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From Gatundu to The Hague: The road Uhuru has travelled

By Nzau Musau Updated Saturday, October 4th 2014 at 23:11 GMT +3
President Uhuru Kenyatta with his mother, Mama Ngina Kenyatta. TOP: Bishops pray for Uhuru and his wife, Margaret, at the Gatundu Stadium during a service for him, Deputy President William Ruto and other suspects going to The Hague. [PHOTOS: FILE/ STANDARD
 President Uhuru Kenyatta with his mother, Mama Ngina Kenyatta. TOP: Bishops pray for Uhuru and his wife, Margaret, at the Gatundu Stadium during a service for him, Deputy President William Ruto and other suspects going to The Hague. [PHOTOS: FILE/ STANDARD

Kenya: On a bright Monday in Gatundu four years ago, mother and son embraced in an emotional prayer witnessed by thousands of people.

The day was April 4, 2011. The venue was Gatundu, the birthplace of Kenya’s founding  President Jomo Kenyatta. His son, Uhuru Kenyatta, was about to take a flight to The Hague, Netherlands, to answer to five counts of crimes against humanity among them rape.

None of the heavyweights who attended the rally, including former Vice President Kalonzo Musyoka, knew the emotional weight of the situation at hand.

None of the politicians who spewed anti-ICC (International Criminal Court) venom could feel the pain of a mother – long bereft of the old Jomo, and about to release her first born son to a foreign court thousands of miles away from home.

And so it was, after all the rhetoric and harangue from the politicians, that Kenya’s pioneer First Lady strode forward, called out her son, held him close, and chanted solemn incantations to the Almighty to protect her son; a child following the footprints of his father.

She then turned to his co-accused, then Eldoret North MP William Ruto, and interceded for him as well.

Confirmation of charges

A few days later, both men showed up at the ICC, accompanied by close family members and hordes of politicians, for confirmation of charges.

The Gatundu prayer rally, beamed to millions of Kenyans on television, not only set the political tempo but also heralded the beginning of multi-faceted moves to rescue the two from the jaws of a cold jail abroad.

Two years earlier, what had started as grand-standing between the Orange Democratic Movement (ODM) and Party of National Unity (PNU) over who was most responsible for the post-election violence of 2007/2008 had led the two rival political formations to dare each other with the ICC.

Both sides, PNU led by former minister Martha Karua and ODM led by Prof Anyang’ Nyong’o, dared to take each other to ICC to answer for the violence. This played out in the full glare of international media, and The Hague soon got sucked into the debate.

Irked by the violence and the blame game of the politicians, civil society groups wrote letters to the ICC and presented their raw reports to the prosecutor for perusal. The blame game ensured that accountability for the violence became a key issue in Kenya’s search for peace.

On February 1, 2008, Kofi Annan, the chairman of the mediation team, witnessed the first agreement between the two warring sides, the agenda for dialogue and reconciliation.

 

The agreement signed by Karua on behalf of the ‘Government/PNU delegation’ and Musalia Mudavadi for the ‘ODM delegation’ committed the country to a four-point agenda: Immediate action to stop the violence and restore fundamental rights and liberties; immediate measures to address the humanitarian crisis, and promote healing and reconciliation; overcoming the political crisis; and tackling long-term issues and solutions.

The issue of the post-election violence, couched under the term “addressing transparency, accountability and impunity” fell under the “long-term issues and solutions” also popularly known as agenda four.

On February 5, then ICC prosecutor Louis Moreno Ocampo issued a one-paragraph press statement announcing his now controversial presence in the matter:

“Kenya is a state party to the Rome Statute. The OTP (Office of the Prosecutor) considers carefully all information relating to alleged crimes within its jurisdiction committed on the territory of states parties or by nationals of states parties, regardless of the individuals or groups alleged to have committed the crime.?”

Under the February 1 agreement, the Commission of Inquiry into the Post-Election Violence, which later came to be known as the Waki Commission, was formed.

The agreement signed on March 4, 2008, by Karua, Sam Ongeri, Mutula Kilonzo and Moses Wetangula for ‘Government/PNU’ and Mudavadi, Ruto, Sally Kosgey and James Orengo for ‘ODM’ gave the commission three original mandates.

The first was to investigate the facts and surrounding circumstances related to acts of violence witnessed after the 2007 election. Second to investigate the actions or omissions of state security agencies during the violence and, finally, to recommend legal, political or administrative measures as necessary, “including measures to bring to justice those persons responsible for criminal acts”.

By November 2008, the Waki Commission was done with its work, and presented the final report to former President Mwai Kibaki and former Prime Minister Raila Odinga, who committed themselves to implementing the recommendations.

However, the two did not receive one thing; a secret envelope containing a list of persons the commission believed to be most responsible for the violence. Justice Philip Waki, the chairman of the commission, handed the envelope and accompanying evidence to Annan and his Panel of Eminent African Personalities for safe-keeping.

Implementation of the report started in earnest with Kibaki and Raila signing an agreement to set up a special tribunal, as suggested by the commission, that December. Their endeavour, however, ran into foul winds as MPs began to oppose the move.

On February 12, 2009, MPs denied quorum to the initial Bill setting up the local Special Tribunal, arguing that it could be used to settle political scores, among other reasons.

 

“The overall goal of many MPs was to use as many delaying tactics as possible to ensure that no one would ever be held accountable for the post-election violence. Amidst the pretense of establishing a Special Tribunal while doing nothing and attempting to buy time, Annan gave Kenya two extensions to set up the tribunal, one until April, and another until August 2009,” Dr Susanne Mueller, from Boston University’s African Studies Centre, recently wrote in the paper ‘Kenya and the ICC: Politics, election and the law’.

Before the August deadline could elapse, the Kenyan Government sent a delegation to the ICC to broker a new deal on the matter. The delegation comprised Mutula, Orengo, then Attorney General Amos Wako, then assistant minister for Justice William Cheptumo, then Justice Permanent Secretary Amina Mohamed and Raila’s senior adviser, Miguna Miguna.

In the new deal brokered with Ocampo on July 3, 2009, the delegation agreed to set up “a special tribunal or other judicial mechanism adopted by the Kenyan Parliament”, failure to which the Government would refer the situation to the ICC by September.

In the ensuing machinations and delays, Annan grew tired and handed the secret envelope and material to Ocampo as soon as the government delegation came back to Kenya.

Shortly thereafter, on July 30, a full Cabinet meeting held in State House discussed the Special Tribunal, referral to ICC, withdrawal from the Rome Statute, use of local courts, and establishment of a special High Court division.

It rejected all these options, and instead settled on Truth, Justice and Reconciliation Commission to sort out the matter of post-election violence. The explanation given was that the Government was taking into account the need to create “an enabling environment for the ongoing reform agenda”.

“The Cabinet was concerned that while it will not stand for impunity in the pursuit of justice, the country should equally pursue national healing and reconciliation. This does not in any way reduce its desire to punish impunity,” a Cabinet statement read by Kibaki said.

September came and went. Kenya did not refer the matter to the ICC as agreed.

Ocampo came to Kenya on November 5 to review the progress with Kibaki and Raila. He whiled away time at Nairobi National Park, visiting orphaned cheetahs as Kibaki and Raila refused to refer the matter to the ICC.

On the same day he met Kibaki and Raila (November 5), Ocampo wrote to the ICC judges, indicating his intention to submit a request to begin investigations in Kenya.

On the day he went to the national park (November 6), the ICC top judges assigned the matter to judges Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser.

On March 31, 2010, the judges allowed Ocampo to proceed. On December 15, 2010, as Kenyans prepared for Christmas, Ocampo dropped his bombshell, naming six Kenyans, among them Uhuru, as the most responsible for the post-election violence, and requested the court to summon them.

 

On March 8, 2011, the six were summoned to appear at the Hague-based court on April 7 and 8. It is on the basis of these summonses that the Gatundu prayer meeting was held.

Before the prayers, activities had begun in earnest at top levels of government to rescue Uhuru.

On March 31, the Government filed an inadmissibility challenge with the court through two British lawyers, Geoffrey Nice and Rodney Dixon. The hurriedly packaged challenge was, however, doomed. Two months later, on May 30, 2011, the judges threw it out.

The Government appealed the decision, but this also failed.

Afterwards, the Government embarked on a political route, asking the UN Security Council to defer the two cases. This entailed ‘shuttle diplomacy’ undertaken by Musyoka and rallying the African Union behind the cause.

At the court, the accused used all opportunities to lodge challenges to stall the cases.

Despite firing on all cylinders, little changed. The cases were confirmed by the judges on January 23, 2012, and Uhuru committed to trial.

Left with no choice, the Government formed a committee to advise on the way forward on the ICC cases.

The committee comprised of Nice and Dixon, Justice (rtd) Benna Lutta, Godfrey Musila, Lucy Kambuni, Henry Mutai, Paul Mwangi, Waweru Gatonye, Grace Wakio and Betty Murungi.

In its final report, the committee advised the Government to, among other things, block the ICC from using ‘state security’ materials to indict the accused. They recommended the appointment of a special prosecutor to try the accused in Kenya before their trial began in The Hague.

The team also advised that the accused could lodge a fresh admissibility and separate jurisdiction challenge.

United since the Gatundu prayer meeting, Uhuru and Ruto, under the ‘dynamic duo’ ticket, won the 2013 election and ascended to the country’s top offices. In their first year in office, the Government drafted wide proposals to amend the Rome Statute, which are still pending in the ICC system.

Kenya also proposed amendments to ICC’s rules of procedure and evidence granting trial in the absence of an accused option. The proposal was overwhelmingly adopted last year at the Assembly of State Parties giving the pair a lifeline.

The AU came out more strongly on the cases, and passed a resolution asking Uhuru to stay put. Since he was inaugurated as Kenya’s fourth President, Uhuru has not appeared at The Hague.

Despite all that has been done, including amendment to the rules and an AU resolution that no sitting head of state should appear before ICC judges, nothing – it appears – can stop the eventuality of President Uhuru Kenyatta’s appearance at the ICC courtroom on Wednesday.