ICC: How charges turned into a blessing in disguise

President Uhuru Kenyatta when he was welcomed by Kenyans after he appeared before The Netherlands Hague-based International Criminal Court(ICC). [File, Standard]

The story of Uhuru Kenyatta’s rise to the presidency is incomplete without the mention of the International Criminal Court (ICC) and how it nearly stopped his bid in 2013.    

Uhuru, alongside then Eldoret North MP William Ruto, were charged with crimes against humanity stemming from the 2007-2008 post-election violence. The prosecution, led by Luis Moreno-Ocampo had accused them of bearing greatest responsibility in the chaos, which led to rape, murders and forcible transfer of populations following the disputed presidential election between Mwai Kibaki of PNU and ODM’s Raila Odinga.

Calls for justice in the wake of post-election killings – more than 1,000 people were killed and thousands displaced – led to efforts by the unity government of President Kibaki and Prime Minister Raila to form a local tribunal to try suspected masterminds.

But their efforts were subdued by campaigns from within Parliament to refer the matter to the ICC given that in 2005, Kenya ratified the Rome Statute that set up the international court. Then came sustained calls of “Don’t be vague, let’s go to The Hague.”

MPs failed to pass three requisite bills that would have led to the creation of a local tribunal. By this time, the Justice Phillip Waki-led commission investigating the chaos filed its report which was handed over to former UN Secretary General Kofi Annan, who was the chief mediator in the post-election crisis.

Come December 15, 2010, Moreno-Ocampo named Uhuru, then a deputy Prime Minister, and five others as suspected masterminds. The “Ocampo six” of Uhuru, Ruto, Civil Service head Francis Muthaura, police boss Hussein Ali, ODM chairman Henry Kosgey and journalist Joshua Sang were indicted by the ICC’s Pre-Trial Chamber II on March 8, 2011.

Confirmation of charges hearing took place from September 21 to October 5 2011. While three of the poll chaos suspects were variedly let off the hook, the cases against Uhuru, Ruto and Sang continued.

Joint ticket

And towards the end of President Kibaki’s term, Uhuru and Ruto faced a suit in Kenyan courts that sought to block them from contesting the presidency on a joint ticket on grounds of integrity and the ICC charges.

However, on February 15 2013, the courts dismissed the integrity case, paving the way for them to run. They ran on March 4, 2013 and won, their victory further affirmed by the Supreme Court.

On December 5, 2014, Uhuru’s charges were withdrawn due to insufficient evidence, with the case closed unless and until the court submits new evidence. Prosecutor Fatou Bensouda accused the Government of refusing to hand over crucial evidence. This happened as MPs initiated a sham process to withdraw Kenya from the Rome Statute. Observers say the ICC cases, in a significant, way helped shape Uhuru’s political journey. Besides the ‘victimhood’ card that came out of it and helped shore up support for the Jubilee alliance, the charges offered the much-needed bond between the ‘dynamic duo’ and their supporters.

“Uhuru’s supporters considered him a ‘messiah’ of a kind,” says lawyer Odete Oyieko. “Being indicted and the eventual efforts to fight off the charges rewarded Uhuru and Ruto with fanatical following.”

The ICC became a common enemy, with Ruto at one point saying: “The President said the ICC matter is a personal challenge but we have shown them that it is a personal challenge for 40 million Kenyans.”

The Jubilee duo projected ICC as a tool of the West being used by allies of Raila and Kalonzo Musyoka of the CORD alliance to ‘fix’ them and lock them out of the Kibaki succession matrix. They urged their supporters to reject “neocolonialism”.

In October 2014 before their jubilant supporters, there was a rare political moment when Uhuru invoked Article 147 (2) of the Constitution to momentarily hand over power to Ruto on the eve of his status conference at The Hague. Each time Uhuru and his deputy returned from The Hague, they would be welcomed by thousands of ecstatic supporters lining up the roads from JKIA to into Nairobi’s CBD.

And by having been the first sitting head of state to appear before the ICC, it helped propel Uhuru’s image internationally, with the Africa Union coming to his defence and accusing the court of being used by foreign powers to humiliate African leaders.