Tag Archives: International Criminal Court

A circle not an arc: Ruto and Biden re-enact Kenyan-American history with a reprise of the Kibaki-Bush State Dinner of 2003

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Kenya 2007 PEV Make Peace Stop Violence

Before the exposure of the Anglo Leasing security sector corruption and other scandals Mwai Kibaki was in quite good books with the Bush Administration in Washington.

Kibaki’s 2002 election victory could be seen at the time as a feather in the cap for Bush’s “freedom agenda” in Africa. Kibaki was a core establishment insider who had served for 10 years as Daniel arap Moi’s vice president during Cold War era single party KANU rule, but had been democratically elected as titular head of a broad “opposition” coalition after the Bush Administration squeezed Moi to honor term limits and allow succession after 24 years and Moi chose his predecessor’s son Uhuru as his intended successor over more senior KANU leaders. (The best of both worlds for us Americans from a strictly diplomatic/foreign relations standpoint.)

Kibaki was used to dealing with the American government going back at least as far as arms purchases during the Gerald Ford Administration with Henry Kissinger as Secretary of State.

A lot has happened since October 2003, but not so much of it has been in Kenya. The biggest single change in Kenya has been population growth (with relatively flat human development). No big fluctuations on corruption or security, etc. and some worsening of an already challenging climate.

Ruto is another first term Kenyan president in very good books in Washington. An establishment protege of Daniel arap Moi who is seen as having had an oppositionist wrinkle to his 2022 election as President as the sitting incumbent Vice President by the fact that the outgoing incumbent President, his erstwhile running mate, Uhuru Kenyatta (also an American favorite while President and close to important Americans before taking office) tried to throw him over for his new “handshake” partner Raila Odinga.

Now, Ruto has a handshake deal of his own to back Odinga for the AU Commission chair as an alternative to domestic Kenyan opposition leadership.

The one big event in Kenya between 2003 and 2024 was Kibaki’s stolen 2007 re-election and the ensuing murder and mayhem as Kenya went “to the brink of civil war”. But as they say, “it’s been a minute”.

And since both the election fraud and the Post Election Violence successfully achieved their objectives it’s hard to find time to remember who was killing whom after so many years.

Externally, the current round of war in Somalia started a little more than two years after Kibaki’s 2003 State Dinner. The Second Kibaki Administration itself invaded Somalia in 2010 and 14 years later the beat goes on. And diplomatically we need Nairobi as a place from which to address any saving of Darfur and democratizing or at least stabilizing Southern/South Sudan as we did back in 2003. A new bonus is the chance to pay to get some of Kenya’s police force out of the country for awhile while also putting African boots on Haitian ground.

I guess the one word that I would choose to fit the Ruto-Biden State Dinner is “predictable”.

See “Disillusion grows in Kenya as Biden hosts Ruto for a historic state visit” in Semafor.

Book bitings: I read Ahmed Isaack Hassan’s memoir from his time at Kenya’s IIEC and IEBC and promised to engage.

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I will do a series of posts here to accompany my agreement to engage with former Chairman Hassan after reading his memoir Referee of a Dirty Ugly Game: In the Theatre of Kenya’s Elections — an Insider’s Account. This is an introduction.

I learned a lot about the Chairman’s personal background, his family, his personal and professional networks, in particular involving his previous political service in unsuccessful constitutional reform endeavors in Mwai Kibaki’s first term, his law practice and work for the UN on Somalia. I learned his personal opinions about several politicians, and many actors in various positions in the Kenyan government and in the Kenyan social and business establishment.

I learned a lot about Ahmed Isaack Hassan, how he sees himself and wants to be seen.

Certainly Hassan has been presented by some who were involved with him in running, presenting and defending the 2013 election as a hero for getting through a process in which power was passed from Kibaki to Kenyatta and Ruto without Kenya “burning”. It is in this context a memoir of this sort fits.

To the extent that this was what Hassan was appointed to do then he did deliver and this is his chance to box his critics. Undoubtedly he was put “through the wringer” to an extreme degree and treated badly in various respects as so many people trying to fulfill positions of public trust are in Kenya and one has to have empathy for the impossible position. Thank God he wasn’t murdered like IT Director Chris Msando from the successor IEBC in 2017.

Unfortunately I did not learn as much as I hoped to about the questions that I raised in this blog and elsewhere about the specifics of the 2013 elections.

I learned that he had and has dismissive and negative opinions of organized civil society generally and people that I worked with to some extent and have liked and admired but I am not very clear why for the most part. Part of it may be that his deference as an insider himself to Kibaki and his establishment executive branch apparatus leads him to have little empathy for a role for outsiders. In particular he evinces no real concern for fraud in the 2007 presidential tally and no moral qualms – as opposed to concerns of international relations – implicated by the question of the participation of candidates in 2013 who were involved in the 2007-08 Post Election Violence.

In particular, the heavily redacted contract materials for IFES from the initial responses to my Freedom of Information Act requests several years ago were much more informative regarding some issues involved in the mechanics of the election and point the way to other sources.

This is the kind of thing that I would be grateful to engage on with the former Chairman.

Of course, ultimately there is a “glass half full or half empty” problem about the 2013 election that will not be fully reconcilable among Kenyans about their own democracy with their own perspectives and interests. On the other hand, for me as an outsider without a “dog in the hunt” directly it seems unequivocal that the glass is partly full of liquid and partly full of air and it is simply a matter of fact to identify what is what even though the significance and value derived from the facts will be a matter of individual judgment for Kenyans.

Sometimes people just have different values and priorities. But maybe 10 years after the fact there is more room for discourse and persuasion than there was in the heat of the struggle.

TO BE CONTINUED. . . .

In light of Kenya’s latest “handshake” here are my unpublished thoughts from the last one: “Is the BBI Report more about a legacy for Raila (and Jaramogi) in the context of the Kenyattas’ domination of power?”

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[In light of the latest “Handshake” through which Kenyan President Ruto is supporting his erstwhile election rival Raila Odinga for Chairman of the African Union Commission there might be value in the historical context from this is previously unpublished post from December 2019 on the release of the Building Bridges Initiative report as an outcome of the March 2018 Uhuru-Raila “handshake”]

Old Party Office in Kibera

I have just finished finally reading Jaramogi Odinga’s Not Yet Uhuru. Months ago I had gotten started, got pulled away and came back to finish after the BBI report.

To understand how the BBI Report came to be full of small commonplace good ideas but so fundamentally “preservationist” of the basic order of things, perhaps we should see it as facing back rather than forward.

For the Kenyattas, in light of the selection of Jomo as the first leader, his success in consolidating power and gathering and brokering resources for the rest of his life, and the ultimate handoff through Moi to Uhuru following the potentially disruptive threat of the post PEV 2008 National Accord, the BBI Report offers the elevation of a retroactive “national ethos” as valedictory icing of the cake.

Three things imposed risk in the National Accord if you were the Kenyattas, in order of immediacy and gravity: 1) the risk of punishment of Uhuru under the agreement to pursue justice for conduct during the Post Election Violence, a risk shared with many others including Raila; 2) the risk of claims from prior conduct under the Truth Justice and Reconciliation Commission, in particular claims to disgorge assets or participate in land reform of some type; 3) the risk of dilution of power in the presidency creating general long term political risk.

The Supreme Court victory avoiding a runoff in the March 2013 election of the Uhuruto ticket terminated the first and second risks.

The third risk, unlike the first two, has involved a small measure of compromise and this is where Raila has delivered something lasting for Kenyans as a whole including those who have never voted for him.

The reform constitution of 2010 is a product of much work and struggle by many, not always in tandem, but would not exist without Raila’s role as the most popular opposition leader of the era. At the end of the day the unique form of devolution as it has come out of the 2010 constitution and its early evolution has created some real opportunity for governance separate from the power of State House.

On balance devolution provided a limited form of the majimbo that KADU sought before merging into KANU in the immediate post-independence, which KANU and Jaramogi originally saw as representing a collusive deal by some regional leaders and settlers to hold back from full liberation, but could also be seen as holding out from the national pot that was to ultimately be looted once power was consolidated by Jomo.

The office and role of Prime Minister under the National Accord in 2008-13 which gave Raila some poorly defined but not completely insubstantial power, on the other hand, “went away” behind the scenes at a Naivasha resort in 2010 as I have written about previously. It was the Prime Minister’s right of “consultation” that put previous opposition intellectual activist and leader Willy Mutunga on the bench as the first Chief Justice in return for withdrawing objection to a “usual suspect” to replace Amos Wako as Attorney General.

For Raila, his family and close supporters, with these accomplishments under their belts, the Building Bridges Initiative offers a seat in the shade under the tent while eating their slices of cake without the precariousness associated with two generations of being in opposition with no certainty of more than contingent freedom from detention, while going back in time to attend to a bit of the psychology at least of what Jaramogi was getting at in the 1950s and 60s.

Finally peace in the valley, even if the valley is quite small and the plains, hills and lakesides are full of millions of other Kenyans who were not around at the liberation. Those will have to find peace in their own way but what is new about that?

In the concluding part of his book, Jaramogi wrote, ” We are struggling to prevent Kenyans in black skins with vested interests from ruling as successors to the administrators of colonial days.” Obviously that struggle was unsuccessful.

Is that a good thing or a bad thing? It depends on where you sit and what your interests are. If you are one of or close to the successors of the prior administrators it is great and if you are not you may still have the satisfaction of looking around at statist Tanzania, tribal Somalia and revolutionary South Sudan and say that things could be worse. If you are in the Foreign and Commonwealth Office it is hard to argue with it on the basis of the interests you represent. If you are a diplomatic or commercial agent of the post-Tiananmen Chinese Communist Party at the very least it is the most convenient and compatible arrangement.

Regardless, it doesn’t do anyone any substantive good to simply pretend that the outcome was other than it was.

As for the younger generation and others who would wish for more and feel let down, let me reiterate that the honest recognition of where you are is not an impediment to improvement. No, the BBI Report in itself does not change much big, but why would you have ever thought it would?

The reality is that Uhuru was not going to have a level playing field for his and Ruto’s re-election in 2017 and why would he? Who was going to seriously insist and enforce the obligation to be “free and fair”. The Supreme Court had the courage to throw out the presidential vote because of the manifest misdoings in the administration of the KIEMS system, but Uhuru had no need to negotiate on the rerun and since there was never any proof brought forth by Raila that he “won” on August 8, 2017 had the tally not been maladministered he ended up being more rather than less on the defensive with the external democracies who were the only potential source of real leverage.

Raila is not a revolutionary general as opposed to a politician. He has a record as both a deal maker and a serious half-reformist. As opposed to who else in the political class? Arguably he has saved more space under the Uhuruto/Jubilee post-ICC dispensation than anyone could have expected.

If you are Kikuyu or Kalenjin especially and you wish for more change you might have voted for the opposition in 2013 instead of going with Uhuruto on tribal affinity and justifying it on the notion that things would improve because they were younger and bought a slicker more “youthful” seeming message. And since 2017 was part of the package in 2013, at the very least without a full accounting of the failed technology purchases which the Supreme Court order to be investigated but were not, the real question is what are you going to do now with time running to create the environment to have an election you can have trust in and good choices in 2022?

Uhuru and Raila competed for Ruto’s hand as Deputy in 2012 – it would have been rational for Western diplomatic actors to support a Ruto-Uhuru wedding to inoculate against the type of PEV used in 1992, 1997 and 2007-08.

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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.

UhuruRuto Kenya 2013 billboard Nairobi

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.

 

Kenya’s election was very close – would Raila have won with Ngilu instead of Karua as running mate?

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Raila Odinga Kenya president campaign

The closeness of the election is somewhat obscured now by the “winner take all” nature of Kenya politics and the quick consolidation of power by Ruto, but it really was very tight under any view. No disrespect to Martha Karua intended because her choice did help revitalize Raila’s campaign when he had persistently trailed in the polls throughout and then moved ahead when she was tapped.

Nonetheless, all politics in Kenya is local/tribal and she was undoubtedly picked in part to try to offset Raila’s weakness versus Ruto in the core Kikuyu old Central Province, as well as a play for “good governance” support from the “international community” and civil society (which had adopted Karua for a variety of reasons in recent years in spite of her understood role as a Kibaki Kikuyu hardliner opposed to the peace deal and power sharing in the 2007-08 ECK and PEV crisis).

At the end of the day, I think Karua was respected but not highly popular, whereas Ngilu was less respected internationally, and perhaps among some parts of Kenya’s more intellectual class, but more popular as a politician.

One thing that I am guessing that happened is that Raila overestimated the practical value of going with a “Good Government” choice in terms of support from Washington and London, and otherwise from “the Western donors”, just as he overestimated the transferability of the support that Kenyatta had in those capitals to him. I think he just may have been behind the times on this: there were years when Ruto or a candidate with his profile would have drawn active criticism internationally for corruption but 2022 was just not such a year for a variety of reasons. Likewise people in Washington that considered Ruto “dangerous” as late as a couple of years ago because of his role in the PEV seem to have gotten over it once they saw him as the long-established frontrunner in the polls and BBI not catching on. I think many were unsure whether Kenyatta was really going to follow through on supporting Raila which made it that much easier to rationalize a Ruto presidency.

“On the ground” among Kenyan voters, Raila could not pull off running a traditional opposition anti-corruption oriented campaign after several years of the handshake and clearly counting on Kenyatta’s support. Too much cognitive dissonance, especially after getting beat in the Courts on a BBI that got larded up and bogged down to the point of becoming notably unpopular in its own right. On that front, the Karua pick seems to have proven too late and too out of step with the messaging from Raila’s other coalition heavyweights.

Given that he was behind in the polls and needed a spark, I do think choosing a woman made sense, but Ngilu as a more traditional Kenyan politician who was a current office holder and a long established vote getter from a “swing” region and ethnicity might have fit the bill quite a bit better. A more obvious choice to match up versus Mudavadi and Wetagula on Ruto’s side and a more congruous fit with the rest the established heavyweights on the Azimio team.

In 2007-08, I only met Moi and Ruto once each. Loose impressions:

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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.)

UhuruRuto Kenya 2013 billboard Nairobi

High risk of political violence around Kenya’s election? Of course, because violence worked well in 2007 and was ratified in 2013 and since.

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Kenya 2007 PEV Make Peace Stop Violence

The value of violence to Kenya’s political competitors will be obvious to any of you who have read this blog over these years now since 2009.

Instrumental state violence with militia support was crucial to enforcing the 2007 “re-election” Kibaki assigned himself through control over the Electoral Commission of Kenya; instrumental violence on behalf of leaders in opposition was crucial to obtaining and sustaining international pressure on Kibaki to share a portion of power with the opposition after his “re-election” when the key hardliners in Kabaki’s political camp wanted to stand firm.

At the same time, the egregiousness of the worst of the violence in the Rift Valley may have overshot the mark and undercut possible initial international support for an examination of the election fraud witnessed by diplomats at the ECK and the bribery identified by donor nations before the vote. (See my War for History series for the details of what happened.)

So even with total impunity and immediate and future political gains to be had, burning people alive in the church in Kiambaa in particular, was arguably counterproductive in the short term from a strictly amoral perspective. But that is just my best sense of it and others closer to the situation may disagree.

Even five years ago, in 2017, the threat of violence was on the table: “Election Violence threat in Kenya–my thoughts on NDI’s new warning“.

Now, after the two UhuRuto elections, with the “coalition of the killing” in 2013 and the combined Jubilee Party re-election in 2017, we are faced with another contest where Uhuru and Ruto are on opposite sides, which has only happened once before, in that 2007 fight.  In 1992, 1997 (both marked by organized violence) and 2002 they were together just as they have been since early in Kibaki’s second administration until falling out in this race (When did Uhuru and Ruto fight? Why is the “Uhuruto” alliance allegedly so surprising?)

What will they decide on their terms of engagement this year?

UhuruRuto Kenya 2013 billboard Nairobi

 

 

 

Biding time on democracy in Kenya and Uganda

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Kenya election 2007 banner for Kibaki Nakuru
Ugandan MP and presidential candidate Bobi Wine will speak at the McCain Institute’s virtual 2021 Sedona Forum. The State Department has issued a statement criticizing the January Ugandan election and announcing that it is issuing visa restrictions on unnamed Ugandan officials responsible for undermining the democratic process

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Three years after the resignations of a majority of Kenya’s election commissioners, President Uhuru Kenyatta has formally taken notice of the four vacancies and gazetted the process through which he will appoint replacements.

Why now? While the President has not explained specifically to my knowledge, his ruling Jubilee Party is seeking to have the Independent Boundaries and Electoral Commission conduct a constitutional referendum within weeks to approve amendments derived from the “Building Bridges Initiative”. (A version of a proposal to amend the constitution was passed by most of Kenya’s county assemblies positioned as a citizen initiative. It is now before Parliament where there is internal debate among proponents as to whether to approve it for referendum as is, or to allow amendments to what has already been passed by the counties, which would raise additional legal questions. Challenges to the legality of the process to date are pending in the courts already.)

Although Kenya’s courts have allowed the IEBC to continue to conduct by-elections and all its other business with only three of seven commission seats filled since the most recent resignations in April 2018 there seems to be an expectation that appointing new commissioners is desirable ahead of the referendum and the general election approaching in August 2022. Legislation signed into law last year changes the appointment powers for choosing the committee that will interview applicants for the IEBC slots and winnow choices for the President. Four of the seven screening committee members will now named by the Parliamentary Service Commission, tipping the balance in favor of the current office holders.

Remember that U.S. president Joe Biden has “been around”, with far more diplomatic experience than any of his four most recent predecessors in the White House. In 2010 as Vice President he met with Kenyan Speaker Kenneth Marende, along with President Kibaki and Prime Minister Odinga, ahead of that year’s constitutional referendum during the period in which Kenya was deciding between justice-oriented remedies and impunity for the 2007-08 Post-Election Violence.

This is what I wrote at the time, “Marende praised by U.N. Commissioner on Human Rights, meeting with Biden; South Mugirango by-election this week”:

Kenyan Speaker of Parliament Kenneth Marende seems to be getting an increased international profile. Navanethem Pillay, UN Commissioner for Human Rights, called on Marende on Monday, expressing concern regarding progress on prosecution of suspects for post election violence. According to the Standard she singled out Marende for praise, “saying he had made immense contribution in stabilising the country through some historic rulings and the manner he handled issues in Parliament”.

U.S. Vice President Biden will call on Marende Tuesday as well, along with his meeting with President Kibaki and Prime Minister Odinga.

Interestingly, Marende says that Parliament “would easily pass” legislation to provide for a “local tribunal” to try election violence cases under Kenyan criminal law “if the ICC acted swiftly by taking away key perpetrators of the violence”.

Biden will leave Thursday morning, the day of the South Mugirango by-election to fill the seat vacated by a successful election petition against Omingo Magara, originally of ODM. As it stands the race is hot, with Raila Odinga campaigning for the substitute ODM nominee, Ibrahim Ochoi, William Ruto campaigning for Magara running as a PDP nominee and heavyweights in PNU affiliates split among Magara and other candidates.

 

As Kenya Turns: Kalenjin radio features return of former ICC-indictee Sang at Kenyatta and Ruto-owned station

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Ruto Hires Former ICC Co-Suspect Sang For His Kalenjin Radio Station, Kenyan Report, June 5, 2019

“Former Kass FM presenter Joshua Sang is set to make a comeback to the airwaves after landing a job at Emoo FM, a station owned by Mediamax Network Ltd.

Even though both the Kenyatta family and Ruto hold substantial stakes in the DMS Place-headquartered Mediamax Network – sources claim Ruto is the hitherto biggest shareholder even as he aims to consolidate media support around his 2022 ambitions.”

Could “corruption” play the role in Kenya’s 2022 election that “crimes against humanity” played in 2013?

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Instead of “the coalition of the killing” a “coalition of the stealing”?

Let us review the 2013 campaign, the next presidential election campaign after Mwai Kibaki and Raila Odinga shook hands on February 28, 2008 to end the 2007 election crisis and the related violence.

In the later part of the lead up to that 2013 “open” presidential campaign, with Mwai Kibaki completing has second and final term, the political dynamics of how to treat the 2007-08 murder and mayhem of the Post Election Violence were dramatically turned.

The 2007-08 election fraud and Post Election Violence had triggered from the February 28 “peace agreement” the compilation of a coalition administration for Kibaki’s second term (the so-called “Government of National Unity”) with Raila Odinga getting a temporary Prime Minister post with a contested but limited role, and Musalia Mudavidi and Uhuru Kenyatta representing the ruling PNU and opposition ODM parties as Deputy PMs. William Ruto, the Kalenjin member of the ODM “Pentagon” got the Agriculture Ministry, an important post for his Rift Vally region.

The 2007-08 debacle also generated on the American side focus on a “reform agenda” that included a revival of U.S. attention to corruption issues (we had taken umbrage at the Anglo Leasing scandal starting in 2004, and the Arturo/Armenian Brothers, the Standard raid and such embarrassments back before the war kicked up in Somalia with the Ethiopians in December 2006) and culminated in support for a revival of the constitutional reform process including regional “devolution”, a persistent issue throughout Kenyan political history. A basic framework for the “reform agenda” efforts was the National Accord and Reconciliation Act that was passed by Kenya’s new ODM-majority parliament in early 2008 to effectuate the post-election settlement. Critical parts of the deal have ultimately been repudiated by Kenya’s current government, most conspicuously the Truth, Justice and Reconciliation Commission process, and some parts were sadly constricted within the first months of implementation (In particular, investigation of the presidential election by the so-called “Kreigler Commission” was truncated in spite of intelligence revealing bribery at the ECK and secret “visa bans” by the U.S. against election commissioners revealed by published leaks in 2010).

Most importantly, no one of any stature or clout was ever prosecuted by Kenyan authorities for the 1000+ deaths and displacement of 600,000, and the the rape and arson and the rest. Put in proper perspective from where things stood on February 28, 2008, the end result has been a nightmare of impunity really.

In hindsight maybe the “real deal” on February 28 was always “everybody gets away with everything” but that was very much not what we were told and led to believe at that time and for some years after, by either side in Kenya or by the donor diplomats. When Parliament voted to duck its responsibilities to try suspects in the Kenyan court system and defer to the International Criminal Court, rallying with the slogan “don’t be vague, go to The Hague,” the presented spin was that the Government would actually substantively cooperate with ICC prosecutions. In hindsight that probably did not merit any credibility in the first place.

By the time all but two of the cases against the suspects identified by the Office of the Prosecutor as “most responsible” had fallen by the wayside, the two left were the longtime KANU mates, Kenyatta and Ruto. In the run up to the ill fated 2007 election, they were KANU leaders in opposition together. KANU had been part of the “No” or “Orange” campaign on Kibaki’s 2005 constitutional referendum and both were seen as potential opposition presidential candidates by 2007. When Uhuru as KANU Party leader and Leader of the Official Opposition took the unprecedented step of “crossing” to support Kibaki’s re-election (along with KANU’s Godfather, “retired” President Moi) and taking the party with him, Ruto broke to stay in opposition and join ODM to contest the nomination, ending up in “the Pentagon” with the others.

In the common unique predicament of facing ICC charges from the Post Election Violence, as longtime partners and as claimants to Kikuyu and Kalenjin leadership– and thus representing the most powerful voting groups who had always held the presidency and most recently clashed over it–Kenyatta and Ruto were an obvious pair for 2013. See “When did Uhuru and Ruto fight and why is their partnership allegedly so surprising?”.

With Ruto and Kenyatta as “victims” Prime Minister Raila Odinga and Vice President Kalonzo Musyoka as the opposition CORD campaign were back-footed and never found a consistent voice to address the challenge.

Kalonzo was arguably the major politician least tainted by suspicion of involvement with the underlying violence but was compromised by allowing himself to be used as its international diplomatic apologist starting even in Washington by early February 2008 as Kibaki’s new second term Vice President while the killing continued (see “‘The War for History’ part nine: from FOIA, a new readout of Vice President Kalonzo Musyoka’s February 2008 meeting with John Negroponte“) and continuing on with seeking support at the U.N. Security Council to stop the ICC process as well as in countries around the African Union. Raila himself never seemed to be able to settle on a clear or consistent position or message on prosecution of the violence either as a matter of law and policy, or morally.

Strictly from a stability standpoint the Western donors, especially those who helped support negotiation of an end to the violence in 2008, a Kikuyu/Kalenjin pairing was obviously the least risk option, which presumably would mean Ruto as URP leader and Kenyatta for TNA after the tragic helicopter crash that killed TNA Interior Minister George Saitoti.

Under the circumstances the flawed 2013 election itself was a happy success for the donors because “Kenya didn’t burn” and the opposition did not further resist after the controversial court decision. It does not seem credible to argue that the IEBC’s Count was anywhere near complete enough in the absence of the Results Transmission System which was said to have failed but was never going to work to warrant a 50.07% margin for the candidates favored by the incumbent president over the opposition, but it was quite plausible to argue that the Uhuruto ticket did have a plurality and it was safer not to have a runoff since having the election over was the most important thing. (See “Choosing Peace Over Democracy“) It might have been a bit awkward at first to have Kenya’s leaders charged with the political bloodletting but it did not seriously impede relationships and eventually, sure enough, the cases “went away” and the circle of impunity was unbroken.

Given this history, knowing how Kenyans and Westerners handled pending charges for the Post Election Violence the last time an incumbent Kenyan president was “retiring” due to term limits, what do you think the impact of corruption charges might be on the 2022 race? Another coalition of “targets”, more mass prayer rallies for the victim/candidates who might be guilty but should not be “singled out” when they are representatives and champions of their tribes? And again, from a risk mitigation standpoint, surely it would be safer for the donors to let the most dangerous people have their way?