Did we do this? I really have no idea factually. Back in 2009 when I attended my first annual meeting of the African Studies Association, in nearby New Orleans that year, I was left with the notion after sitting at the knee of an up-and-coming “scholar/actor” that diplomatic players in the U.S. and/or the U.K. and whomever else might fairly obviously be expected to try to broker a pre-election Kalenjin-Kikuyu coalition.
At the time, the idea of helping put together Uhuru Kenyatta and William Ruto would have seemed improbably Machiavellian.
Again, as I said, no idea. But if I were to resume taking a look-see into the 2013 election following my initial FOIA request about the IFES program at the IEBC I would be interested to get into the pre-election period as well.
To me, Daniel arap Moi in person seemed more like Raila (and I am guessing Uhuru, whom I never met). A more relaxed demeanor reflecting longevity in the game presumably. At that time, in July 2007, Moi seemed to be trying to stay relevant politically. (Shortly after I met him the deal was cut whereby Moi and KANU, led nominally by Uhuru, crossed over from leading “the official opposition” to supporting Kibaki’s re-election and Moi was appointed by Kibaki as Envoy to Sudan).
Ruto was conspicuously more telegenic and articulate. Thus his natural role in squaring off against Kibaki’s Justice Minister Martha Karua at the Electoral Commission (ECK) Headquarters on television at the Kenyatta International Conference Center (KICC) during the tally in the days following December 27, 2007 election (until the Kibaki Government through Interior Minister John Michuki shut off the live broadcasting). Even though Ruto wasn’t a lawyer.
The surprising thing to me when I introduced myself briefly to Ruto was how different he came across in person than on television. A person of much more intense physical presence than a typical politician like Moi or Raila, Kalonzo, Mudavadi or others I met.
This impression lends itself to a question: is Ruto a typical Kenyan politician, or is he a telegenic but more especially dangerous person who has simply been normalized by pundits and diplomats because he acquired power by virtue of a “coalition of accused kingpins of violence” with Uhuru Kenyatta during the failed ICC prosecutions for the 2007-08 Post Election Violence (PEV)?
Or was Ruto simply normal in his relation to political violence and wrongly tagged as more responsible than other Kalenjin politicians, such that the opportunistic political gain from being indicted by the ICC is just one more common facet of democratic competition. So that in the environment of total agreed impunity of the political class for the murder and mayhem of 2007-08 Ruto has simply the normal association with violence so that his qualities of telegenic articulation can be credited positively rather than treated with suspicion?
Or is it, to the contrary, plausible to see him as something something else entirely, a fresh candidate now, breaking the mold of Kenyan politics not by virtue of having been an especially dangerous protagonist of ethnic violence, but by becoming the first real reformist to win by moving Kenya beyond ethnicity on a platform of better economic policy? Or a fresh candidate breaking breaking the mold in some other way?
Some of this depends on whether one sees continuity between the actions and history of politicians from one campaign cycle to the next, or whether it is tacitly agreed that democracy means every candidate should get a clean slate to be whatever they want to be in each particular campaign.
(Note that none of these questions are intended to comment in any detail about other comparisons between Ruto and his rivals or examine the track record of those rivals, each of whom have their own controversies even if they are easier to group together more generally.)
Excerpts from the unredacted portions of the Quarterly Reports submitted by CEPPS, the Coalition for Political Party and Process Strengthening, to USAID, released to me last month per my 2015 FOIA request:
The overall goal of this program [USAID Kenya Election and Political Process Strengthening or “KEPPS”] is to improve Kenya’s ability to hold free, fair and peaceful elections through support of the new electoral commission, political parties, civil society and media.
The reports show that key Objectives included to “Strengthen Election Management Body Capacity,” “Enhance Functionality of the Electronic Results Transmission System,” “Further the Transparency and Effectiveness of the Voter Registration Process,” and “Support Credible and Sustainable Monitoring and Observation Efforts”. Vast amounts of the material is redacted on the assertion of alleged FOIA exemption for confidential commercial information submitted by a private person. Redaction is so aggressive as to include in some instances blocking the entire list of Objectives, although the specific items listed above show up elsewhere.
The USAID program was originally funded for $18.5M from the Second Quarter of 2011 through the Second Quarter of 2014 (with another year and roughly $5M added through amendments). The original funding was split among the Consortium for Election and Political Process Strengthening parties: IFES $6M; IRI $1.5M; NDI $11M.
*Assisting the IEBC in procurement of the Electronic Poll Books, specifically technical evaluation of the offers (This was planned for the current quarter but was delayed by IEBC).
*Guiding IEBC in development of procedures and training programs for voter registration workers (Also delayed by IEBC due to delays in procurement of BVR equipment).
*Providing a consultant to serve as assistant to the Chairman of IEBC during the absence of his Personal Assistant who has accepted a fellowship to continue his studies.
The tension among the Objectives involving imbedded support to the IEBC and support for credible monitoring and observation was apparent very early on in the Quarterly Reports.
Planning for the results transmission was derailed to a great extent by the repeated cycles of crisis with regard to the BVR procurement. Meetings scheduled with the IEBC to plan for a system were repeatedly cancelled as a fresh new crisis seemed to occur weekly and even daily.
The risk of failure of the electronic poll books procurement jeopardized the planned use of the poll books to enter results from each polling station, and may necessitate a return to mobile phones. In spite of the increased complexity of conducting elections with six [REDACTED Section].
Objective 5 [of USAID program]: Enhance the functionality of the electronic Results Transmission System.
* Specifications have been developed for using mobile phone handsets as a contingency in case the procurement for electronic poll books fails.
Voter registration timelines announced by the IEBC lapsed repeatedly as a result of delays in the acquisition of BVR kits. Unable to settle on a vendor and a system at the end of August, the IEBC announced that it would instead revert to the manual register for the elections. However, the Cabinet exerted great pressure on the IEBC to retain the use of a BVR system and subsequently took over the tender process, negotiating directly with the Canadian Government for delivery of a BVR system …
The decision of the government to pressure IEBC to proceed with BVR, without regard for delays caused by this decision, and IEBC’s inability to resist that pressure has created a high-risk schedule with no room for slippage in planning for March 4, 2013 elections.
At the same time, IFES was working on “Restoring the eroding levels of public confidence in the integrity and competence of the IEBC” and “Ensuring an efficient and transparent vote count and results transmission system”.
But was not the public ultimately correct to have declining confidence in the integrity and competence of the IEBC, both in the lead up to the vote, and in light of the ultimate failures with both the questionably acquired Poll Books and the Results Transmission System?
Fourth Quarter of 2012:
The Results Transmission System (RTS) solution procurement process was commenced during this Quarter and an in-house RTS was developed and presented to the IEBC as a backup system [REDACTED Section].
Results Transmission: IFES has continued to collaborate closely with the IEBC in the creation of a fully working prototype of the overall Results Transmission System. IFES has also, with approval of the IEBC, agreed to procure a Results Transmission System (RTS) solution and procurement is underway.
For an idea of what was being discussed publicly in the fall of 2012 (when election was originally scheduled) see, i.e.:
Ultimately, the Results Transmission System failed in practice. While it was allegedly acquired and deployed with an expectation of reliable performance, it initially displayed unverified and uncertain information that shaped global media reporting of the expected outcome of the eventual vote totals, but was then shut down completely by IEBC Chairman Hassan on the alleged basis of failure due to system overload.
The IEBC went on to announce a final first-round win for the Uhuru Kenyatta and William Ruto ticket with 50.07 percent of the vote in spite of the lack of the electronic system specified in the Constitution and the lack of a demonstrable manual contingent system and the expelling of party agents and election observers from the national tally process, among other irregularities.
This leverage carried over into the Supreme Court as Kenyatta and Ruto and the IEBC defended the alleged 50.07% margin. IFES, according to correspondence and reporting provided at least some support services to the IEBC in litigating alongside Kenyatta and Ruto against Odinga and Musyoka as the opposition candidates and a separate election challenge from civil society. So far as I know the role of IFES in acquiring the RTS with US funds did not come up in the litigation, or in the reports of Election Observers, either those supported by CEPPS under this USAID KEPPS program or otherwise.
1) Does the ICC indictment against Bashir hinder the prospects for Sudanese to get Bashir out of power through popular protest?
2) Are we all agreed that the ICC is not ready to prosecute a case against Bashir even though the facts of the case are many years old and the charges themselves have been pending for almost ten years? If so, is this not hugely important to weighing the practical value of the Bashir case to the Sudanese people today?
3) How many Member States have declined to act on the Bashir warrant when he was in their jurisdiction? How many have attempted to act? How many Member States have honored the spirit of the case against Bashir during its pendency?
4) What diplomatic efforts have the Prosecutors been making during the pendency of the Bashir case? Is diplomacy by a Prosecutor a form of informal pleas bargaining? Is it really the case that the ICC cannot plea bargain? Is it in the larger interests of justice for a jurisdiction to have a prosecuting authority that cannot plea bargain? What about pardon authority?
5) What are the lessons from the failed cases against Uhuru Kenyatta and William Ruto? And more broadly from the overall success of the perpetrators of political violence in Kenya in avoiding prosecution, avoiding other penalties or sanctions, keeping the political gains achieved through violence and obtaining further support from Member State governments and other governments which notionally supported accountability?
I recognize that this is a very tough time for human rights and humanitarianism as reflected in this post on counter-humanitarianism, 2019’s biggest challenge: the humanitarian sell-out” from Christina Bennett at the Overseas Development Institute. All the more reason those of us who care about people in the hands of angry rulers need to ask ourselves the hard questions.
Update: The International Crisis Group has a new report out titled “Prospects for a peaceful transition in Sudan improving” (h/t The Official blog of David Shinn) which notes the ICC issue and discusses the idea of bargaining through the UN Security Council’s deferral process:
The UN Security Council might also offer to request the ICC defer investigation or prosecution of Bashir’s case for one year, pursuant to the Rome Statute’s Article 16, were he to resign or to leave office in 2020; the deferral could be extended provided Bashir stayed out of – and did not interfere in any way with – Sudanese politics. The downsides to deferring his case would be enormous, but without a pledge along these lines, Bashir is unlikely to step down.
One problem with this is that 3 of the Permanent Members of the Security Council are Non-Members of the ICC. China and Russia are hardly advocates of human rights, rule of law or democracy and the present United States administration expresses opposition to the existence of the ICC as such, escalating the complications associated with U.S. diplomacy involving ICC cases. What are the interests of the CCP here? Reports indicate that the Bashir regime has brought in Russian “Wagner Group” mercenaries.
Of course in the Kenyan cases, unsuccessfully pursuing a Security Council deferral was the major diplomatic priority for Kenya’s Government for a period of years, as well as attacks on the Court though the African Union, IGAD and whatever other fora could be found. The diplomacy failed, but the Prosecution failed anyway, with loss of life and other large costs left to the witnesses and victims.
Meanwhile, Kenya is paying an average of about $343,000.00 “severance” to each of the outgoing Independent Electoral and Boundary Commissioners for leaving earlier this fall rather than completing their terms through November 2017. No signs of accountability for the #Chickengate bribes to the IEBC by Smith & Ouzman that were prosecuted by the UK and no sign of accountability for corruption in the subsequent 2013 election technology procurements.
While the “buyout” has been negotiated, the incumbent IEBC staff without the “servered” Commission has been proceeding to undertake election preparations that will be fait accompli for the new Commission when it is appointed next year.
Accordingly, the chief executive has proceeded to report plans to spend an astounding 30Billion KSh to conduct the 2017 general election, while setting a target of 22 million registered voters. In other words and figures, roughly $13.40US per registered voter if the target is met or $19.60US per currently registered voter. (For comparative data from places like Haiti and Bosnia,see The Ace Project data on cost of registration and elections.)
The International Criminal Court has ruled that Kenya’s President Kenyatta must appear in the Hague for the status conference in his case on the confirmed charges relating to the Mungiki revenge attacks in the eastern Rift Valley during the post-election violence in early 2008. At the time in question he was KANU leader and Kibaki’s new Minster of Local Government following the January 8 appointment of the “upper half” of a new cabinet prior to the African Union sponsored mediation led by Kofi Annan.
The AU process as structured between ODM and PNU negotiating teams stalemated, with the active resistance of key Kibaki “hardliners” and parts of the PNU coalition, including KANU, but Annan was able to get a last minute deal signed off on by Kibaki and Odinga that ended the immediate crisis on February 28. The settlement led to a Government of National Unity, with the addition of more cabinet ministers and a new, and ultimately temporary position of Prime Minister for Odinga, along with the agreement to appoint commissions to investigate the election itself and the post election violence.
The “Waki Commission” investigating the violence, in an unprecedented display of independence, provided a sealed envelope of key suspects to Annan for potential referral to the International Criminal Court in the event local prosecutions were not forthcoming, along with its extensive public report and redacted annex of persons credibly identified as having a possible individual responsibility for investigation. (The “Kreigler Commission” followed the ordinary practice of presidential commissions from the Moi era and reported privately to the President, and then released a public report disclosing broad flaws in the overall administration of the election but ducking investigation of the central tally at the ECK headquarters in Nairobi as discussed in Ambassador Ranneberger’s cable here.)
Eventually, Annan turned the envelope over to the ICC, which authorized investigation. Charges were initiated by the Prosecutor against six and confirmed by the Court against four in January 2012, of which one was dismissed by the new Prosecutor. So how has the defense of the cases been conducted since, or perhaps more descriptively, the counterattack?
. . . The ICC began to examine the Kenya situation in 2008-09, well before the 2013 election. This constituted a potential risk that continued to increase once the ICC received permission to start a formal investigation and the cases progressed.
The election came into play when two of the ICC indictees — Uhuru Kenyatta, a Kikuyu, and William Ruto, a Kalenjin — decided to run for president and deputy president… It was an opportunistic alliance of convenience as the ICC had accused both individuals of masterminding the 2007-08 ethnically targeted violence against each other’s communities. Ironically, this union, the negative ethnicity that accompanied it, and the ICC’s involvement also may have partly deterred violence in the 2013 election.
Winning the election was part of a key defense strategy to undercut the ICC by seizing political power, flexing it to deflect the ICC, and opening up the possibility of not showing up for trial if all else failed. The strategy entailed using a series of delaying tactics to ensure that the ICC trials would not start until after the defendants had won the election and gained power at the highest level. The tactics ranged from mobilizing international organizations against the ICC, making numerous legal challenges designed to delay the court, and the intimidation of potential witnesses, allegedly by defense sympathizers and go betweens, to keep them from assisting the ICC.
The tactics were part of a larger design to undercut the ICC. Demonizing opponents, politicizing ethnicity, and attacking the ICC as a tool of the West both before and during the presidential campaign served this end and victory in the election. Once they won the 2013 election, Kenyatta and Ruto came up with another tactic: asking for concessions based on their political power, including pleas to drop their cases or not be physically present at trials.
Mueller suggests that understanding the interplay between law and politics in this situation, while very much business as usual in Kenya where “the rule of law is still weak, politicized and hard to enforce [and] individuals are often sanctioned for trying” raises serious questions of much broader international application as the Kenyatta, Ruto and Sang cases play out on a global stage in the arena of treaties, international organizations and international human rights norms.
Within Kenya there have been two momentous court decisions since the 2007-08 election and ensuing violence. Both were decided at the High Court (the Kenyan trial court, not the Court of Appeal or Supreme Court). The first was the ruling that President Kibaki was not entitled to unilaterally nominate the new Attorney General and Chief Justice. This led to the compromise whereby President Kibaki agreed to obtain the consent of the Prime Minister for a new selection for the Chief Justice, paving the way for the litigation of the CORD petition over the IEBC’s administration of the election process and the 2013 version of the central presidential vote tally (with the new Attorney General as amicus on the other side of the case). The second was the lower court ruling that declined, eventually, shortly before the election date, to decide whether or not ICC crimes against humanity suspects were eligible to run for president under the integrity provisions of the new 2010 Kenyan constitution. Thus in one instance a High Court stood up, and in another one stood aside, and ultimately the larger questions of power and violence at the highest levels within Kenya have been preserved for politics rather than law.
How will the Attorney General and the Kenyan State conduct itself on the international legal stage at its October 7 status conference, and how will Uhruru Kenyatta, as defendant first, and then President, conduct himself on October 8 at his status conference? I suspect Kenyatta will go, in his own personal interest as a defendant, knowing that he remains a long way from actually facing trial so far, even though by attending he will be undermining some of the anti-ICC forces he has unleashed in his counterattack on the Court.
For me, one the biggest tart ironies of the whole saga is the recent role of the African Union in joining the attack on the Court. The crimes alleged arose out of a purely Kenyan election dispute. If the AU wanted to support the inviolate primacy of the Kenyan presidency, why did it not stay out of the matter in the first place in 2008? The involvement of the ICC is the result of the settlement brokered by Kofi Annan as AU-endorsed emissary, which was agreed to personally by Kenya’s sitting president at the time!
The International Criminal Court has directed that the Kenyan government be compelled to provide the property and financial records associated with President Uhuru Kenyatta if the government was not ready to fully cooperate.
In a ruling on Tuesday, the judges further unanimously endorsed the prosecution’s revised request that Attorney-General Githu Muigai had contested during the status conference on July 9.
The AG seems to have lost his argument, as the Trial Chamber V (B) ruled that the prosecution’s request was right within the provisions of the Rome Statute of cooperation.
. . . .
The judges further directed the prosecution to “pursue all possible means to get Mr Kenyatta’s telephone records.
. . . .
Of the items that Ms Bensouda had requested she was only able to obtain the details of four the vehicles Mr Kenyatta owned or regularly used between November 1, 2007 and April 1, 2008. These were obtained with the consent of the accused.
In fact, Lands secretary Charity Ngilu, in a letter that was read to the court, said that “doing the best with the resources and time available to us, we have not located any land, title or property registered under the name of Uhuru Muigai Kenyatta.”
The Chamber also trashed arguments by the AG that the “work of prosecution investigators was being outsourced to the Kenyan government”. The judges, Kuniko Ozaki, Geoffrey Henderson and Robert Fremr, also validated the extensive requests by ICC prosecutors.
“It is a reasonable investigative premise that an accused with access to substantial resources may choose to act through various intermediary entities, as this would in particular, reduce the traceability of transactions intended to further a criminal purpose,” they said.
Githu had dismissed the request by Prosecution Chief Fatou Bensouda as irrelevant to the charges and too broad. The wide-ranging requests, which were made public for the first time late Tuesday seeks disclosure of the President’s records for about three years beginning June 1, 2007 to December 15, 2010.
“Investigations inquiries may not be confined merely to the immediate period of the violence,” the judges ruled. “In the context of certain records, a longer time period may also be justified for comparison purposes where pattern of activity may be significant in revealing unusual communication or transactions.”
This is the second time the ICC Judges are asking the Kenyan authorities to use compulsion to comply with its cooperation obligations to the court. The judges have threatened to refer Kenya to the Assembly of State Parties if it declines to disclose the records.
Already, a separate chamber has issued orders to the govern- ment to compel nine witnesses to testify against Deputy President William Ruto and his co-accused, journalist Joshua Sang. Uhuru’s trial is set to begin on October 7.
. . . .
If you are in Washington for the Africa Summit or otherwise on August 7 you can have dinner with H.E. Kenyatta at the Grand Hyatt from 7-9pm, sponsored by the Corporate Council on Africa, for $200 if you are not a member of the Council, or $100 if your are. Members (only) may wish to join H.E. Teodoro Obiang of Equitorial Guinea, starting at 6pm that night at the St. Regis. Perhaps with a good driver you can catch both. To register follow the links here; the Council is also hosting several less controversial events surrounding the Summit.
Sir Mohinder Dhillon, renowned Kenyan photographer, photojournalist and filmmaker shared this new essay which he also submitted to the ICC judges:
“GADDAFI AND MUSEVENI”
African Unity leading Africa towards disaster.
I’d like to challenge the AU to tell me which tribunal or judiciary in Africa will ever convict a sitting Head of State. This attempt to renege on a commitment to the ICC is nothing more than a sinister plot by Africa’s dictators to save themselves from any kind of accountability. It was initiated by the late Colonel Gaddafi, who bailed the AU out of a financial crisis, thereby buying the loyalty of other African leaders whose necks were also on the line. To save himself from international justice, he wanted Africa out of the reach of the ICC. Shame on such leaders! Contrary to any suggestion of restoring national sovereignty, the aim of these people is for Africa to be out of the Rome Treaty so that they can continue with their evil intentions where money and power counts for everything and the ordinary African can rot.
Our memories in Africa are very short, particularly in the case of perpetrators of genocide, rape and murder. Those who support the AU line that accused Kenyans should be tried locally should remember that not so long ago Parliament and other local bodies preferred to hand over cases to ICC. Remember the slogan that was on the lips of all Kenyans: “Don’t be Vague, Ask for Hague”. Kenya was given 12 months to put their act together and they did not move an inch. Kenyan authorities were going to investigate several thousand of other perpetrators but none was investigated due to lack political will despite some of perpetrators were recognizable carrying out crimes against humanity. AU is becoming laughing stock in promoting impunity.
The early history of Kenya’s ICC cases seems already to have been forgotten. After the post-election violence in 2008, the Peace Accord appointed the Waki Commission which produced 529 pages report on 16 July 2009 along with 6 boxes of documents and supporting material. A sealed envelope containing names of those considered most responsible for the violence was given to Kofi Annan as mediator. Kenyan Government tried for one year to establish a local tribunal but parliament blocked this, leading to the involvement of the International Criminal Court. The ICC Prosecutor, Luis Moreno Ocampo opened the envelope, inspected its contents and re-sealed it, before proceeding at Kenya Government request to carry out investigations and develop the resulting cases for ICC.
Kenya must smell the rat behind the intentions of our neighbours in Ethiopia, Uganda and Sudan, who are guilty of gross human rights violations in their own countries. Most recently, these include muzzling the media and arresting journalists and civil rights workers, but there is a long track record of crimes against humanity in each country. The AU has failed miserably to bring the perpetrators to book, as have the local judicial systems.
Until fifteen years ago, I filmed all the OAU meetings since its inception in 1963. For most of that time, the fight against apartheid in South Africa was the only factor that held this organisation together – otherwise I’m sure it would have disintegrated. It is a matter of record that crimes against humanity on the rest of the continent have far outweighed the evils of apartheid both in terms of scale and sheer lack of accountability. Why the double standard?
It is abundantly clear that most of Africa’s leaders are more concerned with protecting themselves than they are with securing justice for ordinary people. Although we in Kenya have made enormous strides in securing personal freedoms over the last twenty years, I am deeply concerned about the negative influence of our dictatorial neighbours in Uganda, Sudan and Ethiopia, where media houses are being closed down for flimsy reasons, where opposition is not tolerated and large numbers journalists and activists languish in dungeons without being charged. Kenyan genocide victims need closure just like the victims of Charles Taylor in Liberia, where the ICC was applauded for a job well done. There can never be adequate compensation for loss of life, limbs or dignity but at least some measure of justice was served.
Members of Kenya’s Government are shouting empty slogans about protecting their sovereign rights, in complete contradiction of their earlier position. I trust that the Kenyan people can see for themselves the total insincerity of those who are driven by nothing more than fear for themselves, and total disregard for the victims of violence. . . .
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.”
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.