Kenya- ICC, Who is on trial? the ICC, Kenyatta, Ruto and Sang, or Kenya?

The trial for William Ruto and Joshua Sang started this week six years after the worst electoral violence rocked Kenya. The two are facing charges relating to their roles in the 2007-2008 violence in which 1500 people were killed and over ½ a million people displaced internally.

In the last election in 2013, Ruto and Uhuru Kenyatta– presidential and a running mate, run a successful anti-ICC election campaign and won. Their working together was counter-intuitive- their respective communities traditionally fought during elections since the introduction of multiparty in 1991, and in 2007, they were the most affected.

Post-election, the ICC trials will test Kenya’s well-established status as a staunch Western ally, a relation that survived some of the most testing historical challenge, including the introduction of multiparty politics post the cold war.

The trial for Uhuru Kenyatta will start next month, and it will mark the first time a sitting of head state and his deputy will be attending the trial.

For the court, the Kenya’s cases are a watershed because their consequences will resonate beyond Kenya. Whichever way the cases will go, the court’s relations with Africa will be irredeemably changed. A victory against the Kenya triumvirate – Kenyatta, Ruto and Sang will deepen the “race hunting” narrative, and a loss will forever dent the court already tenuous image problem in Africa, coupled with its failure since its establishment slightly over a decade ago to have a significant successful prosecution.

President Uhuru Kenyatta and Deputy President Wililam Ruto during one of the election campaign rallies.

Over the course of the trial, we shall provide analysis about the cases.  And the following is the first part of a series that looks at Kenya and the ICC

        Imperialism vs impunity

The debates around the ICC in Kenya have evolved along two distinct lines; impunity and western Imperialism. Those in support of the ICC argue the court’s involvement in Kenya will break the back of the entrenched impunity, while those against it say the court is a tool of Western imperialist in Africa. As the 2013 elections approached, a subset to the latter argument emerged- the court’s involvement in Kenya could unravel the on-going reconciliation effort, thus undermining peace.

But a counter argument to that is, the search for justice is not mutually exclusive from the search for stability and hence peace. If anything, in Kenya’s case, long term stability and peace is predicated on ending impunity. Therefore, arguing the ICC is a threat to peace misses the point; electoral violence in Kenya did not start with the 2007 elections violence, but the 2007 violence was a logical outcome of violence arc that Kenya has been on since the introduction of multiparty politics in 1991.

Remarkably, there has hardly been any significant prosecution of the perpetrators of this violence. Of the alleged 6000 middle and low level perpetrators of violence, to date, the local courts have prosecuted only two cases. Reinforcing the argument, taming impunity was paramount for sustainable peace.

Before judicial reform was entrenched, the ICC’s involvement in Kenya served as the deterrent role because the present cycle of electoral violence cannot be stemmed exclusively through reconciliation without criminal accountability.

Conveniently, however, the ICC has been cast as Western imperial tool.  During the election campaign this discourse received tremendous resonance with the population. Arguably, Kenyatta and Ruto were elected on the back of the ICC- bashing

However, unpacking the imperialism discourse reveals it is more unseemly and largely a rhetorical hectoring rather than fervent ideological commitment. First, placing the ICC in its proper context regarding the Kenyan case; admittedly, the ICC’s intervention was a product of failure of the domestic judicial system. To date, there have been only two prosecutions of low-middle level perpetrators of 2007-2008 violence. In the face of such pitiful accountability record, even those mildly swayed by the imperialist discourse will be hard pressed to wholly accept it. Further, the hiring of western PR firms as well as an all foreign legal teams makes the entire imperialism argument weak.

Second, during the Kenya’s mediation following the violence, Kofi Annan– the chief mediator, established three commissions. One of those commissions was the commission of Inquiry into the Post-Election Violence (CIPEV) also known as the Waki commission, after its Chair. CIPEV among other things recommended the establishment of a Special Local Tribunal to try the perpetrators of violence. To insulate its work from the local politics, and engender a broad appeal, some of the members of the commission were drawn from outside Kenya. Cognizant of Kenya’s history of impunity, and government’s use of previous commissions of inquiry to buy time,the commission established a water tight schedule timeline for the establishment of the tribunal, its mandate, the procedure of appointment, and the consequences of not establishing it- handing over of the evidence and names of the perpetrators of the violence to the Chief Prosecutor of the ICC for investigation and prosecution.

The bill to establish the tribunal was defeated more than once by the MP’s, many who argued, “ let’s not be vague, let’s go to The Hague” Even after the defeat in parliament, Annan led team were keen to explore an administrative mechanism of establishing the tribunal. But when they realized there was little appetite and non-existent political will to establish the tribunal, Annan handed over the list of the names and the evidence gathered by the Waki Commission to the Chief Prosecutor Moreno Ocampo, who initiated the case.

Thirdly and closely related to that, the Annan- led mediation was African Union sanctioned effort. Technically, despite the protestation during the AU 50th anniversary, the sending of the cases to The Hague was done with the support of the African Union.




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