Tag Archives: International Criminal Court

What does Kenya’s High Court ruling on the civil society challenge to Uhuru and Ruto eligibility for election say about the state of Kenya’s judiciary?

Posted on by
2

The Nairobi media reporting is a bit garbled but the gist of things is that the Kenyan High Court (as opposed to the Court of Appeal or the Supreme Court) has dismissed a petition filed some months ago by civil society groups, including significantly the Kenyan Chapter of the International Commission of Jurists, challenging the eligibility of many of the candidates for President of Kenya on the basis of the “integrity” provisions of the new Kenyan Constitution.

Almost 13 months ago I posted that it was time for Kenya’s judicial system to answer the question posed regarding the application of these constitutional provisions to the candidacy of those facing confirmed charges from the International Criminal Court.  Unfortunately, even though the election has ended up being set for a delayed date, the Kenyan court system has still managed to let the clock seemingly run out without reaching any clarity or finality, such that the election is expected to proceed with the “Uhuruto” ticket on the ballot.

Without having a copy of an opinion yet, from the media reports, the High Court ruled that it did not have jurisdiction over the challenge because the constitution vests exclusive jurisdiction in the Supreme Court over challenges involving the nomination and election to the presidency and that further the jurisdiction of the Kenyan courts and ICC was concurrent and with the ICC case proceeding only the ICC could bar the indictees from running for office.

As an American rather than Kenyan lawyer, and having not read the opinion, I don’t want to go too far into the details here, but I would note that (1) Ruto as opposed to Uhuru is no longer running for president, so the practical question now for his eligibility is distinguishable; (2) the High Court has original jurisdiction to interpret the provisions of the constitution, which seems to me to clearly be the issue here–as opposed to a more ordinary nomination or election challenge which would seem to me to be a more plain way to interpret the various constitutional provisions as a whole.

Here is a long quote from the Daily Nation story “Jubilee, Cord plaud ruling on eligibility case”:

Mr Odinga on his part said he respected the ruling saying that the court had held that in matters relating to the presidential election, the Supreme Court had ‘exclusive and original jurisdiction.’

“I have repeatedly said that my main competitor should have the opportunity to face me in a free and fair election whose outcome is determined by the people of Kenya,” said Mr. Odinga upon hearing of the Court’s decision.

But Restore and Build Kenya (RBK) presidential candidate Prof James Ole Kiyiapi accused the judges of failing to give Kenyans directions on matters of integrity.

“By declaring that they lack jurisdiction, Kenyan courts have failed to give the country direction on matters of integrity as outlined in chapter six of the constitution,” he stated.

The five High court judges – Mbogholi Msagha, Luka Kimaru, George Kimondo, Pauline Nyamweya and Hellen Omondi – dismissed a petition filed by civil society groups challenging Mr Kenyatta and Mr Ruto;s suitability to run for the presidency and deputy presidency as they face serious crimes at the International Criminal Court (ICC).

The Judges ruled that despite the serious nature of the crimes facing Mr Kenyatta and Mr Ruto at the ICC, they are still presumed innocent until the contrary happens.

“It is common knowledge the two have been indicted but since Kenyan courts and the ICC are of concurrent jurisdiction, we cannot adjudicate over the same matter. Only the ICC can bar them to run for public office,” ruled the judges.

They ruled that the High Court had no jurisdiction to hear any petition relating to presidential candidates’ nomination.

So I tend to agree with Prof. Ole Kiyiapi that the High Court has ducked the issue and left a real lack of clarity as to the meaning of the constitution.  The problem is appeals and further proceedings are now unlikely to have time to be resolved before March 4.

Related articles

Kenya’s National Council of Churches (NCCK) sticks up for EU envoys; TJRC slammed; and an optimistic view for March 4

Posted on by
Reply

The Star: “NCCK Warns Uhuru, Ruto over the Hague”:

“It will not be easy running a government while away as compared to from State House, but we ask Kenyans to exercise their discretion and vote as they want,” said NCCK Secretary General Rev Canon Peter Karanja yesterday after a two-day meeting at the Jumuia Conference and Retreat Centre in Limuru.

The High Court is due to rule tomorrow if Uhuru and Ruto are eligible to contest the presidency on grounds of integrity. “We ask for the law to be followed as we await the court ruling on Friday,” he said.

The press conference was attended by the NCCK chairperson Rev Canon Rosemary Mbogoh, deputy secretary Oliver Kisaka and Zion Harvest Mission Bishop Nicolas Oloo.

The council condemned the recent criticism of diplomats who stated last week that there will be “consequences” if Kenyans elect Uhuru and Ruto as president and deputy president.

“NCCK appreciates the interests of the foreign missions, European Union and African Union, because they helped us when the country went haywire and it is not fair to ridicule them,” he said.

The NCCK statement warned against tribal balkanization, called for more voter education by the IEBC, urged politicians to focus on issues, and asked President Kibaki to gazette the new National Land Commission.

CapitalFM: “KNHCR slams Truth Commission as Sham”.  The official Kenya National Human Rights Commission denounced the failure of the Truth and Reconciliation Commission established as part of the settlement following 2008’s post-election violence to produce and release a report ahead of the March 4 election.  The report was due by 2011.

Wycliffe Muga’s column in The Star this week, “Why There Will be No Violence,” explains his optimism:

. . . .

Actually, I am pretty sure that it won’t happen again. This election is going to be totally different from the 2007 one in three crucial respects:

First, we have an electoral body which only came into being through a process involving a broad consensus. Thus the IEBC, despite all its organisational weaknesses, is thus totally unlike the old ECK which President Kibaki openly stuffed with his cronies just before the election.

Then we have a new judiciary, the members of which have been subjected to public vetting, often of a very humiliating kind. And although there are those among us who still regard the Chief Justice Willy Mutunga as an ear-stud-wearing poseur, who has yet to prove his mettle, nonetheless no loser in any election can convincingly argue that “there is no point” in seeking justice from this judiciary.

Finally, we now have the ICC entrenched in our national life in a way which was inconceivable before the post-election violence came upon us. Those of us who knew anything of the ICC prior to this, tended to think that it was set up to try Serb militia chiefs; Congolese and Liberian warlords; and the likes of Joseph Kony.

Now we know better. And, more significantly, our top politicians know better. They know that the moment they send out any street gangs or private militias to do their dirty work, they have effectively supplied the ICC with the witnesses who will one day – from the safety of Europe – turn up in fine suits to offer evidence against them.

. . . .

Related articles

 

When did Ruto and Uhuru fight? And why is the “Uhuruto” alliance allegedly so surprising?

Posted on by
3

Today is the third anniversary of the “AfriCommons Blog”, so let me celebrate by being a bit direct.

I lived in Nairobi with my family during the last Kenya elections campaign and the duration of the post-election violence. I certainly saw both Uhuru and Ruto in Nairobi during the uncertain post election period, and they were on local television as well–serving in Parliament together and carrying out their functions as members of the political class. Never saw either with a police rifle, a panga or a can of petrol. No recollection of seeing either of them in the slums or other types of neighborhoods where most of the violence in Nairobi took place.

Rather, the ICC has accused them of being involved in the incitement, organization and funding side of the organized part of the post election violence or PEV.

I don’t recall ever seeing any indication that the two had any type of personal animosity between them or couldn’t get along between themselves. Could be, but not necessarily obvious from the context of funding militias and gangs in the hinterlands on opposite sides of a political tussle. In terms of the political debate it was Martha Karua that squared off with Ruto during the ECK “vote counting” at the KICC and the post-election negotiations.

When I moved to Kenya in June 2007, less than seven months before the elections, Uhuru and Ruto, along with Mudavadi, Raila and Kalonzo were in ODM-K (later to become ODM) and all were running against each other for the opposition presidential nomination through their mutual coalition. Uhuru was KANU leader and titular Leader of the Opposition in Parliament. They were all rivals, but all against Kibaki. Uhuru and Kalonzo split off the main ODM, with Kalonzo running as ODM-K nominee as a “third party” and Uhuru switching sides to Kibaki/PNU, presumably at least in part because he could not hope to get re-elected to his seat in Parliament in Central Province otherwise. (And maybe he was looking to 2012/13.)

If there was a question of anyone not getting along personally, it was more about Kalonzo and Raila than Uhuru and Ruto.

It just seems naive to me to be especially surprised that Uhuru and Ruto would hook back up–and most especially so when they are in a serious jam together with the ICC charges.

Did Uhuru oppose Moi because of Moi’s role in the related violence in the Rift Valley around the 1992 and 1997 elections? Seems to me he stayed in KANU and was anointed as Moi’s candidate for the succession in 2002. Perhaps if he did, as accused, get involved in using the Mungiki in post-election violence in Naivasha and elsewhere, could it have been for instrumental political reasons rather than some atavistic “tribalism”? Has Ruto ever supported a non-Kalenjin candidate before? (hint: Uhuru in 2002)

News on Uhuru’s public relations consultants

Posted on by
2

Former Tory PR advises Kenyan facing Hague trial, the Sunday Independent.

The Independent broke the story that Ed Staite, former advisor to the UK’s Chancellor of the Exchequer, has been part of a “team operating from offices in London and Nairobi are trying to neutralise criticism of Mr Kenyatta in the run-up to the general election in Kenya and his trial next year.”

After being indicted, he instructed BTP Advisers, where Mr Staite is an associate.

The British firm’s involvement with the case has not been revealed until now. BTP’s media campaign over the next three months will involve online monitoring, including on Twitter, and digging up information on opposition candidates, said a source. Mr Staite made his reputation while advising Mr Osborne, then Shadow Chancellor, and looking after Boris Johnson.

He was recently involved in controversy when reporters posing as representatives of a City fund secretly recorded him saying that they could “communicate their priorities” by funding a “policy group”. He later denied that this was to buy influence with Mr Osborne.

 

The Sunday Times reported in a story published April 1 this year:

 THE former press offficer of George Osborne has been secretly filmed telling foreign financiers how to shape Tory policies in exchange for cash.

Edward Staite suggested to undercover reporters, posing as wealth fund executives, that they should fund a Tory policy unit on issues they wanted to promote. His comments appear to undermine the Tories’ insistence that donors do not get privileged access and have zero influence over policy.

The reporters met Staite on February 8 after his services were recommended by Sarah Southern, a lobbyist selling access to David Cameron. They explained they wanted political connections to help them buy British government assets such as Royal Mail.

 

 

Related articles

Recent Kenya polling points to concern on voter registration, other issues

Posted on by
Reply

Most recently, a new Gallup poll indicates that most Kenyans who are identifying themselves as “registered voters” do not in fact have the required new voting cards.  This raises several concerns: a lack of “civic education” as to what is going to be required in order to vote and confusion as to who is eligible; a big job ahead to get voters registered for the upcoming election; questions about the reliability of the opinion polling in distinguishing “registered voters” from other respondents.  New Gallup release: “In Kenya: Most Registered Voters Lack Required Voting Card”.

The other significant development is continued campaign progress by Deputy Prime Minister Uhuru Kenyatta, indicted by the ICC on “crimes against humanity” charges and facing trial scheduled shortly after the first round of voting.  The latest Synovate poll, as others have for months, show Prime Minister Odinga with a significant plurality lead, but Kenyatta continues to significantly outpace any rivals in second place.  See Tom Maliti’s reporting at ICC Kenya Monitor: “Poll: Kenyatta Makes Biggest Gains in Kenya Presidential Race”.  Kenyatta is now shown as running ahead of Odinga in a runoff.  A few months ago, Odinga’s runoff standing looked difficult in some match-ups; his numbers have risen and then now fallen back.

The election is months away and it doesn’t make sense to get too excited about each new poll that comes out, but there are points of significance here.  For one thing the polls continue to show that it is very difficult for any of the less established or “newer” candidates to get traction nationwide in a crowded field, leaving the scions of Kenya’s founding fathers who have previously run nationally and been national figures for many years as the primary contestants seen as viable.  For another, while polls continue to show majority support for the ICC process, large numbers of Kenyans are simply not put off by the charges against Kenyatta, and the fact and nature of the charges themselves seem to work to some degree in his favor in establishing him as the dominant candidate from the Central Province/Mt. Kenya area and among his fellow Kikuyu.

Odinga, on the other hand, seems to be having some difficulty in generating new momentum.  He’s been “the man to beat” since the last election so anyone who wants to bust open the race has to target him. The ethnic coalition that Odinga put together through his “Pentagon” that allowed him to poll the most votes nationally in 2007 (according to the exit poll and accounting for misconduct at the ECK) has proven itself to be for the most part a one-off campaign vehicle, like the competing ethnic coalition in Kibaki’s PNU.  Odinga has limited power as Prime Minister but is hamstrung in running as an opposition/reformist candidate–always his milieu in the past–as a “principal” of the “Government of National Unity”.

In a one-on-one runoff, a hypothetical Kikuyu candidate with a strong ethnic base starts with a big advantage over a hypothetical Luo candidate with a strong ethnic base.  Aside from the fact that there are nearly twice as many Kikuyu as Luo, the usual “tribal arithmetic” adds up more quickly from there for the Kikuyu. But neither Kenyatta nor Odinga is in the least bit “hypothetical”–they are unique individuals with strongly identifiable and well know strengths and weaknesses. “Tribalism” will matter and be a part of the campaigns, but it is not the only important factor. With the election five months away, there are many, many deals to be made and many of those to be broken or reconfigured before we really see what the lay of the land is in the presidential race.

It is not a bit too early, however, for the United States and other Western nations who have been much involved with Kenya these last few years to make some decisions about policy in terms of the interaction between the Kenyan presidential race and the ICC process.    In the U.S., this may quickly fall in the lap of a new administration.

Related articles

Friday Uganda Event in Boston; Kenya reading

Posted on by
Reply

Friday event in Boston: “Kony and the Lord’s Resistance Army: a State Department Perspective” at the BU Center for African Studies, 3pm

Jason Lewis-Berry, the Lead Foreign Affairs Officer in the State Department’s Bureau of Conflict and Stabilization Operations who has also served as Field Representative for Lord’s Resistance Army issues in Central Africa, will deliver this lecture @ BU. A Q&A session will follow.

“Kenya’s New Constitution: Political Musical Chairs and Inertia Taint Implementation” from the Institute for Security Studies:

27 August 2012 marked the second anniversary of the promulgation of Kenya’s new constitution. Hailed by some as one of the most progressive constitutions in Africa because of its comprehensive and liberal bill of rights, the new charter has been facing implementation challenges with suggestions that sections of the legislature and executive are bent on influencing the process for political expedience.  .  .  .

For those preparing for the Kenyan election, I recommend Muthoni Wanyeki’s recent paper “The International Criminal Court cases in Kenya: origin and impact,” also published by the ISS.  Wycliffe Muga’s column in the Star concludes “we are heading for a truly divisive election”.

The U.S. Senate Malaria Working Group, headed by Sen. Chris Coon of Delaware (Senate Foreign Affairs Africa Subcommittee chairman) and my Sen. Roger Wicker of Mississippi announced this week expansion into the Senate Caucus on Malaria and Neglected Tropical Diseases.  Hopefully, the Senate will soon be taking up confirmation of the Administration’s nomination of the Chargé d’affaires Robert Godec as the new Ambassador.

Happy Saba Saba Day–and how is Kenya?

Posted on by
6

Today is the final “Saba Saba Day” in Kenya under the “Government of National Unity.” The presidential campaigns are in full swing and new political parties, alliances and temporary coalitions are announced and denounced weekly.

So how is Kenya?

To be positive, there are lots of important things right in Kenya (as always).

For one thing, there is energy in politics and some real hope that votes will be counted and thus that Kenyans will chose their leaders going forward under the new Constitution.  Of course it must be remembered that Kenyans were more hopeful in 2007.  An improvement politically is a lack of complacency or naiveté.

The economy in the aggregate continues to grow and attract increased foreign investment.  Over the last couple of years taking note of Africa as the last great investment frontier has gotten so commonplace as to be, finally, cliché.

Kenya has tremendous advantages in reference to serving international investors over most other Sub-Saharan African countries at the inception.  Aside from Indian Ocean coastline which makes Kenya a natural gateway for Asian trade, Kenya speaks global English and is home to Nairobi which was already well-established during the era of what I have called “the aid bubble” as the favored location for internationals.  Whatever happens in South Sudan, Sudan and Somalia in the next few years, a lot of the international support/involvement will come through and be “back officed” in Nairobi.  Kenya has been the key regional military ally of the United States throughout its history, while separately serving as “Americans’ favorite African country” in the popular imagination, and attracting a lion’s share of private tourism and aid/mission activity.  And of course there are close ties to Great Britain and British companies of long-standing and plenty of interchange with the rest of Europe.  Nairobi has been an attractive draw for white African businessmen, especially since the mid-90s, and has become more Continue reading →

ICC Proceedings–Kenya cases trial dates to be set before July 13; likely for soon after 2013 election

Posted on by
Reply

Tom Maliti’s report on Monday’s ICC proceedings in the ICC Kenya Monitor

Presiding Judge Kuniko Ozaki of Trial Chamber V announced the decision today after listening to the prosecution, defense, and victims’ lawyers make their submissions during a meeting to discuss a trial date and other preliminary matters ahead of hearings in the first Kenya case. Judge Ozaki said the trial chamber will issue its decision in writing before the court breaks for its summer recess, which starts on July 13.

The decision was in reference to the first Kenya case only as a similar meeting is set for Tuesday to discuss the details of the second Kenya case. However, the practice of the pre-trial, trial, and appeal chambers has been to issue simultaneously important decisions concerning both Kenya cases.

Read the whole report for interesting details about the respective positions of the parties and comments from the Court.

Related articles

Here we go again–checking in on Kenya’s presidential campaign

Posted on by
1

I appreciate your indulgence during an informal hiatus–I am transitioning to my new private law practice (and we have raccoons in the attic at my house, school is out, etc.). It has also been useful to step back a bit from posting to catch up on some long form reading and allow reflection on context and larger themes.

Zzzzzs

It strikes me that in Kenya we are once again seeing the campaign mode where there is big political news every day, but almost all of it is ephemeral and not really worth writing about separately from the daily news reports. In the bigger picture, there are indications of real uncertainty this time that were not as much present in the last campaign.

Last cycle the action was more clearly organized in two blocs with the early questions being (a) the ODM nomination and whether “the opposition” would stay together in ODM or fragment and (b) who would get the highest spot on Kibaki’s coattails through his choice of a party and otherwise how he would put his re-election campaign together.

It was not until well into September last time that Kibaki’s announced the formation of the “Party of National Unity” as a not quite defined hybrid of a party or a coalition of parties. By about that time, according to the later Congressional Research Service reports, Kibaki insiders acknowledged that he wouldn’t win the election. Nonetheless, what seemed to many outside his inner circle as lethargy, or even indecisiveness and lack of motivation, was likely “quiet confidence”. He controlled the Electoral Commission if he wanted to and as President was master of his own destiny.

At the time of the announcement of PNU as Kibaki’s vehicle in September the latest possible time for the elections was late December, with Kibaki having the option to dissolve Parliament early and have an early election. Compare to this season’s announcement by Deputy Prime Minister Uhuru Kenyatta of TNA, “The National Alliance”–there seems to be very little likelihood of a pre-December election and the IEBC has announced a set date of March 4, 2013. Reports have surfaced of discussions of further delay in recognition that the reach of the ambitions for a technologically advanced process may exceed the grasp of the IEBC as a new, internally divided and subsidiary player within Kenyan governance.

So Kenyatta, who is the only “establishment” candidate of who seriously contends with Odinga as the dominant “opposition” candidate in national polls in recent months, is not “laying back” as was Kibaki. In part this surely because he has “heel biting” from various other people from the core and periphery of the Kibaki camp, but I think it also derives from the same underlying underlying uncertainty that leaves some of these others with hopes of becoming themselves the anti-Odinga contender. Will some outside force remove Kenyatta from the race?

Intoxication from the ICC process is giving way to the reality of an “overhang hangover”–the ICC has been clear that it intends to proceed as its track record indicates, with “deliberate speed” during the campaign. It has only been a little more than fours years since the crimes against humanity took place in Kenya’s post election period, for heaven’s sake. From whence came the notion that the ICC process might be near finality before the next Kenyan election unless the result was a dismissal of all charges at an early stage? Nonetheless, there are other possibilities.

For instance, what will Mutunga do? Would he provoke a showdown between Kenya’s newly partially reformed judicial branch and the executive branch and the Kenyatta scion over the standards in the new constitution to qualify for election? And if so, who would win?

Perhaps the most deeply symbolic event in Kenyan politics since the August 2010 referendum on the new constitution was the invitation of Sudan’s al Bashir to the subsequent ceremonies without regard to Kenya’s obligations as an ICC member party. It was as if the “owners” we’re saying to the “reformers”: “you have your new law, just don’t read too much into it”. But maybe they won’t have the final word this time.

Toi Market-Nairobi

Related articles

Normally quiet American ambassador speaks out to condemn police repression amid rising ethnic/political tensions in Kenya

Posted on by
Reply

Having marked a year in the post this week, U.S. Ambassador Scott Gration has generally “kept his powder dry” in terms of availing himself of the Kenyan media to speak out on the Kenyan issues of the day and exhort better behavior from Kenyan politicians and officials.  This is a marked contrast from what we had been used to during the 2008-11 period.

Today, however, is different.  Ambassador Gration is in both the Saturday Nation and The Standard condemning the Kenyan Police for violently blocking a youth-oriented meeting in Limuru called to counter the recent gathering there to revive the old GEMA (Gikuyu, Embu, Meru Association) to foster “Mount Kenya” solidarity against the International Criminal Court on behalf of the suspects, among other apparently divisive purposes.

The U.S. message leads both stories.  From the Nation‘s “US condemns Kenya Police over anti-Gema meeting”:

The United States has condemned the use of force by police to block the Limuru 2B meeting as calls for the resignation of their boss Mathew Iteere over the incident intensified.

US Ambassador to Kenya Scott Gration said the police action undermined the basic democratic tenets in the country.

“It was a grim reminder of Kenya’s past,” said Mr Gration in a statement Saturday.

“Fear tactics and political intimidation should have no place in Kenya under the new Constitution for they can threaten the brighter future we all desire for all Kenyans.”

He said the whole world looked at Kenya with admiration after the passage of the new Constitution two years ago, which enshrined universal rights as freedom of speech and assembly.

This he said, laid the ground for a free and fair election.

While both stories note criticism of the police from figures on “both sides” of the Government of National Unity, the Nation includes a defense from Kenyan Police head Matthew Iteere who alleges that the meeting was being used as a front to organize for the Mungiki sect.  Of course the Mungiki have a role in being a real problem in terms of crime, including ironically the instrumental political violence forming the basis of the ICC charges against Uhuru Kenyatta who the revival of GEMA seeks to protect; they also have served as a “bloody shirt” waived by state security forces including the police to justify extrajudicial killing in recent years.

[Update:  See Muthoni Wanyaki’s “Now we know: Only ethnic mobilization is allowed” in the East African.

Related articles