Sunday, March 4, 2012

ICC: Bitter truth for Uhuru, Ruto


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FILE | NATION  Vice-President Kalonzo Musyoka (left) with Prime Minister Raila Odinga at a past public function. The ICC proceedings against Uhuru Kenyatta and William Ruto will play a central role in the next General Election, in which the two will also be running.
FILE | NATION Vice-President Kalonzo Musyoka (left) with Prime Minister Raila Odinga at a past public function. The ICC proceedings against Uhuru Kenyatta and William Ruto will play a central role in the next General Election, in which the two will also be running. 
By EMEKA-MAYAKA GEKARA gmayaka@ke.nationmedia.com
Posted  Saturday, March 3  2012 at  22:30
IN SUMMARY
  • The ICC case will have far-reaching consequences for the duo and other aspirants
Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto may find it logistically impossible to campaign for the presidency in the coming elections.

This is because of last week’s decision by the International Criminal Court (ICC) clearing the way for their trial for crimes against humanity charges. (READ: ICC Four may be tried pending appeal ruling)
And, with every indication that the ICC proceedings will play a central role in the General Election, the suspects’ exclusion would have far-reaching consequences on other presidential hopefuls, particularly Prime Minister Raila Odinga, his deputy Musalia Mudavadi and Vice-President Kalonzo Musyoka.
A newly-published policy brief by the International Crisis Group on the impact of the ICC proceedings in Kenya presents likely scenarios, concluding that the matter would be a poisoned chalice, especially for Mr Odinga, because of the expected backlash.
But, according to the respected think-tank that monitors conflicts worldwide, Mr Musyoka, who has teamed up with the two suspects in the G7 alliance, might benefit from the endorsement of the suspects who command huge support from their Kikuyu and Kalenjin voting blocs.
However, the group warns that the primary motive of the G7 and its leaders is to frustrate the ICC case. The strategy is to use the group as a vehicle to ascend to powerful offices – including the presidency – which will then be used to stop the case.
“The G7 is a powerful alliance with important implications for 2012, when all presidential candidates will try to build ethnic alliances,” says the ICG. “It considers that if it wins the elections and controls the government, it will at a minimum be able to delay the ICC process.”
Last Thursday, the ICC appeals chamber declined a request by Mr Kenyatta and Mr Ruto to suspend their trials until a decision is made on their application seeking to persuade the court that the case should not be handled at The Hague. But the judges said the two processes were independent, effectively the paving way for trials.
Justice minister Mutula Kilonzo and Mr Ken Ogeto, who represents Mr Kenyatta’s co-accused, Mr Francis Muthaura, agree that the decision means the trials will start any time this year.
“The decision technically moves the conversation to the next stage. Nothing stands in the way of the ICC presidency to constitute a trial chamber,” said Mr Ogeto.
He however noted that the decision should not be interpreted as a reflection of the court’s thinking on the jurisdiction case that has been filed by the suspects.
“The judges are saying ... forget about the appeal and concentrate on trials. The judges indicated that they are unlikely to make a decision that would adversely affect the proceedings,” pointed Mr Kilonzo. And there lies the nightmare for the two presidential hopefuls, whose political fate is intricately tied to the outcome of the ICC.
It is expected that, once constituted, the trial chamber will take four or five months to address procedural issues. With this, the trials will coincide with the campaigns for the elections expected later in the year.
The major headache is that the ICC rules require them to be present in court at a time when they should be on the campaign trail.
Besides, the ICC retains the discretion to allow them to attend the proceedings as free men or issue arrest warrants depending on their conduct.
On Saturday, Mr Kilonzo described the prospect of the two running as “illogical and impossible” because they would be required in court.

“It is a no-brainer. You cannot be tried in absentia. Did Jean-Pierre Bemba contest the presidency in the Democratic Republic of Congo?” he asked.
“Even if you love them, it will be illogical and extremely dangerous for the country and for them to attempt to run for the presidency,” the minister added.
Mr Bemba, a former DRC vice-president, is detained at the ICC where he is facing war crimes charges. Though he continues to wield sufficient influence at home, he could not run for the presidency in last year’s election before his confinement.
Mr Kenyatta and Mr Ruto have indicated that, regardless of the January 23 order by the pre-trial judges committing them to trial, they will contest the elections because the Constitution does not expressly forbid an individual facing legal proceedings from vying.
Despite their predicament, allies of Mr Kenyatta and Mr Ruto have suppressed talk of the search for an alternative candidate and presented the duo as heroes and victims of an engineered prosecution meant to lock them out of the Kibaki succession race.
While the power elite around President Kibaki favours Mr Kenyatta, the scion of founding President Jomo Kenyatta, to succeed him, Mr Ruto is emboldened by the support he enjoys from his populous Kalenjin community.
The next election is shaping up as a referendum on the ICC process.
If they succeed in contesting the presidency while the ICC matter is ongoing, the group thinks that the duo will run on the same ticket, one of them as the presidential candidate and the other as running mate. The primary losers will be Mr Odinga and Vice-President Musyoka.
The ICG returned a number of possible scenarios – the two suspects are locked out or the ICC drops the cases against them.
“A Kalenjin-Kikuyu ethnic voting bloc would be very large,” says ICG. “With Kibaki retiring, Odinga is the candidate to beat, but he could be the first casualty of such a ticket, since his previous Kalenjin support would be weakened.”
“Odinga has been painted as the person behind Ruto’s woes, although Kalenjins supported him in the last election, and most of the evidence against him was provided in the National Security Intelligence submission to the Waki Commission,” says the brief.
But the Kenyatta-Ruto ticket will face at the least three main challenges. According to the ICG, it could be branded an “Axis of Impunity” by opponents, who could argue that all that binds them together are anti-reform, pro-impunity credentials.
Secondly, it is not yet clear if the alliances between Mr Ruto and Mr Kenyatta and by extension the Kalenjin and the Kikuyu, who took machetes against one another, will endure since the underlying issues that triggered the 2007/8 violence, such as land have not been solved.
There is also the little matter of the voting pattern of Mr Kenyatta’s Kikuyu community and the Kibaki incumbency. There is a growing sentiment that Central Province has its fair share of presidents.
“This could make it hard for Ruto to back Kenyatta. Also part of Mr Ruto’s dilemma is that Central Kenya people generally do not support a presidential candidate from another community.”

The group reckons that Mr Musyoka will be casualty of the Kenyatta-Ruto ticket because he has been in talks with both about fielding a joint presidential candidate.
But what if the suspects are barred from running?
Internal Security minister George Saitoti is brought into the picture.
“Should he (Kenyatta) be told by the Kenyan courts or his supporters that he cannot run because the ICC has confirmed the charges against him, Prof Saitoti is waiting in the wings as a backup PNU candidate.”
Alternatively, communities might decide that in the absence of “their” man, their interests will be protected by the chosen candidate.
“If they vote for the candidate that the detained individual asks them to support, Mr Musyoka would probably be the beneficiary,” says the ICG.
Recent inquiries by the Sunday Nation have revealed that Mr Ruto and Kenyatta’s supporters especially in Rift Valley and Central Kenya consider Mr Mudavadi a “safer candidate”. It is notable that Mr Mudavadi, who is in battle with Mr Odinga for the ODM presidential ticket, was Mr Kenyatta’s running mate in the 2002 elections. Mr Ruto was their chief campaigner.
“Since their alliance was one of opportunism, based on opposition to the ICC, the decision could break their unity,” said the ICG.
The other scenario is if the suspects win their argument at the pre-trial chamber. No doubt, they will be politically strengthened and their careers redeemed. But the glue that binds them together would be no more.
With President Kibaki not running, Mr Kenyatta would be the bona fide Kikuyu leader. Feeling vindicated, the former suspects would repeat on the campaign trail their claims of having been targeted by their political enemies, especially Mr Odinga.
As for Mr Odinga, if the Kenyatta-Ruto axis is broken, the field would become crowded, forcing him to craft a coalition.
What’s more, the think-tank reckons, that Mr Ruto would pose a much greater threat to Mr Odinga, because Kikuyus customarily do not vote for a candidate of another ethnicity and, certainly, not a Luo.
“Another factor would be that there is a general sense that electing a third Kikuyu president would be a hard-sell in other regions.”
Though the decision to drop the charges might demonstrate the ICC’s impartiality and independence, it would be viewed as a setback for efforts to combat impunity and deter political violence in Kenya.

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