Web Exclusive: Seven Days in December

Kenya’s Parliament Rejects the International Criminal Court and the Citizens Reject Parliament

The International Criminal Court’s naming of six Kenyans suspected of committing crimes against humanity has opened up a gulf between members of the country’s political class and ordinary citizens. The sources quoted here decry the erosion of democratic gains in Kenya after parliament reacted to the naming of suspects by voting to withdraw from the International Criminal Court (ICC). This review of seven days in December (20-27) heralds the emergence of evermore forceful demands for a new democratic turn in Kenya.

December 28th is known by many as Innocents’ Day, or the Feast of the Day of Innocents. It commemorates the deaths of infants massacred in Bethlehem by King Herod, who had been told that a baby (Jesus) had been born who would one day challenge Herod’s rule. To protect his power, the king ordered the killing of all children under the age of two.

Innocents’ Day 2010 takes on a special meaning in light of recent events in Kenya. In a Christmas Day sermon, Mombasa Archbishop Boniface Lele reminded parishioners of Herod’s slaughter of the innocents. “Jesus was born in a situation of violence and if it was today, He will be born in an IDP (internally displaced persons) camp to empathise with us” (Nation Team, “Clergy ask politicians not to protect suspects from justice,” Sunday Nation (Nairobi), 26 December 2010).

Three years ago, between 28 December 2007 and the end of February 2008, some 1,500 Kenyans were killed and more than 500,000 evicted from their homes after a disputed presidential election. On 15 December 2010, the International Criminal Court named six men who chief prosecutor Luis Moreno-Ocampo suspects hold highest responsibility for the crimes committed in Kenya between December 2007 and February 2008. Ocampo requested that ICC judges indict them on charges of crimes against humanity. The suspects include three Members of Parliament, Uhuru Kenyatta, Henry Kosgey and William Ruto; the former Chief of Police, Mohammed Hussein Ali; the head of the Civil Service, Francis Muthaura; and a vernacular language radio show host, Joshua arap Sang.

If found guilty the suspects will become “hostis humani generis, or “enemies of humanity.” Ocampo’s news was received very peacefully by Kenyans, even in Eldoret, a presumed centre of tensions, where John Githongo reported the town as “totally cool, calm and collected” (20 December 2010).The press had covered the potential threats to the peace largely to the exclusion of the more vibrant, popular and widespread workings and gains of country-wide peace movements.

The post-election violence of 2007-2008 had a particular impact on women. Nairobi doctors who treated an estimated 500 rape survivors within the first weeks of the post-election chaos, said that 95% of these patients had been gang-raped. Scores of women were feared to have been infected with HIV.

At the same time, Kenyan women were the key peace makers both during and after those violent months. For instance, in early January 2008 at the height of ongoing attacks, two hundred women in the Nairobi slum of Kibera joined together across party and ethnic lines to march through the streets and call for peace and reconciliation.

A woman politician, who in January 2008 led healing circles at a camp for internally displaced people in the Rift Valley, asked displaced women when they felt they were “at peace.” The refugees answered that they had peace “when they are able to provide food, shelter and health to their families, including being able to educate their children.”

These are among the hundreds of peace initiatives that ordinary Kenyans launched in efforts to forestall further violence. Behind these initiatives are thousands of long-standing, multi-ethnic, social, cultural, ecological, spiritual and political organizations, both formal and informal, many founded and autonomously organized by women.

These peace initiatives did not stop in February 2008, when the post-election crisis was brought to an end by a negotiated settlement brokered by Kofi Annan. Annan helped construct a coalition government and secured assurances that the Kenyan parliament would set up a local process to try the masterminds of the post-election violence. If they failed to do so, Annan said, he would refer the Kenyan case to the International Criminal Court in The Hague. Annan’s willingness to refer the Kenyan case to The Hague was the first formal acknowledgment of suspected high-level culpability for the violence.

In 2008 and 2009, partisanship and fears of political interference kept lawmakers from coming to any kind of agreement on setting up a local tribunal. Consequently, the case ended up at The Hague. For the first time, those allegedly bearing “highest responsibility” for the eruption of election-related violence in Kenya (there were several previous elections with violence) were going to be brought to book.

December 2010 saw a dramatic erosion of the legitimacy of the Kenyan government. This followed upon the naming of the Ocampo Six. It was intensified by the astonishing reaction of Kenyan parliamentarians to the possibility of some of their members facing justice in The Hague.

Immediately upon the naming of the six alleged masterminds, President Kibaki declared that the suspects would not be asked to step aside or resign from their public posts, contrary to the new constitution’s high ethical bar for all holding public office. They would stay in office unless and until ICC judges confirmed the prosecutor’s charges against them, some time in early 2011.

This was quickly followed by an announcement by Prime Minister Raila Odinga’s party, the Orange Democratic Movement (ODM), offering six suspects “moral” support. Within days, politicians from across party lines called for harambees (fundraisers) to raise the hundreds of millions of shillings (approximately Canadian $1,240,000) required by each suspect to hire the best legal defence teams.

The next day, December 17th, parliamentarians introduced a motion seeking to withdraw Kenya from the Rome Statute which binds the country to the International Criminal Court. The House Speaker dismissed the motion as unconstitutional. Some MPs called the motion “mundane” and an attempt to “save friends.” Within days it was resubmitted with minor modifications.

Vice President Kilonzo Musyoka intervened to have the motion considered late in the day on 22 December. At that point, all Parliamentarians present in the House, except one, Martha Karua, voted in favour of the motion.

Speaking in support of the motion to withdraw, energy minister Kiraitu Murungi said “It is only Africans from former colonies who are being tried at the ICC. No American or British will be tried at the ICC and we should not willingly allow ourselves to return to colonialism. The fears that we had when we were introducing the international criminal justice system are no longer there. There is nothing we cannot handle. As a sovereign country, no other Kenyan will be tried on foreign land. Let the six go but we have now learnt our lessons.’’.

The legal procedure for withdrawal from the Rome Statute is outlined in Article 127 of the International Crimes Act. A state seeking to withdraw must write to the UN Secretary General. Such withdrawal can only take effect one year after the Security Council receives the submission. All cases begun before the date of the submission remain intact.

Even if Kenya’s Principals request withdrawal, the ‘Ocampo Six’ will be spared The Hague trials only under specific conditions. Amongst these are that the same suspects be tried in a local tribunal with the same charges, and that the ICC prosecutor’s office approves the formation of the local tribunal or other legal mechanism established to address election-related crimes.

For the six, the next move rests with three ICC judges, who will confirm Ocampo’s charges, modify them or reject the charges altogether. If the judges do assent to charging the suspects, a possible modification would be to issue arrest warrants for the suspects rather than the simple summonses now being sought by Ocampo.

Ocampo’s action contributed to a confluence of crises within the ruling class (these include Wikileaks revelations and politicians’ reactions; constitutional logjams; along with corruption and drug cases among government Ministers and other officials). These tensions are splitting old alliances, and at the same time bolstering new ones. The tidal wave of delegitimization has now engulfed everyone from the president who refused to ask the suspects to step aside, to the politicians and state officers who have vowed to support the suspects “morally” and “financially,” to parliamentarians who passed a Motion on 22 December 2010 to withdraw from the ICC process, after which they agreed to adjourn for “an indefinite recess.”

The government has been inundated by legal challenges. Over 50,000 cases were pending before the passage of the new constitution on 4 August 2010. With the new rights enshrined in the constitution, the government is worried about an “avalanche” of further cases.

A flurry of court cases for the dissolution of parliament began in mid-November 2010. Litigation was spurred by parliament’s failure to hold to deadlines for the establishment of key committees for the implementation of the constitution. The calls for parliament’s dissolution began with the peoples’ demand for the preservation of the sanctity, including the deadlines, of the country’s popular new constitution.

The second round of questioning of the legitimacy of the parliamentarians’ right to hold office followed seamlessly in mid-December 2010 after MPs moved to withdraw Kenya from the International Criminal Court.

The ICC has forced the opening of political space in Kenya. Three years after the election that prompted a Herod-like slaughter of innocents, the possibility of justice has given rise to a new popular anticipation of positive changes in the dispensation of power.

Ng’ang’a Mbugua, in a 26 December Sunday Nation article tellingly entitled “Change of seismic proportion is on the way,” reminded readers “that the number of political vacancies has increased tremendously with the coming of county governments.” Even more political vacancies are promised by the popular demand that those now in office step down. Polls indicate most MPs will not be re-elected.

The demand for the benefits of peace is growing day by day. The momentous Kenyan events take place in the context of an approaching referendum for the succession of southern Sudan in January 2011, a hotly contested presidential election in Uganda in 2011 and the approach of Kenya’s next presidential election in August 2012 (in which two of the ICC’s named suspects had hoped to stand). Additional geo-political developments in the region include oil discoveries, pipeline route negotiations, new enclosures due to carbon trade projects, new GMO field trials, bio-fuel plantations and ramped-up military manoeuvres.

Beneath the drama unfolding at the level of Kenyan parliament and the International Criminal Court is the mobilization of vital grassroots movements for peace and participation. These are poised to alter the political landscape significantly in the coming year.

The focus here has been on seven days in December. Among the issues that will emerge more prominently in the near future are responses by Kenya’s Executive to parliament’s demand to get Kenya out of the ICC; the diverse political strategies employed by multitudes of grassroots actors, especially women; and class and factional conflict amongst those rushing to fill the vacancies created by the delegitimization of the incumbent section of the political class.

  • Leigh Brownhill is a Post-Doctoral Fellow at the at the Faculty of Environmental Studies, York University, Toronto and a Visiting Post-Doctoral Fellow at the Department of Natural Resource Sciences, McGill University, Montreal. Terisa E. Turner is Associate Professor of Sociology and Anthropology at the University of Guelph in Ontario.

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