Kibaki plan to block ICC meant to protect legacy


Kenyan President Mwai Kibaki’s drive to block post-election violence cases at The Hague is more to prevent evidence emerging that could taint him than what is widely seen as a plan to shield cabinet allies.

Analysts and political commentators say Kibaki has not been known to go to war on behalf of political allies in a long career that spans Kenya’s independence era. They say that despite appearing indecisive at certain times, Kibaki is a strategist who can play hard ball when pushed.
“There is no precedent in the history of the president to protect anyone other than himself. He is not known to stick his neck out for anyone, except Kibaki,” said John Githongo, the president’s former anti-graft czar who turned whistleblower and exposed one of Kenya’s biggest corruption scandals.

Prominent among the six suspects are Finance Minister Uhuru Kenyatta, son of Kenya’s founding father Jomo Kenyatta, William Ruto, the Higher Education Minister who has been suspended to fight a corruption case, Cabinet Secretary Francis Muthaura and former police chief Mohammed Hussein Ali, Reuters reports.

International Criminal Court chief prosecutor Luis Moreno-Ocampo says he did not find evidence against Kibaki and Prime Minister Raila Odinga to charge them with masterminding the post-election violence.

But he named close Kibaki aide Muthaura and Odinga loyalist Henry Kosgey, the Industrialisation Minister suspended to fight graft charges, a sign that some culpability could go higher.
“The cabinet secretary is a suspect and he takes orders from one person. This amounts to an indictment of the president,” said Githongo.

Kibaki has asked the U.N. Security Council to defer the trials for a year and then have the cases heard in Nairobi — a plan backed by the African Union — and is also challenging the right of the ICC to try the cases.

Odinga, however, has opposed the moves to stop Hague trials, sharply splitting the coalition cabinet.

The presidency said Kibaki had nothing to hide.
“It’s not the president who is accused. What the government is asking for is a chance for local redress through the legal mechanism (local tribunal) being put in place because Kenya is not a failed state,” the presidential press service said.


Opinion polls show most Kenyans want the six suspects tried in The Hague because they have little faith in their own corrupt judiciary.

Investors and foreign donors are following the issue to gauge how much political reform Kenya’s leaders can stomach. There is also concern that if impunity is not punished this time, the next polls due in 2012 could be violent.

More than 1,220 people were killed in the violence and 350,000 were displaced, severely denting Kenya’s reputation for stability in a turbulent region, after then rival Odinga accused Kibaki of stealing the vote in the closely fought elections.

All the suspects, who have said they will obey summonses to go to the ICC on April 7 and 8 for an initial appearance, face possible charges of crimes against humanity. Should they be indicted, evidence at their trials could implicate others.

Politicians who have known Kibaki for decades say the leader of the east African nation is worried that should ICC trials go ahead, he would probably no longer have the protection of being head of state, and is wrestling to save his legacy.
“In a year and a half, Kibaki will be out of office and will have no protection. By then the cases could be warming up and this could be a reason (to try to prevent the cases),” said Joseph Munyao, one of Kibaki’s long-time political allies.

Munyao’s political ties with Kibaki go way back. They launched the Democratic Party (DP) to contest Kenya’s first multi-party election in 1992 when Kibaki quit the cabinet after falling out of favor with former President Daniel arap Moi. Though no longer in Kibaki’s cabinet, Munyao is the DP’s leader.
“I don’t agree with what Kibaki is doing. I attribute this to bad and selfish advisors. It is an error that has damaged his legacy, and it looks like the damage is irreparable,” he said.


Human rights lawyer Harun Ndubi said the case could widen, while a new prosecutor to replace Ocampo — whose nine-year term ends in June next year — could add new evidence and suspects.
“I have not understood why he has put his neck on the chopping block for these guys unless he has a personal fear, such as a wider net for suspects being cast,” said Ndubi.

Rights groups fear the real intention of transferring the cases to Nairobi is to let the suspects go free, a charge the government strongly denies.
“Since independence in 1963, impunity has been the second nature of Kenya’s ruling clique. At a personal level, Kibaki is unable to accept that this clique can be held accountable,” said former legislator and prominent lawyer Paul Muite.
“At another level, he must worry what Muthaura, Ali and Kenyatta are going to say at the ICC if the trials go ahead.”

Political commentator Kwamchetsi Makokha said resisting the trials was a step in a wider plan to end cooperation with the ICC, after parliament voted to exit from The Hague court.
“This is the plan, even if the cost could mean Kenya becomes a pariah state. A part of government is determined to play rogue, on this one they are determined to play rough,” he said.

Muite, however, said Kibaki was unlikely to take that risk.
“I don’t see Kenya surviving without foreign partners and lenders, nor will prominent personalities risk their assets being frozen or contemplate travel bans,” he said. “Eventually, at the last minute, the government will turn tail.”