Kenya: Impact of the ICC Proceedings

You can find below a transcript of this podcast.

Welcome to this podcast with the International Crisis Group. I’m Ben Dalton, Communications & IT Officer. In 2012, Kenya will hold presidential elections for the first time since polls in late 2007 led to widespread violence. I am speaking today with Abdullahi Halakhe, Crisis Group’s Horn of Africa analyst, about how changes implemented after the last crisis, including an investigation by the International Criminal Court, will affect this year’s politics. 

So Abdullahi, there is a history of violence spreading into electoral politics in Kenya, most recently in 2007 and 2008 after the presidential elections. With this year’s presidential and legislative elections coming up, do you see similar dynamics at play? 

It is very difficult to say if the 2012 elections will be peaceful or not. We’ve had elections where we have had a smooth transition from one regime to another, and we have certainly also had violence like we had in 2007 and 2008. That is not to say that there hasn’t been a pattern of electoral violence in Kenya. 

What we can say is that the 2012 election will certainly not be like any other election because of so many other factors. Kenya has a new constitution that diffuses some of the pressure points around which violence are concentrated – 60 percent of the constitution deals with the question of devolution of powers and resources. These are some of the issues around which we’ve had violence in the past. Now, there is a position of governor, senator— that is on top of the presidency, parliamentary and civic positions that people will be seeking offices for. 

So to some degree, I will argue that we might not have the nationalized violence that we’ve experienced before, but our sense is that because of other unintended consequences, which include the new constitution, we might have localized violence, unlike the nationalized violence that we’ve had before. 

So there are at least some structural changes that make mass national level violence less likely? 

Absolutely. I mean, some of these structures that we are talking about are: we have a new judiciary set up, which is enjoying broad support within Kenya, and personalities that have been appointed to big offices within the judiciary are people who have good track records. The other thing is having the ICC involved in the process will kind of damp down the level of rhetoric and hate speeches that we’ve seen preceding the elections. 

Let’s get into the ICC a little bit. Following the last crisis in 2007 and 2008, the International Criminal Court launched an investigation into several high-level politicians who were implicated in that violence. Who has been targeted? 

There are six individuals who the ICC investigated and found to bear the biggest responsibility as far as the violence is concerned. This is the current minister for finance, who is also the deputy Prime Minister, Uhuru Kenyatta, the son of Kenya’s first president, Jomo Kenyatta. The other one is William Ruto, who is the foreign minister for agriculture as well as the foreign minister for education. The third is Francis Muthara, who is Secretary to the Cabinet, and the other one is Major General Ali, who was the police commissioner. We have the former minister for industrialization, Henry Kosgey. And finally we have former radio journalist Joshua Sang. So these are the six people, three of them from one political party and another one from another political party. So, in total, we have six individuals who we are waiting for to see if the charges are confirmed or dropped against them, when the ICC will render its ruling on whether these guys will stand trial or not. 

What has been the reaction to the ICC’s investigation in Kenya, and what effect might it have on the upcoming elections?

The dynamic of Kenyan politics has slightly shifted because of this. These guys are fairly wealthy, they come from large ethnic groups, and initially, the outlook, particularly from general Kenyans who, for a very long time, had not seen powerful people held criminally accountable, was to generally support the ICC. But that support has been going down because these guys have been going around the country saying that,  “we have been targeted by the ICC and our political opponents so people won’t fix us, such that we will not participate in the 2012 elections”. 

So that dynamic, that narrative, got some traction and then ICC support slightly went down. But that doesn’t mean that the ICC doesn’t enjoy a broad support in Kenya. So that has obviously affected the Kenyan politics before the elections. 

The other effect that we might see is, depending on the ruling in the next two weeks, if the court decides that these guys will stand trial, that will have its own effect. If the court decides that these guys have no cases to answer, that will also affect the Kenyan political processes differently. But if the court says some of them will stand trial, and some will not, that will also affect Kenya’s political processes, particularly as we go to the 2012 elections.

So what steps can the ICC take to ensure that its proceedings diffuse rather escalate tensions surrounding the elections?

One of the things that the ICC has done, which we applauded in our report, is rendering the rulings for all six candidates simultaneously. Because, the trouble with Kenyan politics is that it is organized around ethnicity and three of the six suspects come from one ethnic group. If, by default, based on the strength of the evidence that the court has against these three suspects, if the charges against them are confirmed one day, and on another day the charges against the other three are dropped, these communities will start viewing that the court is against them, and these politicians are not averse to whipping up that kind of narrative to get support and sympathy. So for the court to render the ruling on the same day, that in itself is a good step. 

Also, during the confirmation of charges hearing, the court warned most of the politicians against hate speech and statements that might whip up ethnic tensions. And to be honest, that has really brought down the political temperature in Kenya. I think that is one thing that the court has done and that has really worked. 

The other thing is for the court to explain its limitations. In the minds of most Kenyans, these guys have already been charged. The court needs to say, “look, these are just one of the processes before these guys are finally committed to serving a jail time” – or whatever punishment they want to hand down. So the court needs to temper these expectations with real media outreach. They need to ramp that up.