The reality of the start of the trials at The Hague towards the end of the year is clearly beginning to weigh heavily on the Kenyan presidency as the opposition appears to be gearing up to exploit the opportunity of taking adversarial politics to the next level.
Are President Uhuru Kenyatta and Deputy President William Ruto really prepared for the full implications of the start of their cases at the International Criminal Court (ICC) at The Hague scheduled for September and November this year?
And is the national security state edifice that they now head, command and control looking ahead far enough and weighing and considering these implications – foreseeable, possible, probable and unforeseeable?
By the same token, are Kenyans, both those who voted for the Jubilee Coalition pair and those who did not, but for all of whom the President and his Deputy are now the rulers of Kenya, prepared for what lies ahead?
While both men, well-coached by international teams of lawyers, PR and political handlers, are given to pointing out patiently that they are being prosecuted in their individual, not official, capacities, they could well find that, when you are occupants of the presidency, there is a very thin line indeed between personal and official.
Uhuru and Ruto were crimes-against-humanity indictees of the ICC long before their newfound official capacities, having been named and charged far ahead of the presidential polls on which they rode to power.
They have already made history by being the first such indictees to stand for presidential office, get themselves elected, and enter office.
MAKING BLOCK-BUSTER HISTORY: A PRESIDENT IN THE DOCK
Now one of them is about to make even more blockbuster history: President Uhuru , by becoming the first sitting Head of State, Government and Commander-in-Chief to stand trial on crimes-against-humanity charges outside the national territory where he is the sovereign.
Uhuru and Ruto have finally arrived in one of history’s most acutely awkward corners. And the facts of their extraordinary predicament are as stark and apparently implacable as the facts of life.
For one thing, the closer they get to the start of their trials at The Hague, the more acutely aware they will become of the fact that none of their predecessors would have submitted themselves to anything like the coming ordeal. Not Jomo Kenyatta, not Daniel arap Moi and not Mwai Kibaki.
In fact, Kibaki was such a nifty operative that he was able to neatly sidestep the prospect of being caught in the net of the 2007-2008 post-election violence postmortem conducted by Kofi Annan, the mediator of the Kenyan crisis, and a series of commissions of enquiry.
And so did Raila Odinga, becoming not only Prime Minister and co-principal of the Grand Coalition government produced by the mediation, but also co-deliverer of the new constitution.
And yet both men had been the main contenders for the presidency that year and Raila the sole disputant of the result announced by the now-defunct Electoral Commission of Kenya. Indeed, the violence first broke out to chants of “No Raila, No Peace!”
Perhaps even worse, from where UhuRuto now stand, a narrative will begin, and gather momentum, to the effect that Raila, too, would not, having attained State House, submit himself to any other jurisdiction, under any circumstances, until he was no longer President.
North Sudan’s President Omar el-Bashir is not only indicted by the ICC, the Court actually has an international arrest warrant out for him, but he wraps himself tightly in the sovereignty of presidential incumbency and actively scoffs at The Hague.
One of the greatest hypocrisies of the international arena is the fact that no other head of State and government or his deputy would so readily submit themselves to the ICC as the Kenyan pair are doing.
But then they were indicted before they occupied the p residency. In the case of the USA, the ICC is out of the question, whether a president is in or out of office, and has even been damned as an alien jurisdiction by Congress.
Nonetheless, the Americans strongly recommend The Hague for what are clearly, to all intents and purposes, lesser mortals. This is a latter-day trope of Separate Development if ever there was one.
President Uhuru is in a far tighter corner and a much more awkward one than Deputy President Ruto. For instance, his insistence that the ICC case does not impinge on his position as President has serious protocol implications.
As he will soon discover, if he in fact is not already aware of the fact, the presidency is not divisible in this manner, nor is it to be compartmentalised. Indeed, a US presidential scholar observed in 1998 when it looked as if then President Bill Clinton might be impeached in the Monica Lewinsky affair, “the presidency is constitutionally unique – in the president, the entirety of the power of a branch of government is vested”.
The scholar went on: “The president is elected by the entire nation and should be judged by the entire nation”. No president is actually elected by the entire nation, only a majority of registered voters. However, he or she represents the entire nation for the duration in office.
As Commander-in-Chief, President Uhuru has the most potent instruments of the nation under his control. And that power is magnified many times in times of war or any other national emergency.
Watching him climb into the dock at The Hague, Kenyans, whether friend, foe or neutral, will not see, as they did before, Private Citizen Muigai Kenyatta, but their own President and C-in-C.
It was not for nothing that every President before this one in this country has emphasized that he is the symbol of our national unity and sovereignty, even when the country was, sometimes, falling apart.
What is sovereignty? If he turns up in the dock at The Hague in November, President Kenyatta II will be taking all the majesty, all the excellence, of Kenyan sovereignty with him.
In this regard, The Stanford Encyclopedia of Philosophy has a most interesting definition of aspects of sovereignty: “First, a holder of sovereignty possesses authority. That is to say, the person or entity does not merely wield coercive power, defined as A’s ability to cause B to do what he would otherwise not do. Authority is rather what philosopher R.P. Wolff proposed: ‘the right to command and correlatively the right to be obeyed’. What is most important here is the term ‘right’, connoting legitimacy. A holder of sovereignty derives authority from some mutually acknowledged source of legitimacy — natural law, a divine mandate, hereditary law, a constitution, even international law. In the contemporary era, somebody of law is ubiquitously the source of sovereignty”.
DRAGGING INDICTMENT INTO OFFICE
If he ever stands in the dock at The Hague while President, Uhuru will be the only individual in the room with these capacities. What’s more, he holds the Prerogative of Mercy within Kenyan borders, a power that not even the ICC Bench before which he would appear has.
Many of the President and Deputy President’s supporters back home and in the diaspora will not be able to wrap their minds around the spectacle of these two in the dock of what is to all intents and purposes “Mzungu jurisdiction”.
On the other side of the political divide, one upshot of all this could well be that accusations of dragging the apex national offices in the land in the mud of a pre-existing indictment, of diluting, diminishing and degrading the Presidency, will no doubt hound both Ruto and Uhuru into the dock at The Hague.
And this would be spearheaded by a gleeful Coalition for Reforms and Democracy (Cord) and its associates, both at home and in the Diaspora.
Already, there are indications of this. The spectacle in recent weeks of one Eliud Owalo, a senior aide of Raila, being serially grilled on a nebulous national security matter within the first 100 days of the presidential administration of Uhuru, strikes some older folk, on both sides of the political divide, with a sinking feeling of déjà vu and peels away the decades in a rather disconcerting manner.
And when Raila told a prime-time TV talk-show host on Sunday night that the CID grilling of Owalo was nothing but a preliminary to the declaration of a State of Emergency by the end of August, a jump ahead of the start of Ruto’s trial, the political, diplomatic and media arenas sat up and paid attention, all antennae bristling.
When Uhuru and Ruto first appeared at The Hague in 2011, in the ICC’s Pre-trial chamber, they were virtually civilians and very much in their personal capacity.
Uhuru’s titanic clash with the then ICC Chief Prosecutor, Luis Moreno-Ocampo of Argentina, was a heart-stopping moment in Kenya, on all sides of the political divide. It was broadcast live on radio and TV.
The listenership and viewership ratings were way beyond even a World Cup final or Olympics athletics finals. Even capital city Nairobi’s infamous evening rush-hour traffic jams did not take place on that day.
Imagine then a scenario in which President Uhuru appears in the dock at The Hague to face Moreno-Ocampo’s much more clinical and articulate successor, Fatou Bensouda of the Gambia, who seems to reserve a particularly cold-blooded animus for the man.
The symbolic significance of such a confrontation would be a thousand-fold much more compelling than the proceedings a couple of years ago in the Pretrial Chamber. And the global live TV audience would be much bigger than just a transfixed Kenya.
PROTOCOL AND SECURITY NIGHTMARES
The security protocol arrangements would be complex indeed. The Hague would have to be secured to much more than routine visiting presidential security levels.
Here would be the Commander-in-Chief of Armed Forces actually engaged in a hot war on one of the most perilous frontlines of the War on Terror, inside Somalia itself.
This tormentor-in-chief of the al-Shabaab, an affiliate of global terror masterminds al-Qaeda, ensconced for hours on end in soft-target premises in one of the most liberal, and therefore most lax, security-wise, cities in the world, could well be exposing himself to unacceptable threat levels and risk.
Having gone to all this trouble, President Uhuru could then run bang into the wall of some of the laws of unexpected consequences.
In order to rescue his foreign policy credentials and maintain cordial international relations before the start of his case, his government, through Attorney General Githu Muigai, constantly assured both the ICC and the international community that it would cooperate fully with the court.
The President himself has made it crystal clear that, in cooperating with the ICC, he is out to clear his name for himself and future generations of Kenyattas.
But, having fully cooperated as the pre-trial indictee and even participated in the start of the proceedings, the President could well discover that many more regional and world leaders no longer wish to be seen rubbing shoulders with him.
The international community could begin a wait-and-see attitude that puts much of Kenya’s diplomacy in abeyance for years to come.
What’s more, the President and Deputy President’s cases are not going to be heard in camera, they will be heard in open court, complete with worldwide multimedia coverage of witness allegations of the most egregious wrongdoing.
There will be many a day when both statesmen and their handlers will not want to look at a newspaper, whether Kenyan, Dutch, or other, or watch the prime-time TV news anywhere in the world.
ONCE AGAIN, THE ODINGA FACTOR
And, judging by the CID investigation of Owalo, while they are away being prosecuted on some of the gravest crimes any court can try, President Kenyatta and Deputy President Ruto and their handlers are gravely worried that Raila and Cord will take the opportunity to detonate street protests in more than one town in Kenya that could well spiral out of control. There is even talk of massive foreign funding and other support.
Raila, Owalo and Cord deny this, but then they would, wouldn’t they? The Raila factor is two-fold: first, he has indeed been at the centre of previous massively disruptive disturbances in Kenya before, from the abortive coup of August 1, 1982, to the outbreak, via mass action ignited in his name and grievance, of the 2007-2008 post-election violence. These are at least two major flashpoints of crises 25 years apart.
Secondly, when Raila makes large allegations of his own, such as the “State of Emergency by the end of August” TV talk of last weekend, events have sometimes unfolded almost exactly as he called them, a case in point being the disgraceful saga of the Artur Brothers back in 2006.
And even without Raila hounding him, there is the inconvenient fact that President Uhuru’s appearance in the dock in November would be barely a month before he takes the salute of the Golden Jubilee of Independence on December 12.
This is an opportunity a whole raft of politicians, both living and dead, would gladly have given a body part for, including, no doubt about it, the former PM himself.
Actually appearing in the dock and starting the long journey of the ICC trial could seriously cramp the President’s style and rain on his parade – even under a clear blue sky and the brightest December sunshine.
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May be you ought to read the latest on judges pushingamotion to have UK's Icc case dismissed.
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