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

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.

 

 

 

 

 

 

 

 

 

 

MUBI COLLEGE MASSACRE: A betrayal of hope

In what is an extremely bizzare massacre, 27 students from the Federal Polytechnic Mubi college in Nigeria were massacred 2 days ago in which pleriminary investigations link to forthcoming Campus elections.

This seems to be a graduation of violence means that characterise college elections all over Africa. In Kenya for Example, the immediate former SONU secretary General, Alex Matere was attacked by what has been severally linked to political hooliganism.

Several colleges have closed down due to botched elections, several elections nullified due to fraud and many candidates disqualified for engaging in intimidation and hooliganism.

This tells a sad story about our generation. It tells of a generation that is perfecting the art handed to it by its fathers. A tradition that one can armtwist democracy through violence and terror, that power can be gotten through blood letting and that human life is insignificant as it can be arbitrarily sacrificed to gain power.

In Kenya, ethnicty continues to get root n college politics. Electioneering seasons see mushrooming of ethnic cohorts, not to celebrate the beauty of diversty but as bargaining schemes for power. This is what refelcets itself on a national scale with such perfect resembalnce.

It is even worrying that many college student leaders find themselves in national politics. In Kenya for instance, Several minsters and other prominent leaders had stints at college politics. Hon. James Orengo, Anyang’ Nyongo, kabando wa Kabando, William Ruto and many others.

If it is this same translation that we will see in the coming decade, then the political future of our countries is bleak. Africa will then have to contend with the same problems of ruthlessness, hoolignains and negation of the sovereign right of people to choice.

I urge those of my generation to continually exercise tolerance, to continually be able to know that just as we are entitled to choice so is everyone else. We are a people bound in the same skin, faced by the same challenges, inspired by the same hopes. It is inexcusable for this continent to loose 25 young Nigerians whose contribution to the world would certainly have been great.

And as Kenya heads to election, political interests will start to infiltrate our colleges. As young scholars, we know that sensationalism, regionalism, tribalism and intolerance is what has costed our country its hope. We cannot afford its continuance, we cannot afford its perpetuation and we must fight for its termination.

We have a chance of exerising knolwldgebale democracy. Where our vote is founded on conviction and concern for ourselves and our collective growth.

I mourn the 27 young Nigerians. I urge speedy investigations and prosecutions.

May God bless Africa. May God bless Kenya.

Lone Felix

Personal Statement