UHURU IS NOW FREE: WHAT DOES IT MEAN AND WILL JUBILEE HOLD?

There is already talk of an imminent split of Jubilee because the ICC is the cord that bound the two entities together. While I agree that indeed the ICC question played a great role in the unity of Uhuru Kenyatta and William Ruto, I think the excitement that the fall of Uhuru’s case spells doom for jubilee is naïve. This is for several reasons.

The dynamics of Uhuru and Ruto cases are very different. The two cases share one indisputable thing; they were at the ICC as a result of either omission or commission of the Kibaki side of coalition government. I have held this opinion for long, and I am certain it will be validated.

Last week ended with a win for one Uhuru Kenyatta. I mean, after the lashing when he came back from his Formula One escapades, he finally facilitated the retiring of Inspector General of Police, and managed to hide Lenku. By the way, was Lenku fired, retired, reassigned or whatever? I do not know, the only accurate answer I have received so far, he was a victim of the Mandera Massacre, quite literally and figuratively.

So, the President’s week could not have ended any better. The International Criminal Court finally withdrew the charges against him. And with that, the man was excited, driving himself home. But as always, the politics of the day dawned on him pretty first.

So what does the withdrawal of the case mean?uhuruto110214

I would like to go back to that clip, when the cabinet secretary for ministry of Foreign affairs was announcing the decision. She noted, to paraphrase her, that with the same vigor and commitment, they will work on the remaining two cases.

The statement reveals something: Work has gone into the Presidents’ case. Whereas the Prosecutor noted that the only reason why she dropped the case was the inadequacy of the evidence, the reality of the political nature of both the court and the cases, suggest that many extra-legal considerations were taken into account.

As Adam Taylor insinuated in his article on Washington Post, the fall of this case has many implications on international justice. One it sets into motion a possibility that even on international platforms, there are people who will always be bigger than the law. Well, Kenya has not hidden its interest in pursuing this agenda, since one of the issues for discussion at the Assembly of State parties is a proposal for immunity of sitting head of states.

Secondly, it brings to the fore the fragility of international mechanisms, and gives us one clear thing that we must always pursue: Our best bet with justice, lies in strengthening local mechanisms. At the international level, it is politics, and one can always negotiate their way out of any situation.
Thirdly, it is a diplomatic score for the African Union; whether the pressure from AU had actual bearing on the outcome of the case or not, the union will be keen to appropriate unto itself a certain level of might. And since politic is just as much impression as it is reality, well the union has definitely scored.

And finally, the withdrawal may just as well have a good impact on the court itself. Since the evidence was inadequate, and the case was withdrawn, the court can claim to be judicially and operationally independent, because, in an ideal situation, cases in courts with inadequate evidence are withdrawn. If it were an entirely political case, Uhuru would have been fixed either way; with or without evidence.
On the domestic front, the collapse of this case will be extremely politically significant.

There is already talk of an imminent split of Jubilee because the ICC is the cord that bound the two entities together. While I agree that indeed the ICC question played a great role in the unity of Uhuru Kenyatta and William Ruto, I think the excitement that the fall of Uhuru’s case spells doom for jubilee is naïve. This is for several reasons.

The dynamics of Uhuru and Ruto cases are very different. The two cases share one indisputable thing; they were at the ICC as a result of either omission or commission of the Kibaki side of coalition government. I have held this opinion for long, and I am certain it will be validated.

William Ruto’s advocates have mentioned senior government officials as having been behind his indictment at the ICC. These include a PS and a senior political advisor to the President.

These two people have faced extreme hostility from the URP arm of jubilee, but my guess, is that they are in government because they created the Uhuru Presidency.

So, while the case of the President has collapsed, the Ruto case can also collapse, but will it? I bet it can only be after 2017.

In politics, people bargain with many things, including the dirt I have on you. In my opinion, it will be in the interest of the TNA arm of jubilee to have the ICC case flickering past 2017 as a checkmate to the Deputy President.
Many people share an opinion that Ruto’s chance at the Presidency lies if he were to go against Uhuru in 2017. I partly agree, because after 2017, the dynamics will be very difficult for the Deputy President. Certainly he will no longer be young and cool, a notion jubilee has planted as a key ingredient to qualify as president.

So yes, the impatiently ambitious Deputy President, can actually bolt out of jubilee, and it is in the interest of politics, that TNA maintains a good bargaining chip against him.

So my own projection will be, Jubilee will survive beyond 2017, and Ruto’s case may last beyond 2017.

The second political implication is the disadvantage the death of this case gives to jubilee narrative. It was easy for the duo to cast themselves as victims or a wider scheme to deny them power. They whipped emotions around this, and made their supporters to believe a vote against them, was agreeing that they should head to the ICC.

So, politically, the duo has to find a narrative as powerful as that to replace this. They will in 2017, no longer be victims, or at least the President will not be a victim or a wider plot.

This can easily therefore change the 2017 general elections to be a vote on how well they have performed. If the 2017 election becomes a scorecard, it cedes a relative advantage to their opponents who would like to start objective evaluation of their politics.

In 2013, advancing a rational argument against the duo was very hard since their candidacy was pegged on emotions. You cannot be rational where emotions reign.

Uhuru Kenyatta may therefore easily be the villain of the 2017 elections, a position he has never been politically. In 2002, the villain was Moi, in 2007, it was Kibaki, and in 2013 it was Raila. In 2017, it may be about the person Uhuru Kenyatta.

My own estimation is that this can be exciting, especially because the President seems to be unable to manage criticism well.

The opposition has a good chance at taking this to their advantage; I know they will not anyway.

The only way Uhuru will not be the villain of the 2017 election is if Raila vies for President. If he does, a simple narrative like, let Raila lose fairly for once will carry the day and Uhuru will be smiling back to statehouse. The baggage of incumbency will only rest on Uhuru, if there is no other emotional option in the election.

If therefore Raila fails to run, and the opposition identifies a single candidate whose profile by way of charisma and stature can match Uhuru’s, 2017 elections have a chance of being very competitive.

There has been a debate whether this collapse means the triumph of impunity, to say so, would mean we are presuming Uhuru guilty, which is not fair and is not a notion of the rule of law. As to whether he is innocent or not, the process aborted, there is no objective way of determining that.
There is the certainty of uncertainty as we move ahead. Interesting times that must be watched carefully.

Lone Felix

WHAT IS UHURU KENYATTA’S: “PR” or PRESIDENCY?

Uhuru-Kenyatta-selfie“Either way you look it, the person Uhuru has definitely shaped what the Kenya’s presidency looks like today. Not just by the fact of his being the occupant of the office, but his very personal nature.

A powerful narrative equally arises against this conclusion. I mean, all the communication around the presidency could be strategic; to borrow a word from what now is the “PSCU” Presidential strategic communication unit. Each photo, each post perhaps calculated to manipulate your thinking.”

The Singing Senator, Gerald, Otieno “Nyakwar Nyakwamba” Kajwang’ breathed his last; may the good Lord rest his soul. There are numerous occasions when he humorously communicated sad realities. While reporting, to Baba on the state of security, Kajwang’ captured what Kenya was then as a nation, of “mbomu, hapa, mbomu kule.” And at a rally recently again, he was at it, just failing short to call Kenya a failed state. He shot at the President, telling him police cannot die fo-fo-fo, a scathing political attack by all measure.

When he passed on, President Kenyatta eulogized him. He saying he found Kajwang a pleasant person to deal with. Yes, a truth that those who have never walked the trails of politics fail to understand, it is never personal. But even in death, many whose political egos were bruised by the senator lashed out at his breathless self. Such a vanity I must say.

It is uncharacteristic of a President to comment on the feedback he gets on his post, but Uhuru Kenyatta did the unexpected, he came to the defense of the dead; urging respect for the grief the Senators’ family was facing, a good thing. And Uhuru is increasingly becoming known for good things.

He visits Kibra with very little security detail and talks to common folks. He greets little children who do poems, and hosts Otonglo when he gives a good narrative. The man just is not stopping. He congratulates Gor Mahia and yes, gives Jaro Soldier immediate work.

To his critics, these are PR stunts that do not reflect the actual score card of his governance. To his followers, that is the president they elected; a man of the people, humble and down to earth. Whichever way you look at it, the charm offensive continues, and seems to be achieving its intended results, and so is the narrative that the stunts are just that, stunts, with no reflection of actual work.

Where does the truth lie? Is the Jubilee government working or are they just out to manipulate perception?

The answer is certainly not as clear as one would aspire. There is a remarkable difference between the Kibaki and Uhuru Presidencies. One looks like it did a lot, but communicated little; Uhuru’s is keen on communicating everything. Well, to play a devil’s advocate, “uwazi” transparency lies at the heart of jubilee promises, a key pillar. So perhaps, the good president is just but living his promise of ensuring you know what happens each day.

My interest was however to try and determine how the person Uhuru, has influenced what the Presidency now looks like. We all agree, the traditional aura of near-holy nature of the presidency has remarkably disintegrated. While Kibaki left the office without an official Facebook page, Uhuru’s page offers the platform where he interacts with people. Communicates messages and of course, shares those photos that make us see the cool president.

Generally, social media is never a true reflection of a person’s real nature. There are virulent bloggers online who when you meet, are impressively meek that you would be surprised at the contrast. But the man Uhuru, how different is the all smiling president from the “jamaa” UK.

His friends agree largely that the man has carried his nature to the presidency; a firm handshake, a good word for everyone and yes, those ten seconds that make you feel like he has known you for a lifetime.

Earlier this week, I met a gentleman who definitely has a soft Spot for Uhuru. And this started way back at the heart of post election violence. After the displacements, Uhuru so often visited the victims. On this particular day, he visited Mawingu Camp in Nakuru, a cold rainy day. He was the minister of Finance.

As it Rained, Uhuru stood with the IDP’s in the rain, and took porridge with them. Now this cemented a cord that you just cannot untie. Let me dwell slightly more on this IDP issue. Uhuru is among the accused at the ICC on account of 2007 Kenya’s post election violence. The case has had an impressive circus characterizing it, but the greatest paradox, is that the victims of those violence are the ones most vehemently opposed against the continuation of the case. To a majority of them, Uhuru was the sole intervener who rescued the situation.

This sort of draws a parallel to India’s Narendra Modi. All the men share an international loathing at some point, especially by the west, but a sharply contrasting fanatical support from their core home lovers.  And just for the sake of it, they all share a love for selfies. We will do a comparison later on.

Uhuru was born in royalty, no doubt. Born to a father who would become Kenya’s first President, he knew and lived power all through. In part, as I noted way earlier, he has a way with power. And the presidency and its trappings would rarely surprise him, may be the reason for the ease with the Presidency.

But even so, though born to the first President, that image of Uhuru with a truck ferrying cabbage from Nairobi to Kiambu, and later on working as a bank teller, perhaps point to a person who is not a typical “Africa’s big man’s son.”

Either way you look it, the person Uhuru has definitely shaped what the Kenya’s presidency looks like today. Not just by the fact of his being the occupant of the office, but his very personal nature.

A powerful narrative equally arises against this conclusion. I mean, all the communication around the presidency could be strategic; to borrow a word from what now is the “PSCU” Presidential strategic communication unit. Each photo, each post perhaps calculated to manipulate your thinking.

Is there an actual difference from Uhuru’s use of mainstream and Social Media and what other world leaders do?

Among global leaders who frequently use Social media is USA’s Barrack Obama. Obama has over 44.6 Million Followers on his official Page. A quick scan through the page points to it as largely impersonal. While it has glimpses that portray Obama as a cool guy, or perhaps who has a great working relationship with his Deputy, the bulk of posts point to a usage of social media as a mobilizing platform.

Obama therefore routinely posts petitions or messages aiming to seek support for a policy initiative he is undertaken. For a while now, the page has been dominated by messages relating to Obamacare, his pet healthcare reforms policy.

On the other hand, Narendra Modi of India has a strong 25.1 Million likes on Facebook. He, like Uhuru Kenyatta communicates activities on his platform, like which world leader he met and brief snippets of what the meeting was about. And yes, he too shares selfies.

The two leaders share a lot in common that could go into understanding the similarity in their messaging. We noted the disapproval they all shared at some point especially from foreign nations because of their association with violence, yet an inexplicable deep love from their core supporters. I do think that such messaging that seeks to point out the good personal attributes of the leader can be safely construed as a pursuit for acceptance.

In the Kenyan context, Kenyatta’s Presidency was founded on a fear that its mandate was not absolute. The thought of a persistently nagging opposition in my opinion is at the heart of this messaging. So the stunts and the carving of the stories seek to endear the president to people, especially those who did not support him.

There is definitely nothing wrong on this.

What would be wrong is if real work suffered at the altar of this impressionism. And indeed, there have been instances when government communication just failed to make sense and in part bordered over communicating or unnecessary PR.

Uwezo Fund for example, was launched on Sunday, September 7th 2013 in an impressively engineered event. At the time of the launch, largely Uwezo Fund was just but an idea. After the launch, it became apparent that even the regulatory framework of the fund was non-existent. Parliament had to consider the framework, pass it before Uwezo Fund, became a real policy.

More than a year on, after the launch, as late as last week, there was no single person who had received funding from the Uwezo Kitty. I am told the funds started being disbursed sometimes last week.

Now, I am unable to understand why at a very basic level, a government would launch a project that has no regulatory framework. The haste points to an urgent need of being seen to be working. And definitely, the first ad on “Usalama unaanza na mimi na wewe” was quite something.

The problem with “PR” is that it can reduce public criticism and drive a government to a comfort zone where they actually end up believing their own spinning. And this obsession with self approval can be seen starting to crop up in Jubilee. Considerably, agents of government are keen on passing the message that we are working, than listening to what the public say should be done. The natural consequence of this will be a disconnect between the masses and the leadership. A disconnect that will negate the very reason for PR.

As such, quoting numbers and vehement justification of a tenure will definitely do no long term good to the government; but that communication will certainly do magic if it resonates with the public’s reality. Unfortunately, individual reality cannot be manipulated.

Either way you see it, I walked through Kibra, and its way clean, thank God for the NYS seconded there, and am told the geothermal power is now working right? On a Radio show, one of the state spinners, Dennis Itumbi offered to pay electricity bills of anyone if the cost of electricity fails to come down next month. Still, police men were butchered in Kapedo; many Kenyan’s can barely afford a decent life and public health facilities are dens of death.

Whether PR or not, a lot more needs to be done.

THE THIRD PERSUASION: JUST NOT JUBILEE OR CORD

“These two formations though, are morphing into entities that will pose the greatest challenge to Kenya; Jubilee; a ruthless machinery, keen on preserving its hold onto power, but dangerously unconscious to the need of nationhood; CORD, a scheme of frustrated ambition able to give a shot at their dreams at any expense”

With the high court ruling that only three political parties will benefit from the 205 Million Political Parties Kitty, smaller parties must be wondering how they will survive. Indeed, some have already started moving from expensive offices in the leafy suburbs of Nairobi to way humbler locations. With funds obtained from party nominations exhausted, pilfered or mismanaged, a familiar circle of party deaths is coming full circle. Such has been the predictability of our politics, a certain gifting of each electoral cycle.
The elections of 2013 managed to realize another goal though, a resurgence of the Oginga-Kenyatta rift that seems to defy each political cycle. These two cleavages have then gone forth to cement cliques around themselves and Jubilee and Cord were born. Each drawing their depth from shared distrust, and fueled by a burning pursuit of political power.
Any political contest is founded on a desire for power. A people centered political contest will add a hope; that with power one can influence a society to better ends, to that desire. Jubilee and Cord are formations that have shown that they ascribe to the former, a raw pursuit of political power with the real issues affecting people playing an impressively peripheral role.
As I write this, I have just concluded reading the National Development Party (NDP) 1997 manifesto. NDP then was a Tinga affair, and I must admit I am impressed. That manifesto, unlike anything glossy today had a real touch of what truly affected people. And indeed, many items it bore today have been anchored in the constitution. In comparison, ODM as a party is miles away in thought to be close to what NDP espoused. How time can kill real leadership.
Raila’s inability however to hold onto the spark that once characterized him is not a surprise. The man has criticized and dined with the system. He has sought it, grasped it before it was snatched away. He has been in the system, betrayed it, and destroyed it, before he was again ejected out. This mix would create a natural confusion I must admit.
But with this confusion, as the chief protagonist, his brigade finds itself frustrated by an evasive quest for power that they have started following the very paths they castigated. Indeed, if there is a fear I nurture today, is the impatience of Kenya’s opposition. Their acts, strategies and initiatives point to a nearing of desperation. Probably, an acceptance that belief in the idealism is not paying off, and that perhaps it is time for raw politics; value-less, just politicking.
So Kenya is at interesting times; a government that is struggling to find the heart of its people; consumed by raw pursuit of individual advancement, and an opposition that is impressively blank, unable to offer any credible alternative.
Yet, we have been lumped into these two formations politically. Our taxes only recognize them, as the sole representatives and bearers of the Kenyan dream.
It would be hypocritical to paint a picture that nothing is working. I mean we have seen quite some progress. Recently, we reviewed our data and pushed ourselves into lower middle level income nations; beautiful statistics. Even though it has no correlation with my daily bread, it attracts a certain pride to be told we are among ‘top-ten’ economies in Africa. This ‘top-ten’ business was such an issue in my primary school days. We at least have very high literacy levels, a president who takes selfies, so yes, a few things are working.
Both the current and past regimes have invested in real pieces of development. The road network is set to be upgraded and funds set aside for the youth. Whether the fanfare around this translates to real results is another question; likely, in my opinion to be answered in the negative.
But a country’s leadership must always know the season of its people. There will always emerge a single problem in the development of a country where if overcome, a trajectory of sustained growth becomes irreversible. Kenya’s at the moment is our inability to pull together as a people.
I have held an opinion that Kenya’s best moments occur when we pull together. In my own view, the independence government before rifts emerged, the initial stages of the NARC government and the grand coalition government offered real hope that Kenya would take off. Their collapse also necessarily meant a halt to the real progress towards a sustainably stable country.
A fundamental question therefore that we need to ask ourselves is whether the current two formations have the ability to rally Kenya together.
The faces leading the two formations are unable to unite us for many reasons. The fact of Kenyattaism and Odingaism is just as dividing to the opponents as is unifying to the supporters. The two graves excite love and hate in equal measure, and so whether their sons desire a united country or not, they just can’t be the vessel towards that unity.
This is not an entirely new notion. Even Biblically, even though David desired to build God a temple, the fact of him was too controversial for God to allow it.
But whether Raila or Uhuru truly wills a united Kenya is equally a fact in this. The two and their immediate brigade draw their support from their ethnic enclaves. If politics transcends ethnicity in Kenya, the very existence of the two dynasties becomes threatened. And so, it is in their interest to have a nation polarized, and that informs the political rhetoric that has characterized the two fronts.
Admittedly, CORD and Jubilee have several people who will be willing to commit to national unity. But the shadows of the dynasties will always overshadow any of this initiative.
These two formations though, are morphing into entities that will pose the greatest challenge to Kenya; Jubilee; a ruthless machinery, keen on preserving its hold onto power, but dangerously unconscious to the need of nationhood; CORD, a scheme of frustrated ambition able to give a shot at their dreams at any expense. And sadly, all of them are recruiting youthful vigor into the callousness and desperation they are.
A normal Kenyan, who would like to belong, and have their struggles and prosperity found in a stable nation may not find their aspirations expressed here. A Kenyan who dreams of unity, shared challenges and shared dreams will rarely see the expression of this hope in the two formations. A Kenyan, who hopes that public good can characterize the pursuit and exercise of power, knows that Jubilee and Cord does not represent their hope.
So certainly, there must be a third persuasion. There must be a politics that truly deserves the honor of our taxes. There must be a leader not tarnished by the baggage of yesterday, or so deep a prisoner of interest who can inspire us to nationhood.
When Uhuru Kenyatta became president, I thought his stature would have overcome the confines of the system. History has a few examples of leaders who are nurtured by the system, but ended up disobeying them to the good of the people. Beyond the charm Uhuru has brought to the presidency, is certainly still chained to unfortunate interests.
Further, the interest that jubilee is rekindling in the presidency, casting it as central to everything revives the very ghosts that Kenya hoped to run away from by decentralizing power. Why, the presidency would re-emerge in this new dispensation as a powerful player to everything points to two things. A mindset that is deeply rooted in the past unable to transition to Kenya’s aspired spirit and secondly a deliberate dismissal of the intentions of the drafters of Kenya’s new order.
And while the opposition should have taken this chance and demonstrated what true belief in institutionalized reforms would look like, it has started a new clamor for change of system of government; a politically expedient quest. Merit notwithstanding, no society can afford the luxury of such frequent transitions.
And so Kenya is yet again with a politics that is not in sync with her aspirations. And I as a young Kenyan fail again to see a leadership that expresses my aspirations. I think it is time to for a Third Persuasion.

THE ICC: THE AFRICAN UNION IS MUZZLING KENYA’S SOVEREIGNTY

AU

AU

Sovereignty as a principle of international law denotes the right to exercise, to the exclusion of any other state, the functions of a sovereign, as explained in Island of Palmas Arbitration case. A sovereign here meaning the modified Austinian notion of he whose pronouncements are habitually respected. In modern times, this would refer to the institutions of law which exercise state authority on behalf of the people. 

In Kenya, our collective social contract is codified in a constitution, passed overwhelmingly by the Kenyan people in 2010. In the Kenyan Constitution, the sovereign authority is delegated to, the Parliament and legislative assemblies in the counties, the national executive and executive structures in the county and the judiciary and independent tribunals, per Article 1 (3) of the Constitution of Kenya 2010

Sovereignty is a sub-structural cardinal at the centre of international relations that every state, so legally recognized, should be respected and should not have its internal affairs and decisions interfered with by external interests. It would be naïve of anyone to say such a basic rule should be waived under any circumstances whatsoever. 

Here, we must note that our Kenyan municipal institutions and we as a people have made decisions unique to our contexts and which could actually be inconceivable in other jurisdictions. Kenya’s constitution for instance, allows criminal proceedings to be started or continued against a sitting President in instances where immunity against such a crime is prohibited by a treaty to which Kenya is part of. 

This is the constitutional basis that obligates President Uhuru Kenyatta and his Deputy William Ruto to continue cooperating with the ICC on the cases against them before the court. 

The African Union, meeting in the Addis Ababa to celebrate its jubilee, I must really wonder what they were celebrating, passed a resolution urging either termination of the ICC cases or that it be referred to either the Kenyan “reformed” judiciary or the African Court of Justice

The discussion was emotive, with the ICC standing accused of being a neocolonial tool to “humiliate African leaders.” My good friend Elliston Macharia quipped thereafter, he almost got convinced, but will when ICC goes for Jakaya Kikwete or Joyce Banda.” Perhaps the few discernible faces of the African aspirations. 

The African Union is justified to debate any issue affecting Kenya. We are a continent with a shared common destiny, a similar history and problems. But one indubitable thing is that the rate of social and economic progress in African countries is extremely at differing paces that it seems the continent’s leadership is incapable of having any shared progressive position. They find root, common purpose and passion in retrogression, excusing their inability to deal with the rot and impunity in their countries by blaming external geopolitical interests. 

Immunity against prosecution given to a sitting president has traditional been justified on the basis that it will bring disrepute to the institution of Presidency, who in all fairness is a states, first citizen.

 

Kenya’s progressive view, espoused in our constitution, allows suspicion that a president has done a crime under national or international to be a basis of their impeachment, Article 145 (b) of our Constitution. This notion is inconceivable to some countries where Presidents are deities. In particular the sponsor of the debate, Uganda is incapable of ever imagining such a law in its instruments. 

In all fairness, a man who will close down a media house because it is about to expose an alleged scheme to install his son as president is incapable of understanding why a Kenyan President would go to the ICC. 

Daily Monitor Paper Under Siege

Daily Monitor Paper Under Siege

It is however important to question the hypocrisy of Museveni as person when it comes to the ICC. On 12th July 2013, Moreno Ocampo visited Uganda and after a meeting the Ugandan government through its then minister of International Affairs Henry Okello issued a statement that Uganda was to arrest Sudanese President Omar El Bashir should he set foot in Uganda. 

It is understood that this was a silent means of compelling Bashir to help in the arrest of the Northern Uganda warlord Joseph Kony believed to be hiding in Sudan then under the protection of Bashir. Indeed, even after ICC issued an arrest warrant against Kony, Museveni agreed in a cabinet resolution that if Kony was to agree to sign a peace accord, he would negotiate with the ICC to rescind the warrant. This is a bloated imagination of his influence, disregarding the fact that the ICC is a judicial process, perhaps operating differently from the patronized Ugandan judicial system. 

The most chorused phrase in Addis Ababa was than Africa can solve her own problems, and that the ICC was a tool to humiliate African leaders. 

First what informs universal jurisdiction on some things like Piracy and International Crimes is the knowledge that sometimes we Well let us look at the esteemed African leaders indicted by the ICC. 

Omar El Bashir is accused of financing the Darfur conflict. Since the start of the conflict, it is estimated that close to 200,000-400,000 thousand people have lost their lives. Assuming that Bashir did not even participate in the conflict, what else can be a basis of illegitimacy of a government if such en masse atrocities are committed under a President’s watch? Others indicted from Sudan include, Bahr Abu Garda, Abdallah Banda and Ali Kushayb. 

From Uganda, they include Joseph Kony, Vincent Otti and Dominic Ongwen all leaders of the Lord’s Resistance Army. These people are accused of using child soldiers, holding women as sex slaves, torture, rape and other gross violations, is their indictment a humiliation of the African leadership.

 

An argument against the ICC has been that all its indictees are from the African Continent. The Rome statute has 120 state parties, with 33 cou
ntries being from the continent of Africa. The others are Asia-pacific, Eastern Europe, Northern and Latin America and the Caribbean

 

For the period when the Kenya post election violence occurred 2007, Africa accounted for 88% of the world’s conflict related deaths, followed by Asia pacific at 6% and Middle East 4%. If a continent accounts for 88% of conflict related deaths, why would it not account for 100% of persons indicted for international crimes? 

This is absolutely possible regarding the fact that the ICC is a last resort mechanism that only becomes operational when local systems fail to take action. 

What is even more important however, is for the African Union to know that the relationship between the ICC is not foreign. The ICC is a domestic court both under the Constitution of Kenya and the International Crimes Act No. 16 of 2008. 

The Constitution passed by the Kenyan people in the direct exercise of their sovereign power to determine their own destiny. The Kenyan people, in their wisdom agreed in Article 2(5) and 2(6) of The Constitution of Kenya that all treaties ratified by Kenya will be part of our laws. 

Our constitution, passed by ourselves, and not under the compulsion of neocolonial interests waived the immunity of our president for crimes under international law. Our local traditions as a Kenyan people disallow negotiations for settlement on crimes. This we enacted to ourselves through our sovereign legislature. 

More importantly however, the African Union needs to understand the unique circumstances that led to the ICC process. 

Kenya domesticated the Rome statute by an Act of Parliament in 2008 after the post election violence had occurred. Both the current President and his deputy had substantial influence in the August house. This domestication by law obligated the government to cooperate with the ICC; it makes it mandatory for the Kenyan government to enforce sentences issued by the ICC. 

In the same 2008, the Kenyan parliament enacted a Truth Justice and Reconciliation Act to look into historical injustices and do a report which will be implemented. The TJRC Report, Volume 2A from page 511 makes damning allegations against President Kenyatta as regards the Kenya post election violence. 

The report adopts the views of the Kenya National Human Rights commission the President may be linked to activities undertaken by the outlawed Mungiki sect during the period. 

However, unlike other persons named, the report recommends that no other punitive process parallel to the ICC should be commenced against the President and the duo. This further reaffirms our sovereign commitment to the ICC process. 

The African Union has no mandate whatsoever to purport to make a declaration that extensively usurps our local commitments. If this was urged by the executive, the Kenyan Executive was then attempting to use external pressures to circumvent our laws an act which is a constitutional nullity.

 

The African Union is interfering with our sovereignty; Our Parliament refused two attempts to set up local tribunals and opted for The Hague. As a matter of unquestionable fact, the Deputy President is on record having urged the ICC process to commence. If this case is fatally weak and founded on falsehoods, there can never be a more legitimate forum to ascertain that than a court of law. 

The acts above were undertaken by a parliament in discharge of its constitutional mandate, a parliament that had balanced political preferences. Our Constitution which embodies our collective aspirations was passed by a free nation in celebration. We were aware, that we would suffer both the convenience and the inconvenience of that law. 

As a people, Kenya must remain committed to the shared destiny of the African continent, but certainly, in the eyes of our laws, that quest does not involve collective support to impunity. 

Sovereignty must remain what it is, that nations have a right to self determination, that acts of national institutions must be respected by our external allies. And that Museveni and Salva Kiir must stop believing that they can best interpret Kenya’s predicaments than our Parliament.

 

The AU does not need to worry about the shame that will befall Kenya when our President appears before the ICC. Many of us do, but we are also aware that our laws must be respected both when they further our interests and when they bring relative discomfort. Our President has undertaken to respect Kenya’s international obligations, and in his words, the ICC is a personal problem like many Kenyans have personal problems.

 

Why would a Union with Mali to deal with, Somalia to rebuild, Hunger to eradicate involve itself in the personal problems of three Kenyans?

 

But we all know what the AU’s record as to the rule of law is. One only needs to see the support it has given to its own African Court of Justice. An institution conceived decades ago which barely has a functioning secretariat talks of the union of a people committed to the rule of law.

 

By the way, the President of South Sudan talked of a reformed Kenyan judiciary, we cannot be surprised. With South Sudan still reporting abductions, torture and unlawful detentions, a Supreme Court that delivers its verdict before National TV must be the hallmark of reforms.

 

But as a nation we still have our problems. We still have Justices being taken before the judicial Service Commission; we still have a Supreme Court that misquotes our own constitution; we still have files that disappear in our registries and many still believe we have many steps to undertake before we say we have a reformed judiciary.

 

 

 

 

 

 

 

 

 

 

Elite Failure: Kenya’s Hopes Interred by Her Privileged

 

he knows that the media will irresponsibly lump the whole blame on the entire parliament. He knows that he can bribe his name out of a newspaper story. He knows that even if the newspaper wrote that he is the one who introduced the amendment, those who understand the risk it posses to democracy will leave offices in the evening, swipe their credit cards in supermarkets and rest on couches in the evening relishing the fact that they are about to get a masters degree. It is Kenya’s elite who kill their own aspirations”

NARC’S ascending to power in Kenya in 2002 signaled the end of the Moi era but created a stagnation of civil progress. While both the Ibrahim Mo and World Bank indices have showed that Kenya has shown improvement in governance, other social indicators of societal progress like the elite unity heavily lack in the fabric.

In a discussion with the CEO National Convention Executive Council, Cyprian Nyamwamu, a very peculiar truth came forth. The anti-Moi struggles prior to 2002 were just that, a country united against a person. In his words, Cyprian says, there was a duet of principles: For Kenya and For Moi.

I would therefore imagine that in 2002 the country united in voting Moi out. And as it would be, the rage attracted a considerable collateral damage. Those who remained intimate with Moi were swept, but never into oblivion. They sneaked back into political prominence because essentially, the country never thought of them as inherently bad people, they were thought merely as betraying the tide.

The 2002 scenario allows us knowledge of several crucial aspects; the first being the missing of long term commitment to good governance in Kenya. The most pertinent question we need to ask ourselves as a country is; were the struggles culminating to the KANU overhaul in 2002 genuine or fueled by self interest within the Kenyan elite?

To answer this, we need to admit the confusion that the 2002 overhaul created in Kenya. Just before 2002 happened, I previously alluded to the fact that Kenya was divided along those for the regime, and those for the country. The latter brought together the entire middle class. It merged opposition politics with the civil society creating total non distinction between the two.

In the struggle against Moi, we had a lawyer who was struggling to have ends meet, a teacher with a poor pay, a doctor with no facilities at work and a relevant donor who took pride in funding the civil society to raffle the government.

The donor community never believed in the possibility of a Mwai Kibaki presidency. The political calculations then heavily pointed to an Uhuru Kenyatta presidency. To reduce foreign influence in the 2002 election, Moi lead the donor community into believing that his usual tact would carry the day. Moi thought that the greatest risk to KANU’S continued hold and by extension his hold onto power through proxies would be threatened by unity of all the ambition then existent in KANU. KANU then had Raila Odinga, Kalonzo Musyoka, George Saitoti and Musalia Mudavadi all believing that they were entitled to the presidency. In this ambition, Moi saw a way of retaining power.

He created internal dissent within the party by anointing Uhuru Kenyatta. In his calculations, a move that the donor community believed it would work, Moi anticipated a revolt. He hoped that all the ambitious within KANU would go separate ways hence a multiplicity of candidacies within the opposition and a divided vote. Then, one only needed a simple majority to be president.

It almost happened so. But strangely, the revolting Turks united under LDP and later with the NAK opposition and handed his regime a defeat. This defeat saw active pro-democracy activists join the government.

This created a confusing scene; an abrupt realization of the elite’s goal. Moi had become one thing around which the country was spinning. Moi embodied all the evil that Kenya wanted to rid itself. Subsequently he ceased being the just the face of politics, but a uniting factor philosophy. The disapproval people had of Moi started determining the social evolutions in the country.

Just like a partnership winding after completion of purpose, the Kenyan elite wound their union and receded into personal development. A lawyer left the street and went to the bar, an optimistic teacher went back to class and a private business person started investing again. While the whole country could join hands in blaming government for a pothole on Mai Mahiu-Narok Road, after 2002 that became a problem of the users of that road.

The fusion of social activism and state also created another confusion; while in the Moi era, when one talked about recognition of the Mau Mau, they could be seen as a burden to the state, the NARC era brought scenarios where civil society groups would meet with the Mau Mau delegations in the Minister of Justice’s boardroom. The NARC government moved in to create commissions and refurbish government departments empowering them to undertake crucial activities. Most of these activities had previously been undertaken by the civil society.

The empowering of Anti graft agencies for instance stole the spark from the civil society. But while the civil society had been genuine in its fight against corruption, the government backed agencies became masks. They used technicalities to excuse graft. On the other hand, the civil society was disintegrating. A part from the ugly fact that they could not attack an agency that they had lobbied for, the intertwining of politics and civil movements robbed the civil society unity.

With people hanging on individual strands, the country receded into a crude association. While in the Moi Era people united because of bad governance, the post Moi era created a vacuum of association and ethnicity stepped in. The NARC government created expectations which it foiled at the start. People anticipated opportunities which were never created. While they were united in the anticipation, they could only but separate in disappointment. The society then became cautious of regions, tribes and this fermented in part spilling out in 2007 into horrendous violence.

This probably allows us to regard a few factors; there ought to be a delicate balance between the civil society and the political interests. The political elite here mean the government and opposition inclusive. Whenever there is a blossoming intimacy between any faction of the political elite and the civil society, we ought to revise our priorities, since then, that would be sectarian and momentary interests that may not withstand a test of time. The society needs to continually set standards that are slightly higher than the delivery ability of the political class.

The civil society needs unite in bits with the political class but sustain a cautious friction that allows continuous pressure for performance. This is unachievable if there are cracks within those who do not compete directly for influence. The inability of Kenya’s privileged, those who have a chance of knowing unity beyond kinship or regional, those who know another commitments beyond immediate ethnic ties, their inability to unite positively is the reason for stagnation in the civil progress.

Politicians take risks which they know their electorate would either agree with or fail to understand. When a Member of Parliament introduces an amendment to allow for party hoping, he knows that the media will irresponsibly lump the whole blame on the entire parliament. He knows that he can bribe his name out of a newspaper story. He knows that even if the newspaper wrote that he is the one who introduced the amendment, those who understand the risk it posses to democracy will leave offices in the evening, swipe their credit cards in supermarkets and rest on couches in the evening relishing the fact that they are about get a masters degree. It is Kenya’s elite who kill their country’s aspirations.

The sudden expansion of space by the NARC government institutionalized stagnation. It exposed our Achilles’ heels in personalizing our struggles as opposed to having a pursuit based on a defined philosophy. We see enemies in people, not in betrayal of our strict aspirations of a pure governance system.

It would take a restructure of the Kenyan elite to renew a true pursuit of untainted governance in wholesomeness. It would take a creation of a philosophy. Beyond the flair of civic education on responsible voting, beyond the personalization of who should be president, beyond a look at the track records of our intended leaders, we need the privileged to have a commitment that transcends the moment.

In the restructure, the elite needs to know sensationalism and press conferencing will not influence policy. The fading civil society speaks of a detachment between the elite and the masses. This is what legitimizes political imprudence. Whenever you allow the political class to engage directly with the hearts of the masses without a credible check from those who ought to be the conscience of the society then you allow an imperial democracy.

We should not let the pursuit of the privileged to be insensitive to the collective good of the society, as in this there shall lay a legitimacy of demeaning privilege, devaluing education and allowing for political impropriety. Our inaction, has failed the country.

In a recent comment, the Director Vision 2030 wondered why Kenyans were dying on Thika Super Highway. He commented: when you have a first class facilities, and a third class mentality the sum total is third class. What Mugo Kibati might never have known is that when a citizen is third class, he is rightfully so, and when you place a first class facility in their midst, you are obliged to occasion an understanding of the first class and its nuances. It is we, those who understand that traffic jams result into huge monetary losses that are to blame for the deaths of those who fail to understand why they should use a longer footbridge, yet they can jump over the rails.