Kenya risks going into 2017 General Election without resolving key issues

An elated Deputy President William Ruto speaks on his mobile phone after the International Criminal Court judges dropped charges against him and journalist Joshua Sang

An elated Deputy President William Ruto speaks on his mobile phone after the International Criminal Court judges dropped charges against him and journalist Joshua Sang

One thousand, one hundred and thirty-three people killed, mostly stabbed and slashed with machetes, decapitated, pummelled with blunt objects, or shot with arrows.

Another 650,000 run out of their homes and forced to resettle far away from the places they had been born, raised, schooled, lived and done business.

Some 117,216 private properties — including residential houses, commercial premises and motor vehicles — destroyed.

And 491 government properties — office buildings, vehicles, health centres and schools — razed to the ground.

These stark numbers from Justice Philip Waki’s Commission of Inquiry into the post-election violence do not adequately capture the full horror of Kenya’s descent into butchery and near dismemberment in the wake of the disputed 2007 presidential elections.


A lot of water has passed under the bridge eight years later. Kenya seems relatively peaceful under a government led, ironically, by a union of two of the people seen to have at least been the inspiration to the combatants on opposite sides of the bloody ethnic-political divide.

However, the uneasy peace and fragile reconciliation does not adequately mask the deep fissures in society that were exposed by the violent outbreak following the disputed 2007 presidential elections.

Tuesday’s decision at the International Criminal Court (ICC), dismissing charges against Deputy President William Ruto and radio presenter Joshua Sang could either mark the end of a long-running trial, or confirm that the wheels of justice must grind to the logical conclusion.

However, no ruling will erase history or obscure the fact that the wounds have not healed and many of the issues around the tragic cycles of ethnic-political violence have never been addressed.

The ruling comes just as the country is gearing up for another General Election, scheduled for August next year.

There can be no doubt that the extent to which the ICC cases have been exploited for political gain will be a factor in the electioneering, as evidenced by the kind of statements that have been coming from Mr Ruto’s supporters ahead of the ruling.

Some have amounted to threats against the ICC unless it rules in favour of the Deputy President, the kind of statements that could then be extended to threats against those in Kenya seen to have supported the cases that also had President Uhuru Kenyatta as a defendant before his prosecution collapsed for lack of evidence.

Three others whose cases also did not go far were former Public Service head Francis Muthaura, former Cabinet minister Henry Kosgey and former Commissioner of Police Mohammed Hussein Ali.


It all goes back to an evening that must still stand as one of the most bizarre election results announcements ever.

On the night of December 30, 2007, Electoral Commission of Kenya (ECK) Chairman Samuel Kivuitu emerged at the Kenyatta International Conference Centre to announce before an increasingly agitated crowd the delayed outcome of the presidential elections held three days earlier.

But even as he proclaimed that President Mwai Kibaki had withstood the challenge of Mr Raila Odinga to win a second term by a narrow margin, Mr Kivuitu managed to convey doubts on the true outcome with a rambling and incoherent performance.

Early counts had suggested Mr Odinga was headed for victory before results from populous Kibaki strongholds in the Mt Kenya region propelled the incumbent ahead to clinch victory.

The shocked opposition was still crying foul and trying to digest the outcome when Mr Kivuitu was whisked away from the ECK tallying centre to present the winners’ certificate at State House and observe a hurriedly convened swearing-in ceremony for President Kibaki.

But even as he was confirming President Kibaki’s victory, the electoral commission boss was still managing to cast doubt with a succession of confounding statements suggesting that he was pressured to declare the results and was not even sure who the real winner was.

The result was an outbreak of violence across the country as supporters of Mr Odinga’s Orange Democratic Movement (ODM) reacted with anger and fury, going on the rampage that was countered by supporters of President Kibaki’s with their own retaliatory attacks.

The escalating violence in the slums of Nairobi, the towns and farmlands of the expansive Rift Valley, spreading to major towns and settlements in Nyanza and western Kenya, the Coast region and central Kenya, soon indicated a complete collapse of government and the threat of civil war.


But after just a few days of escalating violence and terrifying media images of a carnage and bloodletting unseen in independent Kenya, the international community took notice.

Scores of high-powered envoys from the neighbouring East African Community states, the African Union (AU), and further afield from Europe, the United States, and the United Nations, were dispatched to Kenya in frantic efforts to persuade President Kibaki and his aggrieved rival, Mr Odinga, to call a ceasefire and agree to a negotiated settlement.

The talks brokered by the AU’s Panel of Eminent African Persons chaired by former UN Secretary-General Kofi Annan, and also including former Tanzania President Benjamin Mkapa and former South African First Lady Graca Machel, brought President Kibaki’s Party of National Unity (PNU) and Mr Odinga’s ODM into the Kenya National Dialogue and Reconciliation forum for mediation.

An early result was the commitment of both parties to an immediate cessation of violence, followed by the continuing talks towards identifying and resolving the contentious issues.


The talks broadly agreed on four main agenda items: Immediate action to stop the violence and restore fundamental rights and liberties; Immediate measures to address the humanitarian crisis, and promote healing and reconciliation; How to overcome the political crisis; and addressing long-term issues, including constitutional, legal and institutional reforms, land reform, tackling poverty and inequality as well as combating regional development imbalances, tackling unemployment, particularly among the youth, consolidating national cohesion and unity and addressing transparency, accountability and impunity.

It was under the first three agenda items that the violence was halted and the deal struck for a Government of National Unity in which President Kibaki came to share power with Mr Odinga as the newly minted Prime Minister. PNU and ODM also shared Cabinet seats on a 50-50 basis.

Other key developments included the establishment of two independent commissions to tackle the causes of the crisis.

South African judge Johannes Kriegler chaired the Independent Review Committee, charged with looking at what went wrong with the 2007 elections.

Judge Waki of the High Court of Kenya chaired the Commission of Inquiry into Post-Election Violence, which ultimately put together the process that landed Mr Ruto and Mr Kenyatta, then ministers on opposite sides of the Grand Coalition Cabinet, and four other suspects at The Hague.

When the commission handed over its report to President Kibaki and Prime Minister Odinga, a key novelty was that it contained no names of suspects for prosecution or further investigation.


Instead, a separate sealed list of suspects was handed over to the custody of Mr Annan, for onward transmission to the ICC in the event that Kenya failed to establish an independent local tribunal to drive further inquiries and try the violence masterminds locally.

The proposal for a local tribunal became a big political issue that ultimately split the coalition government and resulted in a stalemate that forced Mr Annan to pass on the list of suspects to then ICC Prosecutor Luis Moreno-Ocampo.

Notable was the manner in which local political dynamics shifted. Both President Kibaki and Mr Odinga, the often feuding co-leaders of the Grand Coalition, were for a local tribunal.

But key lieutenants in their respective wings of the coalition, Mr Kenyatta in PNU and Mr Ruto in ODM, were set against the local mechanism and worked hard to sabotage in Parliament a series of legal steps towards the establishment of the tribunal.

The dynamics of the day saw Mr Ruto estranged from Mr Odinga, and drift back into partnership with Mr Kenyatta in a reunion of the team put together by ex-President Daniel arap Moi in the unsuccessful attempt to extend Kanu’s four-decade reign as he served out his final term in 2002.

And it had so happened that at the height of the post-election violence, Mr Kenyatta and Mr Ruto had come to be seen as the key leaders on opposite sides of the fence.

When President Kibaki seemed to be vacillating, it was Mr Kenyatta who was seen to have taken the ball and galvanised popular sentiment against the targeted killing of the Kikuyu in the Rift Valley.

Meanwhile, Mr Ruto was seen as the heir of President Moi’s Kalenjin political mantle, whose key stratagem in resisting the clamour for political pluralism since the early 1990s was the continuing threats to evict the Kikuyu and other “aliens” from the Rift Valley.

It was, thus, by a strange quirk of fate that Mr Kenyatta and Mr Ruto found themselves both on the Ocampo list, but that was also what ultimately brought them back together and led to the formation of a potent political force that captured the presidency in 2013.

President Kenyatta’s case was dropped last year for lack of evidence and Tuesday, Mr Ruto similarly walked free.

But that will still leave a great deal of issues unaddressed, including the plight of victims who have been largely forgotten.

Then there is the spectre of Kenya going into another election before the real underlying issues responsible for cyclic electoral violence have been resolved. Twitter: @MachariaGaitho




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