ICC Kenya ruling: Deep democratic shifts and blow to impunity

The 23 January 2012 ruling by the Pre-Trial Chamber of the International Criminal Court confirming the two cases against four Kenyans, thereby opening the way for their full trial over the 2007/8 post- election violence, represents a victory for the victims and the survivors of the carnage as well as the democratic forces in the east African country.

To the hundreds of thousands of displaced children, men and women still languishing in the camps ravaged and plummeted by harsh weather conditions and uncertain livelihoods; to those who were violated through rape and other forms of sexual violence; to those are still nursing physical and psychological scars; to a nation traumatised by ethnic hate, partisan chest-thumping and selfish power games, the recent ICC ruling offers a respite, albeit an impartial one to all that they have experienced and borne witness to over the last five years – even though the roots of the conflict goes back two or three decades.

By indicting Deputy Prime Minister Uhuru Kenyatta, one of the wealthiest and most powerful individuals in Kenya, as well as influential politician William Ruto and civil service head Francis Muthaura — who many argue acts as if he was the de facto Prime Minister – the ICC has sent a clear warning that the prevailing culture of impunity by members of Kenya’s political elite is being shattered.

The chilling, detailed accounts of how the four accused individuals – the fourth is radio presenter Joshua arap Sang – masterminded aspects of the post-election with ruthless precision underscored how high the stakes were in 2007 in terms of determining which faction of the comprador bourgeoisie would supervise and manage the Kenyan neo-colonial state. Being a spillover from colonialism, the contemporary structures of governance and domination were tools of maintaining the patron-client relationships which are at the heart of elections at the presidential, parliamentary and civic levels. Up to the passage and promulgation of the new constitution in Kenya in 2010 it was literally a matter of life and death who became president, minister and member of parliament because these were essentially ‘eating positions’ where members of the country’s elite enriched themselves through corruption and rewarded/awarded their supporters, relatives and associates with sinecures, tenders, contracts and other perks.

The existing political parties were ideologically bereft vehicles meant to take the elite to the citadels of graft-tainted privilege.

Ironically, it turned out that it was those elite forces close to retiring President Mwai Kibaki (who himself had romped to power in 2002 as part of a massive anti-Moi and anti-KANU reform coalition) who were most desperate to cling on to state power to the extent that they conspired a civilian coup to block the ascendancy of Kibaki’s erstwhile ally and fellow elite, Raila Odinga, to the apex of political power following the hotly disputed presidential elections in December 2007.

In fact, the details seeping out of the lengthy judgments in the two Kenyan cases before the ICC buttress the arguments of many (including the present writer) that what happened in 2007 was nothing but a naked, brutal civilian coup perpetrated against the Kenyan populace via live television from the tallying halls and the electoral command headquarters of the Kenyatta International Conference Centre in downtown Nairobi by forces bent on a continuation of the Kibaki regime.

The way in which all sides of the Kenyan political elite harnessed tribal animosities, deep-seated regional grievances and factional party politics serve as a convenient smokescreen to the underlying political reality that the post-election violence had more to do with a vicious cat fight within and across the comprador bourgeois fragments for the spoils of the neo-colonial state. It went beyond the ethnic veneer of Kalenjins resenting Gikuyus or Luos loathing this or that community. At the end of the day, the pin-stripped ethnic chieftains from their suburban lairs in such posh and leafy Nairobi neighbourhoods like Runda, Karen, Muthaiga, Kitisuru, Loresho and Spring Valley have no qualms about doing business or even copulating across ethnic cleavages.

All the chief suspects- Uhuru, Ruto and Muthaura- share a common history in that their foundations of wealth and power were consolidated when they were active participants in the KANU political machine. For instance, Uhuru Kenyatta was KANU’s presidential candidate in 2002 when William Ruto was serving the then ruling party as a very powerful Secretary General while Francis Muthaura was already a powerful insider in the state bureaucracy.

If one were to believe the allegations in the confirmation rulings of the ICC, the chief suspects were effective in executing their violent plans precisely because of their access to the instruments of state terror. In the case of Muthaura and Uhuru they were part of the Kibaki-led power structures. In the case of Ruto it was because of his association with the Moi-KANU regime that he was able to harness the networks, resources and technical expertise of individuals who had been senior members of the country’s security establishment. In this context the post-election violence had a lot to do with state organised systemic terror more than it had to do with individualised acts of random political thuggery. The involvement of the police, the paramilitary and other state security organs in unfolding the Kibaki civilian coup had its corollary in the equally organised plans of those elite forces waiting in the wings to take advantage of the projected ODM victory to displace ‘suspect’ populations from the Rift Valley.

By confirming the crimes against humanity charges against Uhuru and Muthaura the ICC was essentially saying that Mwai Kibaki bears great responsibility for the post-election violence.

How about Raila Odinga? The ICC pointedly hauled William Ruto who was one of the Deputy Leaders of ODM, and Henry Kosgey, who served as the party’s Chairman before it at The Hague. Was this an oblique allusion to the Prime Minister’s pre-knowledge, collusion and involvement in the post-election violence? That has been the argument of the KKK/G7 political alliance, which has been insisting that Raila Odinga is cynically sacrificing his former lieutenants and acolytes for fleeting political expediency.

The ICC process itself is another sign post of a Kenya coming to terms with its ugly past, squalid present and uncertain future. It is a child of the Kenya National Dialogue process which gave rise to the Kriegler Commission delving into the reasons behind the 2007 election debacle and the Waki Commission which collected evidence and testimony about the post-election violence. In fact it was the commission led by Kenya High Court judge Philip Waki which produced a report fingering the leading suspects deemed to have borne the greatest responsibility for organizing and fanning the post-election violence. Waki recommended the setting of a special, made-in-Kenya tribunal to try those suspects. The failure of Kenyan state, especially its parliament, to create an enabling environment to set up this local tribunal triggered the ICC process which has now ensnared the four Kenyans who will face full trial.

At the pan-African level, the ICC has been dubbed by some as a sort of Guantanamo Bay by Europe for Africa and many Kenyan social justice activists and civil society would have preferred an option grounded in Kenya and driven by Kenyans to try the post-election suspects in a manner akin to what was in place in Sierra Leone and Rwanda. But the cynical rejection by the mainstream political elements of this option mooted by progressive legislators like the Imenti Central MP Gitobu Imanyara galvanized Kenyans into seeking other options for ending impunity.

There is no doubt that the ‘international community’, often a convenient nick name for the Western powers, had their own geo-political reasons for pushing The Hague option even if some (like the United States) are not party to the Rome Statute. But to the extent that these self-interested agendas dovetailed with the clamour by Kenyans for public accountability, the ICC process became very much a popular national choice by Kenyans across the political and ideological divide – as evidenced by the successive opinion polls on the subject over the past three or four years.
Even as Kenyans laud the ICC ruling, it is not lost on them that the Hague process leaves out literally thousands of perpetrators and lots of people (like the residents of Kisumu, Kibera and other areas touched by the post election conflict) grumbling that they were ignore by Chief Prosecutor Luis Moreno-Ocampo and his colleagues in the Dutch city.

Kenyans seek closure to the issues thrown to the fore by events of 2007 and 2008. There is a need to redress historic injustices, regional inequalities, gender-based violence, youth marginalisation, oppression of certain ethnic communities, religious groups and cultural minorities. There is a need to rebuild and retool Kenya.

The constitution passed in 2010 is attempting to do that. As a statement of intent, it is quite commendable and has served to raise social and national awareness about a full gamut of rights and responsibilities.

2012 being an election year has proved be a lightning rod for passionate discussions and deep reflections about all these themes surrounding national identity, collective harmony, inter-communal reconciliation and general conflict transformation. In the wake of the ICC ruling and the public chest-thumping by the two presidential candidates among ‘The Hague Four’ (Uhuru and Ruto) that it would be business as usual in terms of electoral campaign rhetoric, a gaggle of ordinary Kenyans has stampeded to the judiciary and the figurative courts of national opinion demanding the resignation of Uhuru and Muthaura from their public/state offices and harshly critiquing intrigues by members of the Kibaki kitchen cabinet to downplay the importance of adhering to the standards set out in Chapter Six of the Kenyan constitution guiding the conduct of people in public office or seeking leadership positions.

As Kenyans move forward, it is absolutely crucial for those patriotic and democratic-minded citizens to abandon the comfort zones of academic seminars, workshops and retreats in downtown five-star hotels and return to the streets and other sites of popular struggle.

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* Onyango Oloo is a Kenyan social justice activist, writer and former political prisoner and exile. He blogs at Democrasia Kenya.
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