The International Criminal Court’s (ICC) ruling on Monday confirmed that four prominent Kenyans will face trial for crimes against humanity allegedly committed following the 2007 general elections. Uhuru Kenyatta, Deputy Prime Minister and Minister for Finance, has since stepped down from his finance role while Francis Muthaura, the cabinet secretary, has also resigned.
Kenyatta and William Ruto, former Higher Education Minister, are also prospective presidential candidates in the 2013 general elections and it is uncertain how the ruling will affect their ambitions. The fourth suspect is Joshua Arap Sang, a radio journalist.
A debate is now raging in Kenya over whether Kenyatta and Ruto, who according to the latest opinion poll would each garner 22% and 10% of the vote, and come second and third respectively, will be able to run for the presidency. Prime Minister Raila Odinga is the frontrunner with 32%.
The violence in 2007 erupted after incumbent President Mwai Kibaki was declared the winner of the general elections which Raila Odinga and the Orange Democratic Movement (ODM) claimed they had won. Violent clashes between Kibaki and Odinga’s supporters followed, leading to the deaths of over one thousand people and saw thousands evicted across the country.
Kenyatta and Ruto are alleged to have been indirect perpetrators of the violence and there is uncertainty over whether either could constitutionally be elected to the role of president.
Following the ICC ruling, both candidates separately confirmed that they were still in the race for presidency. And Trade Minister Chirau Mwakwere said immediately after the ruling that the political struggle for the higher office should continue - claiming the two accused candidates were innocent until proven guilty. On the other hand, Justice and Constitutional Affairs Minister Mutula Kilonzo argued that allowing the suspects to run would be an act of impunity.
According to Kilonzo, the decision over whether or not Kenyatta and Ruto will be able to contest the general elections will be made by a cabinet sub-committee set up to advise the government on ICC matters.
But George Saitoti, Internal Affairs Minister and chair of the seven-strong sub-committee dismissed this suggestion, claiming “I find the story totally misleading, and let it be understood very clearly that my committee does not have any mandate to deal with any judicial matters within the International Criminal Court”. Rather, Saitoti clarified, the committee is restricted to dealing with liaison matters.
Even if the sub-committee had the power to make a decision, however, the legitimacy of its debate would be under question given that it contains two presidential candidates and cabinet ministers from the ODM, both of whom stand to gain if Kenyatta and Ruto failed to run.
This has set the stage for confrontation, which might be accentuated by the fact the two have a significant backing by Kikuyu and Kalenjin people.
There has been much controversy around the ICC decision with accusations flying in from all sides over the uncertain legal and political dimensions of the ruling.
It is not difficult to see that the departure of the second and third most popular candidates in the presidential race would benefit Raila Odinga, and this has not gone unnoticed with several commentators suggesting the Kenyan prime minster had a hand the indictments. MP Kiema Kilonzo among others has claimed the ruling was purely political in nature and suggested some Kenyan leaders had a hand in it.
The second day after the ruling, over 40 MPs issued a statement which said of the ICC’s ruling, “it is clear that there was a deliberate plan to block Uhuru and Ruto from running from presidency”.
“We are still in shock, we are waiting to see where it will end but we think that the allegations are fabrications which should have been dismissed by court and we do not rule out a political hand in the court's ruling,” said Major Sei.
Meanwhile, civil society groups have also been making their feelings known and a court case has recently been filed by voters and civil society groups seeking to block the charged presidential candidates. The petitioners argue that ICC’s confirmation renders Kenyatta and Ruto ineligible for public office, citing Article 6 of the constitution on leadership and integrity. “We are seeking a declaration that the candidature of Mr Kenyatta and Mr Ruto for the Presidency would be a recipe for chaos and perpetuate the culture of impunity in the country,” said their lawyer Antony Oluoch.
The situation in Kenya is changing rapidly and much remains uncertain over Kenyatta and Ruto’s presidential bids and what these recent events will mean for the general election. And with lawyers, politicians and civil society all weighing in, the waters are getting ever muddier and the future ever more unpredictable.
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