Off the ICC´s´Hook´the two Kenyan Indictees

The two remaining Kenyans indicted at the International Criminal Court  in The Hague have had their cases terminated by the Court due to insufficient evidence presented by the prosecution linking the two to crimes  they were being accused of. Deputy President William Ruto had been accused of being criminally responsible as an indirect co-perpetrator of the crimes against humanity of :

murder (article 7(I)(a), deportation or forcible transfer of population (article 7(I)(d) and, Persecution(article7(I)(h)  

The radio presenter of the Kalenjin station KASS FM Joshua Arap Sang had been accused of having  otherwise contributed to (within the meaning of article 25(3)(d) of the Rome Statute) to the  commission of the following crimes against humanity 

murder (article 7(I)(a) ,deportation or forcible transfer of population (article 7(I)(d) and, Persecution(article7(I)(h)  

The judges also cited  ´troubling incidences´ of witness tampering and ´intolerable ´political meddling which contributed to the mistrial of the case. The defense counsels of the two accused Sang and Ruto had actually hoped for something like a no-case-to-answer motion, which would have made their re-prosecution in the future at the ICC not possible.

A mistrial however permits prosecutors to re-open the case in the future if new and better evidence comes to light. However at the moment the possibility of such a re-trial  happening is next to impossible. Deputy President Ruto has the state apparatus at his disposal which he has used to his advantage to intimidate and coerce witnesses.

Diplomatically the Kenya government has gone full throttle in its effort to tarnish the courts image and portray it as anti-African and doing the bidding of the west especially on the African continent. With threats of en masse walk outs from the court the African block has managed to have its way, which has resulted in the court being embroiled in political and legal controversies at the expense of it´s core values of delivering justice and making sure there is no immunity under international criminal law.

Kenyatta and Ruto want to stay in power 2017

As the dust settles and 2017 elections approach in Kenya the alliance that was created to bring Kenyatta and Ruto together as a means  to confront the ICC charges and the indictment against them at the ICC helped deter another round of post-election violence in the 2013 elections that ushered them into power. The big question is what is going to bind them together this time round?  Kenya political landscape is based on tribal politics the electorate votes as a tribe or a coalition is negotiated based on what a particular tribal constituency can bring on the table.

Kenyatta comes from the Kikuyu tribe which claims to be largest tribe – yet there has never been an official census to back that up, the last was over two decades ago. The Kikuyu community has been at logger heads with the Kalenjin which is the Deputy President´s tribe because of pre- and post-independence land grievances in the Rift Valley province.

The 1st Kenyatta ,Jomo  Kenyatta who is the current Presidents father  was the first President of independent Kenya in 1963, he used his office to acquire large tracts of land which the British settlers were vacating after independence , his tribes men from the Kikuyu community both in his government and former home guards Africans who served the British colonial government all acquired land in the expansive Rift valley leaving the natives whose land had forcefully been acquired by the British settlers as squatters in their own backyard.

The Rift Valley has long been an ethnic battle ground

The Rift Valley  has been a hot bed of tribal clashes since multiparty democracy was introduced in 1992, former dictator Daniel arap Moi who is from the Kalenjin tribe used the opportunity to unleash terror and uproot the Kikuyu from the Rift Valley. In the first multiparty election the current Deputy president William Ruto  and others formed a campaign group called youth for Kanu which was given a blank check to acquire in all possible means resources to counter the opposition and so begun the systematic looting and pillage of Government coffers, public land was grabbed, overpriced government tenders and printing more money to fund the election, Moi won the election but the country was bankrupt and the effects can still be felt today.

The Kikuyu, Luo, Luhya and others were at the forefront of the multiparty movement but unfortunately for the Kikuyus many had settled in the Rift Valley and were systematically uprooted from their homes.The cycle only calmed down after elections and Moi had won awaiting the next five years to pick up again where it had stopped. After Moi anointing the current president as his successor, Kenyatta was defeated in the 2002 election by fellow Kikuyu Mwai Kibaki who was for along time Moi´s vice President.

The tragedy of the 2007-election

By 2007 the election and political landscape had dramatically changed Kibaki who had been elected in a coalition with Raila Odinga, a veteran politician from Western province, on a platform of change and zero tolerance on corruption had rescinded to the bad old ways and he was joined by Uhuru Kenyatta in government while Ruto was in the opposing camp. The inconclusive election led to the post election violence on a larger scale than during Moi´s mayhem years the Kalenjin and Kikuyu´s were at each others throat again but this time it was more vicious and spread all over the country.

Eventually the international community restored some order by forcing a coalition government between the incumbent Kibaki and the opposition leader Raila Odinga as Prime Minister.  A commission was formed to investigate the post election violence and prosecute the perpetrators but the Kenyan parliament could not agree on a modality which eventually led to mentioned perpetrators names handed over to the ICC in the Hague.

The two opposing  protagonist found each other at the ICC being accused of Crimes Against Humanity but unfortunately the ICC indictment was used to bring their tribes together and cement their relationship for their own defense. There´s no love lost between the two tribes and we have to wait and see if the bond stays strong after the acquittals.

The Kenya cases weakened the ICC

For the  ICC the Kenyan cases have done it more harm and very little good, as a court they have to learn from the mistakes and failures so that in future the investigators and prosecutors can build and present much stronger and resilient cases.

For the post election violence victims it´s been double jeopardy having their hope for justice come tumbling down upon their broken souls, just like president Kenyatta said ICC only gave the victims false hope. As elections approach in 2017 many across the country remain traumatized either as victims, having lost loved ones or having lost property and with the last glimmer of hope gone they have nothing more to loose.

Peter  Omondi