How President Mwai Kibaki has Bungled the ICC Cases of Uhuru, Muthaura

Kenyans have complained about President Mwai Kibaki’s inability to listen and take account of the public sentiment. To President Kibaki and his supporters, this frowning on Kenyans may appear as strength of character. But now it is threatening the careers (and lives) of his closes allies – Deputy Prime Minister Uhuru Kenyatta and the Head of Public Service Francis Muthaura. And even worse, it is threatening suck Mr. Kibaki himself into the fire.

First it was the selection of members of the Electoral Commission of Kenya prior to the 2007 elections. He decided to ignore the complaints that were raised after his unilateral appointments. And the commissioners went ahead to mess up the elections. The “results” were announced at a secret place with only the government-owned Kenya Broadcasting Corporations TV cameras as witnesses. Seconds after– literally – Kenyans were stunned to see Mr. Kibaki being sworn in as the President – at night!

This is how Mr. Samuel Kivuitu, the then chairman of the elections supervisory body describes the incident:

“After announcing the results a fellow appeared before me and requested me to hand over to him the president’s certificate. I told him that that is only done to the winner personally and directly.

“The fellow then informed me that Hon. Kibaki was waiting to be sworn as the President and the Chief Justice was present, duly robed, for the assignment.  He requested me to take the certificate there. I had no business retaining the certificate. It was not mine. The law says it be given at the place the President is to be sworn. I obeyed the law and took it there. “

Violence, Death and Silence

Again there were complaints – loud and violent. People were killed, maimed and others displaced. The country was on fire. And President Kibaki stayed put – or so it appeared (the actual situation being the subject of the International Criminal Court at The Hague, as explained below).

International Community

When things become impossible to ignore because the international community (represented by Dr. Kofi Annan, former UN Secretary General) joined in the outcry, Mr. Kibaki reluctantly agreed to the current government framework in which he shares power with the opposition leader, Prime Minister Raila Odinga.

Frustrating Investigations

But on the issue of investigating criminal responsibility for the violence that followed the bungled elections,   Mr. Kibaki has remained adamant – trying as much as he can to frustrate the effort. First he refused to set a credible court to try those who might be responsible even when the International Criminal Court, which had come in at the popular invitation of Kenya citizens, gave him time to do so.

Then there were efforts to be defiant, inviting into Kenya, people like the North Sudan President al Bashir who is wanted by the ICC for crimes against humanity in Darfur. After that Mr. Kibaki tried to use the Africa Union to discredit the ICC claiming it was targeting African heads of state. Finally, he tried to appeal to world leaders, sending his Vice President Kalonzo Musyoka all over the world using enormous resources when millions of Kenyans were starving.

Failure and No Stopping

Naturally, all these efforts failed. But the failure didn’t stop Mr. Kibaki.  Instead –  and again against a near universal public outcry – he used enormous public funds to employ the most expensive international attorneys to stop the ICC case. And when that failed, he still went ahead to retain the expensive lawyers to defend Uhuru and Muthaura at The Hague court.

Now the ICC has ruled that Uhuru, Muthaura , together with Eldoret North member of parliament Mr. William Ruto and a Kass FM radio journalist Mr. Joshua arap Sang have a case to answer  on crimes against humanity at the Hague court.

But Mr. Kibaki has yet to run short of options. He has now instructed the newly appointed Attorney General Prof. Githu Muigai to study the ICC judgment and advice him on the next course of action – which advice, every Kenyan already knows – to appeal against the judgment.  Mr. Kibaki apparently hopes that  Prof. Muigai has influence he can use to turn the tables for Uhuru and Muthaura. And if such influence is missing,  Mr. Kibaki perhaps expects  Prof. Muigai  write an internationally credible “academic treatise” to make null and void the powers of the ICC.  Unfortunately for Mr. kibaki, Prof. Muigai has no magic- and no knowledge or skill – that can bring the desired results.

End Result

What Mr. kibaki’s efforts have done so far, is to “pin” down Mr. Uhur and Mr. Muthaura as guilty as charged by the ICC.  Continuing the efforts can only worsen their cases – and eventually, perhaps, suck Mr. Kibaki himself, into the case.

And that will be thanks to his disdain of popular opinion of the people of Kenya, currently reflected in his continuing to keep Mr. Uhuru and Mr. Muthaura in their jobs in the public service contrary to the Constitution of Kenya.