Category Archives: International Criminal Court

“A reply to concerned commenters on the Ocampo charges” and preparing for 2012 in Kenya

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This is something I prepared last December at the time the ICC prosecutor initiated his charges against “the Ocampo Six”.  Now that another four months has gone by, and we are many more months away from knowing whether any trials for the Kenyan post election violence will proceed, I thought it was worth revisiting:

With respect, it is hard for me to believe that anyone seriously thinks that [former ECK Chairman] Kivuitu himself was the primary manipulator of the election results. It happened on his watch, yes. He failed, but was not the primary instigator, nor beneficiary. I am very sad that the Kreigler Commission charged with investigating the election chose to fence off from review what happened with the presidential results–this is a great loss. Nonetheless, the charges of crimes against humanity sought by Ocampo as prosecutor before the ICC will stand or fall on their own merits. While Mr. Ocampo was not elected, he was appointed through a lawful process established by the countries, including Kenya, who are State Parties to the ICC convention. What prosecutors in Kenya are elected? Yes, there are more people who could be charged with more crimes–but the cold reality is that it is almost three years since the election, and it is the ICC or nothing and no one. This is less than it could have been, but far better than nothing.

Having lived with my family in Nairobi through the campaign, voting and violence, aside from my role in supporting the election process , the observation mission and exit poll, I fully appreciate the angst over the manipulation of the results after a peaceful vote, and over the role of the authorities in both the manipulation itself and in contributing to the violence by suppressing lawful protest and even murdering innocent citizens. To date no one has been prosecuted for any of this–Ocampo’s charges against Ali are a breakthrough in this regard. Ocampo is not seeking charges against anyone from the opposition for the chaos caused by the stolen election, but rather for crimes against humanity in the Rift Valley that are akin to the violence there in 3 of the last 4 elections. The judges will decide whether the indictments are issued, and if so, the trials will proceed with both sides presenting their evidence.

To say something further that I have not said publicly before, I do want to be clear that it is my personal belief that bribery of Kenyan election officials is “what happened” in the presidential election. I have not written or spoken publicly of this before because I claim no evidence or personal knowledge. In the first instance, it is what I was told by a senior diplomat (not U.S. Ambassador Ranneberger or anyone who worked for him) during that the post election period. It was explained to me that clear evidence had been identified. I accepted this as being explained to me not as gossip or a matter of personal interest, but as important information that I needed to know in the context of my job. There was no discussion of confidentiality, but it was what I will call a “private conversation in a public place”. Nothing clandestine, nothing that I was not to report back privately or act on but obviously not something I could “go public” with without being provided more detail and evidence which wasn’t offered.

Everything else I have learned since then is consistent with what I was told, and nothing is contradictory. I still have no personal knowledge or evidence, but it is what I do believe. This is one significant part of why I continued to be of the opinion that the exit poll indicating an opposition victory in the presidential race should be released.

Certainly the last election is very much “water under the bridge”, but now Parliament must grapple with constituting a new Election Commission for the current election season with campaigns already gearing up. Kenya very much needs better election officials this time than last time. The technical capacity to hold a clean election is certainly there–as we know from 2002, and the referendum in 2005 and in 2010. The moral capacity for tragedy and chaos is there, too, as we know from 2007.

“O-Negative” Conspiracy Theories Show Kenyans Can Be As Politically Credulous as Americans

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Here is the AP today:  “Kenya’s tribal ‘O’ factor: Obama, Ocampo, Odinga”.  Apparently it is always easier to believe objectively outlandish things about people who are members of different ethnic groups–no big surprise I suppose.

Perhaps the next thing will be to see Donald Trump start expressing interest in the Kenyan presidential race.

In Kenya a lot of the problem is the degree to which news reporting is skewed by the government and other interests, whereas I think in the U.S. it is more a matter of the crowding out and dumbing down of news by the commercial celebrity culture, and the “narrowcasting” problem whereby people get their news from either opinionated sources conforming to their ideological predispositions or from superficial “he said, she said” reporting that provides nothing except the two adversarial arguments of the usual political combatants, irrespective of facts.  It may be that Kenya is on the upswing in this regard whereas here in the U.S. we are on the downswing.

At least no one in Kenya so far as I know believes Obama was born there.

Kikuyu Wananchi Deserve to Know about Bribery at ECK in Deciding Whether to Follow Uhuru and Kibaki

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The public side of the tribal rhetoric from politicians in Kenya right now is already at a level beyond what it was in the 2007 presidential campaign. [April 16 update–following warnings of arrest and other punitive consequences from the ICC the rhetoric of the suspects has been toned down at present and a movement to “blackout” coverage of the Ocampo 6 defendants had taken off.]

Uhuru Kenyatta has presented himself at the ICC in the Hague as Deputy Prime Minister and Finance Minister, by authority of “the duly elected” President.  He bases his defense for his alleged involvement with the support and orchestration of ethnic revenge attacks in the Rift Valley on Prime Minister Odinga’s call for “mass action” in the face of the ECK’s announcement of Kibaki as the election winner rather than commencing an action in the Kenyan courts.  Basically the whole situation is to be blamed on Odinga personally for not accepting his loss in the elections.

Uhuru has been designated a Kikuyu elder and announced by the old guard as Kibaki’s successor as leader of the ethnic Kikuyu, as well Kibaki’s successor in politics.  And now he is in alliance with William Ruto, his dockmate at the Hague accused on being an instigator of ethnic  Kalenjin militia against Kikuyu in the Rift Valley.  All should be forgiven except Raila.

And the spokesman for PNU, partner in the alleged Government of National Unity, has published an editorial expressing his personal view that the Prime Minister is essentially the devil incarnate.

More politics as usual, perhaps, in Kenya–but politics as usual may mean that people get killed.  It is obviously time to be concerned about the 2012 election.

A key question is whether large numbers of rank-and-file Kikuyu are willing to answer Uhuru’s war cry.  Another is whether Kikuyu business leaders outside of elective politics will aid in eventually resisting the ICC.

Most Kikuyu did in fact vote for Kibaki’s re-election in 2007.  It was a close election.  I think they deserve to know the truth about what happened at the ECK in that election in making their decision about how to respond to Uhuru’s rhetoric now.

This is from an Inter Press Service story this weekend on Martha Karua’s 2012 presidential candidacy:

[Martha] Karua helped form the National Rainbow Coalition (NARC) that won the 2003 general election, and ended nearly four decades of rule by KANU. When she entered parliament, there were six female MPs. Now there are 22 out a total of 222.

Karua strongly supported the current president, Mwai Kibaki, during his days as the Democratic Party (DP) leader and during the violent conflict that followed the disputed 2007elections which gave birth to the current coalition government with the Orange Democratic Movement (ODM) led by Prime Minister Raila Odinga.

“I supported the president at that time because that is what the electoral commission said,” she says. She was appointed Minister for Justice and Constitutional Affairs in January 2008.

But she resigned her ministerial position in frustration in mid-2009.

“I realised all they wanted was Moi to be out so that those who assume office continued with the same vices that were rampant during Moi’s era. Impunity and corruption are still the order of the day. So I quit because I did not want to be part of a government that does not listen to the cries of the governed,” Karua says.

A Closer Look at Journalism and NGOs

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Karen Rothmyer has a “terrific and necessary” piece in the Columbia Journalism Review headlined “Hiding the Real Africa; why NGOs prefer bad news” about stereotyped images of Africans in poverty in the U.S. media and the influence of NGOs working on aid projects on this coverage (with comments from Jina Moore and I so far).  Linked is the full research paper for Harvard’s Shorenstein Center.

Also at CJR is a review of Rebecca Hamilton’s Fighting for Darfur:  Public Action and the Struggle to Stop Genocide.

In The Star Andrea Bohnstedt explains that “Kibera Slum is Now the face of Kenya Abroad.”

In “Good News is No News, and that’s Bad News”, Terrance Wood writes at the Development Policy Blog that the media cover aid failures and problems, rather than success stories, and that this gives a misleadingly negative impression about the effectiveness of aid.

“Social media and the Uganda election 2011”

Gaddafi and Museveni

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Gaddafi and Museveni by AfriCommons
Gaddafi and Museveni a photo by AfriCommons on Flickr.

 

ICC Judges Summon “Ocampo Six” while Government of Kenya Lobbies for “Delay” in New York and Food Crisis Worsens [updated]

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2.4 Million Kenyans threatened by acute food shortage.

The food crisis worsens in Kenya.  [In an post last fall entitled “The Kenya Lobby, Corruption and Hunger” I noted a report predicting an increase in hunger.  We are now seeing that play out, while the Government of Kenya remains focused elsewhere.]

Ocampo Six ordered to appear in the Hague.

ICC:  Kalonzo shuttle diplomacy hits New York.

The Vice President said that Kenya has no intentions of pulling out of the ICC nor is it seeking to assist those named by the ICC prosecutor to escape justice: “All we want is [for] the UN Security Council to consider positively the Africa Union resolution endorsing Kenya’s request for a 12 month deferral to allow us to complete reforms and embark on local trials.”

For some reason the Vice President does not seem to be calling attention to the fact that the Kenyan Parliament recently voted almost unanimously to support withdrawal from the ICC, well after the promulgation of the new constitution.

[Update:  no indication in any change in position by the United States which remains unwilling to support UN Security Council intervention to stop the ICC prosecutions.]

Five Years After the Kenyan Government’s Raid on the Standard and Two Years After the Oscar Foundation Murders, Impunity Reigns and a “Local Tribunal” for Post Election Violence Remains a Pipe Dream

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As I have previously written, I have to miss the frenzy of reading the Wikileaks diplomatic correspondence, but the Kenyan newspapers are full of articles related to a few of the cables newly leaked.  Much of this is Kenyan politicians dishing on each other to curry favor at the U.S. Embassy, and probably in some cases news to Kenyan voters who don’t have the same access to their leaders as Americans do.

One of the main impacts of the leaks in Kenya, that I would not necessarily have realized, is the degree to which the well-publicized cables give the Kenyan media cover to report facts that are quite well known but that they would not otherwise dare print for fear of libel suits and official displeasure.  Certainly much of what Kenyan politicos tell the Embassy they will have told reporters, or reporters will have learned independently, but couldn’t report until the State Department’s internal “news bureau” was stolen and partially put out on the internet.

Some of the material dates back to the Government’s raid on the Standard media house on March 2, 2006.  Enough of this outrageous incident (really series of incidents) has long been well known that in any country with leadership at all serious about press freedom and the rule of law there would be some people in jail.  Nonetheless, total impunity for each and every player in all of the multiple criminal acts remains the status quo.  While U.S. Ambassador Bellamy was sharply critical at the time, there is no indication that this has been on the public diplomacy agenda since.

It is in this context that observers of the Kenyan scene have to realize that the notion of a Kenyan “Local Tribunal” that would try the kingpins of the Post Election Violence identified by the Waki Commission report was always a pipe dream.

We have a recent report on the killing of former Foreign Minister Ouko, said to have taken place at State House in Nakuru–no action.  We have the circumstances crying out for investigation in the murders of civil rights activists Oscar Kingara and J.P. Oulo–two years have gone by today with no action.

While I agree completely with the notion that as a wholly conceptual matter, a Kenyan tribunal rather than the International Criminal Court would be the best place to try the suspects for the Post Election Violence, it is also quite clear that that was never going to happen.  The will is simply not there–the Government of Kenya has a well established policy of impunity which has served the interests at stake very successfully for many years.  It will not change of its own accord, or through simple persuasion or jawboning.  A “Local Tribunal” in Kenya, if there ever were such a thing, would be a platform for deal making to preserve impunity, not a court of law.  Because the United States is not a member of the ICC, it may well be that we are not so credible as leading advocates of the ICC as the appropriate venue for the election-related trials–nonetheless, I think we should stop indulging political frivolity in the context of these grave crimes.

Related Post on local tribunal.

If Nelly Furtado and Beyonce are Embarrassed, is the Government of Kenya?

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“Revolt Cuts Short Gaddafi’s Economic March Into Kenya”, Business Daily:

It is not clear what will be the fate of the agreement that Kenya signed with the Libyan Government.

The most significant for the business community was the trade agreement in which Libya and Kenya agreed to grant each other most favoured nation treatment in all matters relating to customs duties.

The foray into Libya came shortly after the Narc party victory when Mr Kibaki’s nephew, the late Alex Mureithi, visited Tripoli in mid 2003 as a special envoy.

While details of this visit and its implications on future Kenya-Libya relations are hazy, it telling that Mureithi, who was to become the Managing Director of Tana and Athi Development Authority, was a confidant of Mr Kibaki —who said as much at his funeral in Nyahururu.

The Libyans, or rather the Gaddafi network, had lofty dreams on Kenya since it was the largest economy in the eastern Africa region.

Initially, the Libyan African Arab Investment Company had shown interest in setting up a 5-6 Star hotel in Nairobi, but the Grand Regency sale came at the appropriate time, sparking a national row on how the Libyans bought the hotel.

The Governor of the Central Bank, Prof Njuguna Ndung’u, was to tell a commission that was investigating the sale that the government offered the hotel to the Libyans without tendering.

Grand Regency was a public property and its sale should not have been shrouded in any secrecy whatever value it was given. But it was.

A conference centre in Mombasa that was also in the pipeline never materialised as the Libyans were caught in the Grand Regency pricing row that saw then Finance Minister Amos Kimunya step aside.

It was the cultural cooperation that was pushed by Gaddafi that has seen some “elders” led by Kamlesh Pattni visit Libya.

Before the revolts across the Arab countries, Kenya and Libya’s diplomatic manoeuvring was in full swing, with Kibaki sending vice-president Kalonzo Musyoka to go and lobby Tripoli to support Kenya’s efforts at the African Union (AU) to defer the post-election trials at the International Criminal Court (ICC).

Of course it was widely rumored that the concessional sale of the Grand Regency Hotel by the Government of Kenya was part of the financing for the Kibaki re-election campaign. I have nothing independent to contribute on whether or not this is true, but would simply note the lack of other explanations of various facets of the transaction and lack of thorough investigation and or prosecution of anyone involved.

For an overview of perceptions of Gaddafi in other African capitals, see “Qaddafi’s Tangled Legacy in Africa” at the CSIS Online Africa Policy Forum blog.

 

Related Post:    “Watching Alliances Experience “Blow Out” From a Build Up of Democratic Pressure
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Diplomatic Support for Marende

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On Kenya the State Department issued an official statement today calling for transparency and cooperation in implementing the new Kenyan constitution, keying off Speaker Marende’s ruling on the Kibaki appointments.  This follows a statement by the German Ambassador to Kenya on Friday that the President and Prime Minister should “sit and agree” on the key appointments. U.S. Ambassador Michael Ranneberger called the Marende ruling “courageous”, “correct”, “objective” , and based on “principle” and said that he expects that it will be appreciated and supported by the Kenyan people.

Press Statement

Philip J. Crowley
Assistant Secretary, Bureau of Public Affairs
Washington, DC
February 20, 2011

Speaker of Parliament Kenneth Marende ruled on February 17 that President Kibaki’s nominations to key judicial and budget positions were not consistent with the provisions of the new constitution, highlighting the importance of moving forward on reform transparently and cooperatively. Progress can only be achieved if the President and Prime Minister work together in a collaborative way to implement the constitution, particularly to ensure that appointments are made in a transparent and credible manner.

Adoption of Kenya’s new constitution in August 2010 was a major milestone in implementing sweeping democratic reforms set out in the National Accord. The National Accord – which is written into the constitution’s transitional provisions – calls for the two principals to consult with a view to achieving compromise on key issues. We also encourage the coalition leaders to involve civil society in the constitutional implementation process in order to achieve national consensus.

Full implementation of the letter and spirit of the constitution is crucial to realize the promise of a democratically stable and prosperous future for all Kenyans.

The Nation, “Power politics behind Kibaki-Raila standoff”:

The latest standoff in the grand coalition government is part of an orchestrated campaign to stave off the ICC intervention in Kenya’s post-election crisis, the Sunday Nation can report.

Interviews with an array of players in the top political echelons and informed legal circles revealed that the threat of ICC trials facing powerful men and the cut-throat competition to succeed President Kibaki are at the heart of the conflict that has played out over the controversial list of nominees to key constitutional offices.

Part of the scheme is the bare-knuckled effort by the PNU top brass to ensure that Prime Minister Raila Odinga does not succeed President Kibaki next year. Senior PNU politicians believe the PM is keen to use the ICC trials to eliminate competition for the top seat next year.

There is also growing discomfort in sections of PNU that a Raila presidency will most certainly support speedy prosecutions by the International Criminal Court or revive some sensitive cases touching on powerful individuals.

Apparently, forces against the prosecutions have broken ranks and see the controversial nominations as an avenue to size up their opponents.

An international law expert familiar with the workings of the ICC said key players out there have been keenly following recent developments in Nairobi and Kenya risks being designated a hostile State.

“The kind of relationship that existed between the ICC and Kenya is no more because of the shuttle diplomacy to the AU and the letter to the UN Security Council,” said the lawyer who cannot be quoted discussing ICC matters.

Here is an Alex Ndegwa feature from today, “Marende: the voice of reason amid chaos”. I agree.

US offering reassurance of support for ICC process on Kenya

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Sunday Nation:  “Envoy: US will veto deferral of Kenyan ICC case“:

The Obama administration will block any attempts to halt trials of post-election violence masterminds at The Hague, a decision which means government efforts to get the process deferred at the UN are almost certainly doomed to failure.

Outgoing US ambassador Michael Ranneberger told the Sunday Nation Washington would not back any delay of ICC action.

“The American position is that we want the ICC process to proceed expeditiously. We do not want to see the process delayed. We think that carrying through with the trials is absolutely crucial to fighting impunity and to ensuring accountability.”

The US holds veto power in the Security Council and a rejection of the petition by any one of the five permanent members of the Council means the appeal would stand defeated. Highly placed diplomatic sources also indicated that Britain and France were unlikely to support the Kenya bid for deferral.

Mr Ranneberger stopped short of stating that the US would apply its veto power when the deferral request comes up at the UN. But he said the Obama administration wanted The Hague process to continue without interruption.

“We never say in advance what our positions are to be (at the UN) so obviously I can’t say that we will veto. What I would say is that we do not see this effort to seek deferral as positive and we support a continuation of the process and we want to see the process move ahead expeditiously.”

Sunday Standard:  “Ranneberger explains why US backs The Hague process”:

Ranneberger: Let me be very clear. The US supports the ICC process and the reason is simple: There must be accountability for the post-election violence. Terrible crimes were committed, Kenyans deserve justice and it’s gone to the ICC and that process needs to be carried through. Our deputy secretary of state was very clear in his public statements that we support this process.

Q: Kenya is lobbying the permanent members of the UN Security Council, if that is put to the vote, what will be US’s likely position?

A: Nobody in the Security Council ever announces the answer hypothetically. The ICC process is vital to countering impunity and to ensure that type of violence never happens again. One of the biggest problems in Kenya and one of the things that have held this country back for so many years is the culture of impunity. And so these issues simply must be addressed.