Friday’s ruling from the Kenyan High Court has — for now, at least, and through the duration of the presidential campaign, barring any last-minute intervention from Kenya’s supreme court — cleared the legal obstacles for Uhuru Kenyatta to run for president in the March 4 election.
Kenyatta’s legal issues stem from Kenyatta’s indictment for crimes against humanity by the International Criminal Court, on the basis of orchestrating ethnic violence following the previous presidential election in 2007 when over 1,000 Kenyans were killed during tumult that upturned hundreds of thousands more from their homes, pummeled the reputation Kenya’s political system and damaged its economy.
Kenyatta’s running mate, William Ruto (pictured above right, with Kenyatta at left), is one of five other Kenyan officials also charged for crimes against humanity, and the High Court’s ruling also clears him. Kenyatta and Ruto were actually on opposite political sides in 2007, though they’ve now found common cause through, among other things, the pariah status that’s come from ICC indictment.
It’s more accurate, however, to say that the court refused to intervene — the basis of the case was whether Kenyatta and Ruto had demonstrated sufficient ‘personal integrity, competence and suitability’ for the presidency, as stated under Kenya’s constitution. The court claimed it lacked the jurisdiction to disqualify the candidates, though it noted that the Supreme Court holds jurisdiction to make such a determination.
Kenyatta and Ruto head the Jubilee alliance, a merger of various parties, but really an alliance that binds together members from Kenyatta’s Kikuyu ethnic group (Kenya’s largest, comprising around 22% of the population) and Ruto’s Kalenjin ethnic group.
Kenyatta’s main opponent, Raila Odinga, heads the CORD (Coalition for Reforms and Democracy) alliance, which binds together Odinga’s Luo ethnic group and the Kamba ethnic group of Odinga’s running mate, Kalonzo Musyoka.
Kenyatta, currently a deputy prime minister since 2008 and minister of finance from 2008 to 2012 under Kenya’s outgoing, term-limited president Mwai Kibaki, is the son of Kenya’s first president, Jomo Kenyatta.
Odinga, currently Kenya’s prime minister following the power-sharing agreement that resulted in the wake of the 2007 presidential election, is the son of Kenya’s first vice president, Jaramogi Oginga Odinga, whose falling out with Jomo Kenyatta in the 1960s serves as prologue to much of this year’s presidential election. In 2007, Odinga only narrowly lost the presidency to Kibaki, and he’s held a narrow lead throughout much of the 2013 campaign, though Kenyatta has waged a spirited campaign and was generally seen as the winner of Kenya’s first presidential debate on February 11.
Within Kenya, the ICC charges themselves matter little to voters — though Odinga is more to the left and Kenyatta is more to the right, Kenya’s election has been polarized into tribal ethnic lines, not on standard ideological lines. So Kenyatta’s supporters could care less about international charges they believe are unfair, though Odinga has used the ICC charges to taunt Kenyatta, most recently during their presidential debate when Odinga scoffed that it would be impractical to run a government from the Hague using Skype.
Even Odinga, nonetheless, has called for the Kenyan courts to validate Kenyatta’s presidential candidacy, and he’s even called for any trials over the 2007-08 violence to be settled in Nairobi, not through the ICC.
In a sense, while the ICC charges themselves are a fringe issue, they are also at the heart of the campaign, given the ethnic tensions involved in the current campaign and the desire among all of Kenya’s leaders to avoid a devastating replay of the 2007 and 2008 political violence that followed the last election.
Internationally, however, a win for Kenyatta could cause some difficulty for Kenyan diplomacy abroad — a head of state has no particular diplomatic immunity from ICC jurisdiction, according to a 2011 ICC ruling in the context of a case against Sudanese president Omar al-Bashir.
Kenyatta is accused of organizing a Kikuyu militia called the Mungiki that’s said to have carried out some of the most brutal 2007-08 violence, though Kenyatta has denied it in testimony before the ICC.
The notion of a Kenyan president duly elected in a free and fair election being subject to an ICC case — or being convicted for crimes against humanity by the ICC — would bring about some awkward diplomatic realities for both Kenya and the outside world. It could make it incredibly difficult for Kenyatta to appear as scheduled before the ICC in April, a month after the election from which he could well emerge as head of government.
Although U.S. president Barack Obama has stated that Kenyans should be free to select whomever they prefer as the next president, U.S. secretary of state for African affairs Johnnie Carson last week had some not-too-subtle words of caution for the Kenyan electorate:
“Individuals have reputations; individuals have images, histories and reputations. When they are selected to lead their countries those reputations do not go away from them, they are not separated,” Carson cautioned.
“We as the United States do not have a candidate or a choice in the elections; however, choices have consequences, we live in an interconnected world and people should be thoughtful about the impact their choices have on their nation, economy region and the world in which they live.”
The European Union, for its part, has pledged to maintain only ‘essential contact’ with Kenya if it elects as president an ICC defendant, though it remains to be seen if it will carry through on that pledge (earlier this month, Europe quietly dropped its long-held boycott against Gujarati chief minister Narendra Modi, who is likely to become the BJP candidate for prime minister in the 2014 Indian general election).
Given that Kenya, with nearly 42 million people, remains the largest economy in East Africa and a regional hub for U.S. security and diplomatic efforts, it’s difficult to envision the United States, Europe or other countries cutting all ties with a Kenyatta-led Kenya.
Furthermore, the U.S. and E.U. statements may well backfire by angering Kenyans who don’t take kindly to neocolonial suggestions about their election campaign and the international criticism could well boost Kenyatta’s campaign.
Even more troubling for the ICC’s long-term reputation, however, is that its case against Kenyatta may lack sufficient evidence to tie the presidential hopeful directly to the 2007-08 violence, which means that the ICC will have been seen to have interfered in Kenyan national politics and potentially jeopardized Kenya’s diplomatic status for, essentially, no good reason.