The population of Kenya has grown roughly 25% since my year “promoting democracy” in 2007-08, from around 40 million to around 50 million. These are loose numbers because they do not reflect anything that is of the highest priority for Kenya’s leaders (and thus those outsiders who promote and underwrite Kenya’s leaders).
Kenya is to conduct a census this year, but the process is politically contentious and corruption makes it hard to carry off undertakings of this nature (another area where the United States seems to be moving toward convergence with Kenya recently). And there is always a new gambit, like “Huduma Namba” that comes along, with the help of Kenya’s politically-connected corporates and foreign corporate foundations, to get in the way of the core functions of the Government of Kenya, like conducting the census.
Unfortunately, although the size of the economy has continued to grow hunger has increased and Kenya remains a “middle income” country where the majority of citizens are inadequately fed. Agricultural performance has actually declined rather than merely grown at an insufficient pace as experienced in many other sectors.
But despite the decline in the undernourishment rate, which is, however, higher than Africa’s 20 percent, the prevalence of severely food-insecure Kenyans jumped four percentage-points from 32 percent in 2014 to 36 percent in 2017, resulting in Kenya’s ranking as the eighth-worst on the indicator globally.
Yes, Kenya continues to have a problem with employment as a whole and the failure of the various power generation schemes over the years has been one factor for Kenya’s reliance on imports rather than it’s own manufacturing. But the decline of agriculture is the more immediate and inexcusable problem–and would be much easier to address if it were prioritized–as opposed to yet another questionable power generation scheme.
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!
Citing the joint planning required between U.S. military and civilian agencies in Iraq and Afghanistan, the proposal is one of several that would put the U.S. diplomatic corps and its lead global humanitarian agency on a stronger national security footing, according to a draft of the State Department’s first-ever Quadrennial Diplomacy and Development Review, or QDDR.
Secretary of State Hillary Clinton ordered the review last year to be modeled after the Pentagon’s four-year review, intended as a strategic guide for appropriators. It is part of an ongoing White House-led effort to link development and national security.
“To advance American interests and values and to lead other nations in solving shared problems in the 21st century, we must rely on our diplomats and development experts as the first face of American power,” Clinton said in the introduction of a “consultation draft” version leaked to The Washington Post this week. “We must lead through civilian power.”