no legal impediment in his quest for State House even if he were held liable by the UN court for crimes that would befit a Nazi war criminal.
If, instead, they are indeed cleared of all charges, what would Uhuru and Ruto, who have made no secret of their suspicions that the PM somehow, somewhere had a hand in their ICC predicament, do next? Can they craft the very first Kikuyu-Kalenjin electoral pact, and what would it result in? The eruption of pure joy, vindication and triumph that would seize both the DPM’s and the former Cabinet minister’s supporters in the event of a dropping of all charges by the ICC would be a wonder to behold. Not even Kenneth Stanley Njindo’s mammoth homecoming from Britain in 1992 or Mwai Kibaki and Michael Wamalwa Kijana’s, also from hospitalization in the UK, in 2002, would come anywhere near a joint Uhuru-Ruto escape from the jaws of The Hague.
But then the really hard part would begin, harder by far than the prospect of political martyrdom that confirmation of charges would confer on the two in the eyes of their massive vote blocs: Engineering a Kikuyu-Kalenjin pact that would not backfire, given the response of the rest of the country, where the mood is at a high point to the effect that it is high time the Mountain and the Valley took a break from State House, having been in residence there for five long decades.

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