Category Archives: Kenya

President Kenyatta escapes ICC prosecution in Kenya

It has been an eventful few weeks for Kenyan President Uhuru Kenyatta, whose case at International Criminal Court was dropped on 5 December 2014. However, Deputy President William Ruto still has charges to answer at The Hague, leaving the president in a difficult position domestically.

The collapse of the Kenyatta trial did not come as a surprise. Commentators have been discussing the weakness of the ICC’s case against Kenyatta for some time. It was always a case based on limited evidence, and therefore heavily reliant on a small number of key witnesses. Many of those witnesses have now recanted their statements, in part because of the absence of an effective and independent witness protection programme to safeguard key informants. Combined with the refusal of the Kenyan government to hand over important evidence, this undermined the prosecution’s case from the very start. According to Human Rights Watch, the Kenyan government had acted as a roadblock “impairing the search for truth”.

As early as December 2013, the ICC’s Chief Prosecutor Fatou Bensouda told the Court that she did not have the necessary evidence to prove Kenyatta’s guilt. She was given more time to procure it, but because the ICC has no investigatory capacity within Kenya this search was doomed to failure. On 8 October 8 2014, the Prosecutor was forced to admit that she had no new evidence that would tip the balance against the president. She was informed by the judges of the ICC Trial Chamber that while they would not support Kenyatta’s application to terminate proceedings there and then, she must find the evidence or request the judges to withdraw the case.

When the evidence was not forthcoming, it became inevitable the case would be withdrawn. Bensouda made one final attempt to have it indefinitely adjourned, so that proceedings could be reopened in the event that new evidence came to light, but this was rejected by the Chamber, who criticized the Prosecutor for failing to ask for evidence that she later claimed was essential earlier in the trial. For many, the collapse of the Kenyatta case is just the latest in a long line of ICC failings that demonstrate the inability of senior lawyers to understand the political context within which they operate.

President Kenyatta was reportedly “excited” and “relieved” at the news. Having always denied the charges, he said that he felt “vindicated” and that his “conscience was absolutely clear”. However, Kenya’s Deputy President, William Ruto, remains on trial. The Ruto case has always been thought to be stronger than the Kenyatta case, in part because it relies on a broader range of evidence and so is less vulnerable to the intimidation or bribery of a small number of witnesses. President Kenyatta is hoping that this case, too, will be dismissed, quipping “one case down, two more to go” on Twitter.

He may get his way. Many commentators remain skeptical about the strength of the Ruto case, especially now that the Trial Chamber has effectively rewarded the Kenyan government for its failure to comply with the Prosecutor’s requests by halting the proceedings against Kenyatta. But the short-term divergent trajectories of the two cases may cause domestic problems for the president. In many ways President Uhuru Kenyatta, a Kikuyu, and Deputy President William Ruto, a Kalenjin, are unlikely bedfellows. Their charges at the ICC relate to allegedly organizing violence on different sides of the 2007/8 ethnic clashes, and many members of their communities are deeply suspicious about their coalition, which is best conceptualized as a marriage of convenience. Although Kenyatta and Ruto managed to successfully bring their supporters together behind their “Jubilee Alliance” during the 2013 election campaign – thus pacifying the often volatile Rift Valley region, home to a Kalenjin majority and a Kikuyu minority – radicals on both sides have called for an end to the pact.

This tension places the president in a tricky position. Unless he campaigns hard to ensure that the charges against Ruto are also dropped, the Deputy President’s supporters will accuse him of conspiring to use the ICC to remove their man – and his potential rival – from the Kenyan political landscape. But if the president does work hard to ensure Ruto’s freedom, he will frustrate many of his own advisers, who fear that unless the Deputy President is removed he will one day succeed Kenyatta to State House, undermining their access to power. Squaring this circle while keeping his ruling coalition together will be one of the most difficult challenges facing the president in the early months of 2013.

Kenya – President Kenyatta introduces anti-corruption measures in Kenya

Following a series of major corruption controversies, the Kenyan President Uhuru Kenyatta announced a new anti-corruption drive earlier this month. On 1 September, Kenyatta launched a new scheme to biometrically register all civil servants in a bid to end the phenomenon of “ghost workers” – dead or non-existent workers who nonetheless draw government salaries. According to a government audit, such scams currently cost the government around $1 million a month.

President Kenyatta also announced the launch of a new website, www.president.go.ke/report-corruption, which enables ordinary Kenyans to upload evidence of corruption “directly” to the president. Through the site, Kenyans can anonymously share videos, documents and photos. The President has said that he hopes that these measures will encourage Kenyans to speak out about the corruption that they experience in their everyday lives. At present, Transparency International estimate that only about 3% of Kenyans do so.

The new measures were introduced after embarrassing corruption scandals undermined progress on two of the government’s flagship projects: the provision of one laptop to every child, and the construction of a Standard Gauge railway linking Nairobi and Mombasa. However, commentators have questioned how effective the new measures will be.

Given that most Kenyans do not report corruption, and the government has a poor track record of impartially investigating corruption allegations, it is unclear whether the opportunity to upload evidence “directly” to the president will prove to be attractive to a skeptical audience. Critics have accused the president of “window dressing”, pointing out that there is already considerable evidence of wrongdoing in the “one laptop” and “Standard Gauge railway” projects and yet little action has been taken.

Moreover, although “ghost workers” represent a significant drain on government resources, the most economically damaging form of corruption occurs through other processes, most notably import/export scams and procurement deals. Biometric registration and the launch of a new website are unlikely to impact significantly on this elite corruption, which typically involves a small number of individuals operating behind closed doors and takes some time to make it into the public eye.

Kenya – President Kenyatta embroiled in terrorism controversy

On 18 June, Kenyan President Jomo Kenyatta shocked domestic and international observers by claiming that a spate of terrorist attacks were not organized by the radical Islamic group al-shabaab, but were in fact the work of “local political networks”. Critics alleged that the President is seeking to manipulate terrorist activities in order to delegitimize and intimidate his domestic political opponents.

The crisis began on 15-17 June, when the coastal town of Mpeketoni was attacked twice in quick succession, leading to the death of over 60 people. The violence was particularly shocking for two reasons. First, it represented the largest loss of life terrorism in Kenya since the Westgate mall siege of 21 September 2014. Second, the failure of the security services to prevent the second raid – which took place just a day after the first – highlighted the inadequacy of the country’s anti-terror operation.

Al-Shabaab quickly claimed responsibility for the attacks. Sheikh Abdiasis Abu Musab, the spokesman for al-shabaab’s military operations, told Reuters that “We raided villages around Mpeketoni again last night” in retaliation for the presence of Kenyan troops in Somalia. Ominously, he concluded “Our operations in Kenya will continue.” International media and Kenyan citizens quickly accepted this version of events, which made President Kenyatta’s subsequent denial of al-shabaab involvement all the more surprising.

According to President Kenyatta, the attacks were “well planned, orchestrated and politically motivated ethnic violence against a Kenyan community, with the intention of profiling and evicting them for political reasons … This therefore was not an al-shabaab attack … Evidence indicates that local political networks were involved in the planning and execution of a heinous crime”. Although he did not say it explicitly, the President was suggesting that the attack was a deliberate attempt to drive out members of his own Kikuyu ethnic group from the coast.

Historically, there has consistently been considerable tension on the coast between groups such as the Somalis and the Oromos, coastal groups that support the secessionist Mombasa Revolutionary Council (MRC), and “upcountry” Kenyans who have settled at the coast and taken some of the best land. These tensions intensified during the 2013 general election, when “coastal” candidates feared that they might be defeated by rivals who received much of their support from “upcountry” voters. The government’s recent decision to extend land titles, and land politics in general, has further exacerbated divisions in some areas, because “some locals see the Kikuyus as interlopers, who have become rich after the government gave them land.”

Given that Mpeketoni is a predominantly Kikuyu town, and most of the people who died in the first attack were Kikuyu, President Kenyatta’s comments were not entirely without foundation. Moreover, his statement resonated with the concerns of many members of his community. Following election-related violence of the 1990s and 2008, when Kikuyus were targeted by other ethnic groups, the community is understandably unsettled by any attack that appears to deliberately pick out Kikuyu victims.

However, while inter-communal tensions clearly exist, and may have motivated some Kenyans to participate in the Mpeketoni attack, the President has provided no evidence for his assertion that the attacks were planned by local political networks. What seems more likely is that the impetus and planning for the attack came from al-shabaab, with some assistance from local actors. If this is correct, it raises the question of why the President would seek to deflect the blame from al-shabaab – Kenya’s number one enemy.

According to opposition leaders, the answer is that President Kenyatta is seeking to manipulate the terrorist attacks in order to undermine the position of opposition parties. Following a period of self-imposed exile in the United States, Kenyatta’s main rival, Raila Odinga, recently returned to Kenya. Even since, relations between Kenyatta’s government and Odinga’s Orange Democratic Movement (ODM) have deteriorated. Having failed to persuade the government to openly engage with his party over the numerous problems that marred the 2013 general elections, the ODM has embarked on a campaign of non-violent direct action. Most significantly, Odinga took the bold move of announcing that a rally would take place on 7 July – Saba Saba – a day that Kenyans associate with the mass protests against authoritarian rule that ultimately paved the way for the reintroduction of multiparty politics.

Despite government claims that this was an unsuitable time to call for mass protests, Odinga indicated he was determined to take his supporters to the streets unless Kenyatta responded to his demand for national dialogue by 6 July. In response, government officials warned that if Cord leaders do hold a rally they will do so “at their own risk”; a thinly veiled threat that harsh treatment would be meted out to anyone seen to threaten law and order. Ultimately, the 7 July rally did go ahead thereby providing an opportunity for Odinga to reveal a new 13-point reform agenda specifically targeting what he sees as the executive overreach of the Jubilee government. The attendance was neither particularly impressive nor embarrassing, and so has not radically changed the momentum of opposition politics. Despite some provocation, the police demonstrated considerable restraint, which helped to prevent an escalation of the protest.

Amidst this atmosphere of accusation and counter-accusation, opposition leaders claim that President Kenyatta’s attempts to draw a connection between terrorist attacks and “local political networks” is motivated by his desire to solidify his own position in the face of sustained criticism. If Kenyans can be persuaded that opposition parties represent a genuine security risk, it will be far easier to ban their activities and intimidate their leaders. However, while this strategy may play well with the President’s supporters, many of whom do not trust the ODM and have a strong antipathy to Odinga, it has served to further alienate his opponents and a number of prominent international donors, which is likely to further undermine the prospects for peace and political stability.