On Monday, January 23, the International Criminal Court (ICC) will deliver a ruling that will radically alter the Kenyan political landscape and greatly impact ethnic relations in the country. The ICC will either confirm or dismiss the charges brought against the suspects behind Kenya’s post-election violence in 2007-2008. Whatever the decision, the ruling by the ICC will shape the future of the country significantly. The ICC process is expected to help end the culture of impunity in Kenya. However, there is a real chance that the ruling will have negative consequences on the future of Kenyan politics and peace in the country. How Kenya, Africa’s regional organizations and the international community respond to next Monday’s ruling will be critical.
Following the 2007-2008 post-election violence in Kenya, and the parliament’s failure to establish a credible tribunal to investigate and try those suspected of instigating the violence, the case was brought to the International Criminal Court in the Hague. The ICC’s pre-trial chamber named six suspects bearing the greatest responsibility for the violence in Kenya. These included senior politicians -William Samoei Ruto (currently a member of parliament and former cabinet minister), Henry Kiprono Kosgey (former industrialization minister and current member of parliament) and Uhuru Muigai Kenyatta (currently deputy prime minister and finance minister); senior civil servants – Ambassador Francis Muthaura (permanent secretary and head of the civil service and the office of the president), and Major Hussein Ali (former commissioner of police and currently postmaster general); and radio personality, Joshua Arap Sang.
The first group of suspects charged by the ICC (Ruto, Kosgey and Sang) has been accused of perpetrating violence in Kenya’s Rift Valley, which led to the murder, torture, persecution, and forceful deportation of members of the non-Kalenjin ethnic groups, including the Kikuyu, Luyha, Kamba and Kisii. Members of these ethnic groups were targeted for their support of the Party of National Unity (PNU) and their opposition against the Orange Democratic Movement (ODM). Sang has been accused of instigating criminal and violent activities against these groups through his radio broadcasts.
The other three suspects (Ali, Muthaura and Uhuru Kenyatta) have been accused of supporting attacks of non-Kikuyus in Nakuru and Naivasha.The violence against non-Kikuyus was apparently in retaliation of the attacks of non-Kalenjins in the other parts of the Rift valley. Specifically, they were accused of financing the illegal criminal gang, Mungiki. In addition, it was alleged that Muthaura and Ali could have prevented the violence and by not performing their tasks, or through neglect, they contributed to the crimes. Both groups have denied the charges and have argued that there is no evidence connecting them to these crimes. For Ruto and Kenyatta, who are both aspiring to be Kenya’s next president, they argue that the allegations against them are just a ploy to remove them from participating in the elections in 2012.
While it is hard to predict the court’s final ruling, we expect four possible scenarios:
Scenario 1: The charges against all are confirmed and the case proceeds to full trial
A decision to confirm the charges against all the suspects would have far reaching consequences for Kenya. With such a ruling, the ICC would be sending a very strong message to Kenyans on serious consequences of engaging in and inciting election violence. For the victims, it would be a big step in the healing process. This decision would also send a strong message to other African countries about the powerful role that international organizations can play in their countries.
A confirmation of the charges against Uhuru and Ruto would mean the veritable end of their political careers. While it would not necessarily imply that they would be found guilty when their cases go for a full hearing, their candidacies in the 2012 Kenyan presidential elections would be over. While there was never any guarantee that either of them would have won the presidency without these charges hanging over their heads, a ruling confirming the charges for crimes against humanity would mean that the two would be viewed with suspicion by the Kenyan electorate. In addition, Chapter six of Kenya’s new constitution on “leadership and integrity” sets standards for office bearers and a ruling that confirms the charges against the two would automatically disqualify them from running for president in the next election.
The biggest beneficiary under this scenario would probably be Prime Minister Raila Odinga who is currently the front runner and has not been implicated in the post-election violence. But the ruling could also present challenges to Odinga if new coalitions were to form bringing together supporters of Kenyatta and Ruto. Other possible beneficiaries of this outcome are the leaders of the PNU alliance fronted by Vice-President Kalonzo Musyoka and the Minister for Internal Security George Saitoti. With Kenyatta and Ruto pushed out of the political scene, new alliances would likely form that would probably increase ethnic polarization. But as Kenya’s history has shown, in politics there are no permanent enemies and it is likely that the ICC ruling could result in very strange alliances.
Another unfortunate result of such a ruling from the ICC could be the escalation of ethnic tensions. The ethnic groups most likely to be involved would be the Kikuyus, Kalenjin and Luos, with most of the anger directed against Luos, although the initial violence during in 2007 and 2008 was between Kikuyus and Kalenjins.
Scenario 2: Charges against some are confirmed
Probably the most difficult outcome for Kenya to manage would be one where the charges are confirmed for some but not others. This decision would most likely fuel tensions between ethnic groups, particularly if the charges are only confirmed for the suspects from one ethnic group. Those with charges confirmed against them would likely claim unfairness against their ethnic group and this might not only incite ethnic hostility but also trigger widespread violence across the country. Although there has been remarkable progress in peace-building in Kenya’s Rift valley after the 2007-2008 post-election violence, a decision that is seen to favor members of one ethnic group could be extremely damaging to improvements achieved since 2008. Such a decision would also change and shift political alignments and allegiances, largely along ethnic lines.
Scenario 3: Charges against all suspects are dropped
The other possible outcome is that the charges against all the suspects are dropped. Such a decision would give credence to the victimization claim that the suspects have been putting forth. The decision would elicit a lot of anger from the victims of post-election violence and from civil society in Kenya. It would see a culture of impunity entrenched in Kenya, where perpetrators of violence and other crimes go unpunished. The whole ICC process and credibility of the prosecutor would be severely damaged. However, this decision is unlikely.
Scenario 4: Charges against all suspects are not confirmed, but more time is given for evidence gathering or the charges are amended
If the ICC deems that the prosecutor may not have gathered enough credible evidence, then it may require withholding a decision on the confirmation of charges until more evidence is gathered. The court could also decide to have the charges against the suspects amended. While such a ruling may not necessarily trigger violence, it would certainly impact the political fortunes of the suspects. There would be uncertainty since court hearings could drag on until after election day, which could disqualify the suspects from participating as presidential candidates.
Preparing for the Worst while Hoping for the Best
The Kenya government, regional African organizations and the international community should be prepared for the worst. The immediate reaction to the ruling by the ICC could very well be an eruption of violence that could spread even beyond the areas impacted during the last general election. Kenya’s government must be prepared to protect its people and property with all the means necessary.
The African Union’s panel of eminent African personalities led by Kofi Annan must be prepared to work with the Kenyan people to forge unity across the country. Whatever the ICC’s decision, the Kenyan government and leadership must be prepared to handle the serious possibility of ethnic hostility and violence.
For President Mwai Kibaki and Prime Minister Raila Odinga—the two individuals whose campaigns for president in 2007 resulted in the post-election violence— it will be a time to show leadership, go beyond tribal loyalties, and prioritize first and foremost the future of Kenya and its people.
In the end, there will be no winners from the ICC process. It is an unfortunate process born out of an even more unfortunate crisis. The lesson to Kenyans is that building strong institutions is the only way to prevent future problems and crises like the post-election violence of 2007 and 2008. Furthermore, local institutions are best suited to deal with perpetrators of electoral related violence.
Pre-Trial Chamber II: International Criminal Court Public document NO: ICC-01/09-01/11 and NO: ICC-01/09-02/11
Republic of Kenya, The Constitution of Kenya 2010.