William Ruto - former Minister of Higher Education and key ODM figure - attends the ICC pre-trial hearing at The Hague

It has been argued that Kenyans are interested in the ICC trials¹ because it’s the first time any senior Kenyan has been held to account for serious wrongdoing.

This is usefully wrong. Throup and Hornsby² once said, more acidly than was absolutely necessary, of Kamlesh Pattni’s activities that “the chance of his not having had top-level political support for [them] is nil.” Their view was confirmed by the Report of the Judicial Commission of Inquiry into the Goldenberg Affair, paras. 845 and 847, which proposed investigation of President Moi, and held Professor George Saitoti, who at the time of the scandal was Vice-President and Minister for Finance, responsible, with others, for it. Professor Saitoti went to court; in a landmark decision,³ he achieved a reversal of the report’s recommendation. This latter better explains Kenyan public interest in the ICC: it’s the first time that senior Kenyan politicians have faced the consequences of being held responsible for wrongdoing.

Public interest is also heated by the debates which caught fire in the aftermath of the violence: was it planned? When did it start? Who were its targets? Who was involved and why?⁴ The findings of the court so far confirm answers to those questions that many Kenyans have long suspected but have been unable to show for fear, ignorance or party spirit. The pre-trial chamber, for example, found that the prosecutor’s evidence justified the view that significant portions of the violence, and consequent death and forcible transfer of population, were perpetrated as part of ODM’s political program:⁵

41. The Chamber finds that there are reasonable grounds to believe that from 30th December 2006 to the end of December 2007, Ruto, Kosgey and Sang, held a series of meetings in which they agreed on a common plan to punish PNU supporters and evict them from the Rift Valley, with the ultimate goal of gaining power and to create a uniform ODM voting block.

It also found that the murders in Naivasha and Nakuru were planned, and that they rose to the level of crimes against humanity:⁶

25. With respect to the alleged underlying acts constituting crimes against humanity, the Chamber is satisfied, on the basis of the examination of the facts referred to in paragraph 17 above, that there are reasonable grounds to believe that murder and forcible transfer of population as acts constituting crimes against humanity were committed as part of the attack against the civilian population in Nakuru and Naivasha.

Together, these findings tear apart the exculpatory stories that have been spun since these events. In the first case, a variety of ODM partisans have attempted to justify, or at least excuse, their share of the violence on the ground that it was a spontaneous – hence unplanned – response to the Electoral Commission of Kenya’s declaration.⁷ This was always extremely unlikely, and we now have something approaching legal confirmation of the point.

In the second case, the main justificatory argument heard from PNU partisans for the counterattacks in the Rift Valley and elsewhere was that they were justified attempts at self-defence. The chamber’s finding that they constituted crimes against humanity, on account of their planning and the selection of victims, shows that they were unjustifiable. Since they were directed against civilians who had nothing to do with the preceding violence, they were not acts of self–defence.

All this in a public and neutral forum, so that there can be no serious argument that the finders of these facts are biased.

The political consequences are less obvious; perhaps the clearest is the de-communalisation of responsibility. Much of the harm of the crimes consists in the hatred they stirred, since, in the absence of clear evidence of individual responsibility, entire groups were assumed responsible for the acts of a few of their own.⁸ ⁹ The court has now credibly singled out individuals”” the right ones, let’s hope””as the main perpetrators; attention has turned to their personal culpability.

The majority’s rejection of Judge Hans-Peter Kaul’s understanding of the network that committed the crimes has also helped. He had seemed to argue¹â° that the network was an  ethnic one, which could not therefore constitute an organisation for the purposes of Article 7 of the statute governing the prosecution of the crimes with which the suspects have been charged. The majority preferred the view that the network which committed the crimes constituted an organisation within the meaning of Art. 7. Presumably, it follows that the network wasn’t simply an ethnic association””a finding of some political importance, since it’s not hard to imagine what damage would have been done had the decision gone the other way.

But the decommunalisation has begun¹¹: much of the informal argument, online and off, asks who, rather than which community, was responsible for what. Admittedly, that’s a crude measure; a recent set of interviews¹² shows it’s not completely hopeless. A less crude metric is the recent poll which reported growing approval for the proceedings in the ethnic constituencies of Uhuru Kenyatta and William Ruto.¹³ Both candidates are now the leading politicians in their communities, which might be expected to oppose the trials and the court, since, given latent mistrust, a decrease in one’s patron’s power leaves one more vulnerable to (presumed hostile) ethnic others.¹â´ Instead, both Uhuru and Ruto have found renewed support as has the court.¹âµ Their communities are now discounting the consequences to themselves of their champion’s guilt; a turn best explained by a decline in mistrust.

Finally, it seems that post–election violence will be a key issue at the next general election. This will be the case whether the charges are confirmed or not. If confirmed, there will be further revelations, as the Prosecutor appears to be holding back evidence; its impact is hard to estimate, but impact there will be. If not, then those candidates who escape the reach of the court can be expected to make the most of it: perhaps by blaming the Prime Minister for their misfortune.¹â¶ Either way, the ICC will matter at the polls, whenever they are.

Daniel Wawaeru is a commentator on Kenyan politics.

References:

¹The cases are numbered ICC-01/09-02 and ICC-01/09-01. Public materials are collected online at http://www.icccpi.int/Menus/ICC/Situations+and+Cases/Situations/Situation+ICC+0109/Situation+Index.htm.

²Throup and Hornsby, 1998 p. 563

³See the judgement in Republic v Judicial Commission of Inquiry into the Goldenberg Affair &  others ex-parte George Saitoti (Misc. Civ. Appl. 106 of 2006).

⁴Murunga (2011) is instructive.

⁵Trendafilova (J) and Tarfusser (J), 2011a, para. 41.

⁶Trendafilova (J) and Tarfusser (J), 2011b, paras. 25 and 19.

⁷It has also been argued that the violence in the Rift Valley did not constitute ethnic cleansing. But it is clear, from para. 31 of the pre-trial chamber’s Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, that the evidence supports the opposing view.

⁸But see Njogu (2009) whose testimony from victims, many of whom were willing to forgive their attackers and their communities even before the court process, is encouraging counter-evidence.

⁹Kasara (2011, p.10), relying on Afrobarometer survey data, finds that even before the elections, interethnic trust was very low: only Nigeria, of 17 African countries sampled, did worse. Dercon and Gutiérrez-Romero (2010, p. 19, and Table 4 on p.35) found sharp declines in trust across and within ethnic groups after the elections. Their survey was taken before the ICC process began.

¹â°Dissenting Opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II’s “Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang”, paras. 45–51.

¹¹Muga has a very different view.

¹²Standard Team, 2011.

¹³Synovate IPSOS, 4. Nov. 2011. at http://www.synovate.co.ke/.

¹â´The point is sometimes made fairly explicitly, as in Uhuru’s campaign speech in Murang’a: http://www.youtube.com/watch?v=GWfPqokno.

¹âµI’m relying on the presidential polling: http://www.synovate.co.ke/.

¹â¶You’ll notice my assumption that at least some of the charges will be confirmed. Their inevitable politicisation is substantially eased by the Prosecutor’s recent admission that political considerations matter for his selection of cases: see http://opiniojuris.org/2011/11/07/there-is-a-double-standard-at-the-icc/.