Why Raila can’t embrace Ruto for presidential ticket

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By MAKAU MUTUA
Posted  Saturday, October 20  2012 at  17:34

IN SUMMARY

• Jaramogi’s son should think hard and long before embracing Eldoret North MP William Ruto. It’s a rapprochement that could wipe out all of Kenya’s reformist gains
• One shouldn’t say – or do – anything to be elected
• Would Kenyans elect Mr al-Bashir? That’s what Mr Ruto is asking Kenyans to do

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Prime Minister Raila Odinga is playing with fire. Fire burns, and can deform.

That’s why Jaramogi’s son should think hard and long before embracing Eldoret North MP William Ruto. It’s a rapprochement that could wipe out all of Kenya’s reformist gains.

No real reformer believes that you must achieve power by “any means necessary”. Nor should Mr Odinga. He can’t preach water and drink wine. It doesn’t matter that in politics there aren’t permanent enemies.

But it’s unarguable there are permanent interests. This is the question – does Mr Odinga have permanent interests? If so, what are they – and are they reformist to their core? The answer to this question will tell us the mettle of which Mr Odinga is made.

One shouldn’t say – or do – anything to be elected. That’s political prostitution, and must be unacceptable. We know why Mr Ruto needs Mr Odinga. He has no chance – zilch – of being elected the next President.

There’s no plausible scenario under which Mr Ruto can become President.

And this is even before we factor in the International Criminal Court and Chapter Six – on leadership and integrity – of the Constitution.

That’s because Mr Ruto is purely a “tribal leader”. He has zero purchase outside the Kalenjin in his native Rift Valley. He’s the most tribalised of all the candidates running.

But get this – he doesn’t even control the entire Kalenjin vote. He’s a beleaguered man who’s desperately gasping for air.

Mr Ruto’s woes become gargantuan when you bring in the big gorilla – the crimes against humanity charges facing him at The Hague.

Who in their right mind – pray – runs for the presidency under such a grim indictment? Sudanese President Omar al-Bashir comes to mind.

But the man is an international pariah who’s been accused by the ICC of committing genocide, war crimes, and crimes against humanity – the vilest crimes imaginable – against his own people.

Would Kenyans elect Mr al-Bashir? That’s what Mr Ruto is asking Kenyans to do.

Put him at the pinnacle of power when he’s been indicted by the ICC. Kenyan voters might be gullible, but they aren’t stupid. Mr Odinga needn’t be reminded of this fact.

Then there’s Chapter Six of the Constitution. I’ve heard strange legal arguments by otherwise good lawyers who want the law to fit “their facts”.

The core of their argument – if I can call it that – is that Mr Ruto and his co-accused are innocent until proven guilty.

For this reason, so the argument goes, it would be “unconstitutional” to bar them from running because they haven’t been convicted.

These legal apologists say they’ve read the entire Constitution, not just Chapter Six. In their view, Chapter Six is trumped by other sections of the same constitution. This is willful ignorance. It’s legal mumbo-jumbo and gobbledygook.

Why include Chapter Six if it would be nullified by other parts of the Constitution? Did legal eagles read the High Court opinion in the Mumo Matemu case? Mr Matemu’s appointment to head the anti-corruption authority was stillborn because of Chapter Six requirements.

In common law, we call that precedent – meaning that cases that raise similar questions must be seen in its context.

The Baraza Tribunal – not a court of law – similarly dealt with leadership integrity questions and adds to the growing corpus of law on the new dispensation.

That’s why Mr Odinga’s embrace of Mr Ruto would be going against the grain of reform – and the emerging legal standard for leadership.

Trove of votes

This is what the new Constitution says – public offices are no longer a pit latrine to accept all refuse. Mr Ruto clearly hopes to parlay his Kalenjin trove of votes to seduce Mr Odinga into an unholy alliance. He knows that Mr Odinga has been wounded by defections from ODM.

What better time to politically extort Mr Odinga? You’ve got to give it to Mr Ruto – he doesn’t miss an opportunity. Is this a game the PM wants to play? If so, what does it say about him?

We all know the terrible and unflattering things that Mr Ruto has said about Mr Odinga since they parted ways. Is Mr Odinga now ready to forget and forgive? What, we ask, does Mr Odinga have to give to Mr Ruto in return for his support?

Will Mr Odinga now oppose the ICC and Chapter Six if Mr Ruto rejoins him? Let’s say, for the sake of argument, that Mr Odinga is elected President in 2013 and the ICC comes calling for Mr Ruto. Would Mr Odinga hand Mr Ruto over to the ICC, or would he tell The Hague to go jump into a lake?

These aren’t small questions. Mr Odinga must answer them if he embraces Mr Ruto – and remains a candidate for State House.

An embrace of Mr Ruto would be a vote for impunity. It would be turning his back on justice for the 1,333 dead, the looted and raped, and the hundreds of thousands displaced. Does Mr Odinga want all that on his conscience?

The way I see, only Mr Ruto would stand to gain by rejoining forces with ODM. Mr Odinga would be declared a fraud – clear and simple.

It’s not just about getting to State House – it’s also about how and with whom you get there. You can’t sell out core principles and still proclaim them.

That would be completely hollow. I am also sure of one more thing – if Mr Odinga caves to the forces of impunity, then Kenya will have entered a dark tunnel. In that case, our struggles over the three decades will have been for naught.

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