Deputy President, we have your back as The Hague trial resumes

By Donald B Kipkorir

Kenya: Your Excellency, William Samoei arap Ruto, again, you are returning to The Hague for continuation of your hearing at the ICC. Again, I offer my unsolicited and pro bono advice. My advice is unconditional, as I have received no favour nor asked for any from you in all the years we have known each other since 1992.

The ICC is not an ordinary court. It is a court built out of political expediency by the victors of WWI and WWII. As direct revenge is primitive, the World Wars victors wanted to exact revenge on the German and Japanese losers through a civilised process. Thus, the Tokyo and Nuremburg Military Tribunals that seeded the modern ICC.

As such, as much as your lawyers are defending you at The Hague, open back-door channels with Washington, London and Brussels. They say, he who pays the piper calls the tune! Acquittals or convictions at ICC are not based on pure law, as we know.

The entire legal philosophy and jurisprudence of ICC is laid on victor’s justice. Or to put it differently, it is dependent on who runs the world at the given time.

Here in Kenya, 2013 ended and 2014 began with political fault lines that may end up in fissures. History teaches us that in politics, nothing is permanent but interests. However, one constant in Kenya is that our politics is tribal first, and national second. That it is so is not accidental. Belonging to a tribe is not by choice, but belonging to a nation-state ought to be.

Kenya, like all African countries, excluding the Arab North, was an historical happenstance of the Berlin Conference of 1884-1885. European powers under the leadership of German Chancellor Otto Von Bismarck, created artificial boundaries in Africa that have stood more or less to-date.

That Jubilee is in power, courtesy of alliance of the Kikuyu and Kalenjin tribes is no secret. Other tribes provided peripheral support. As such, Jubilee Government is a 50:50 Kikuyu-Kalenjin Coalition. In European countries, coalition governments are based on ideological parties. In Kenya, we must learn how to make tribal alliances work to develop a genuine nation-state.

Prof Francis Fukuyama, in his outstanding book “The Origins of Political Order” has argued that before nation-state is the tribal nation. As the pre-eminent Kalenjin leader, and as the Deputy President, you have to delicately balance the interests of the Kalenjin nation, and of the Kenya nation-state. At times, the two may not converge. And don’t be bullied to sacrifice your advisers just because part of the coalition is not happy with them.

Some African countries like Central Africa Republic, DRC and South Sudan are unraveling because the respective Governments want to build false unitary states and ignoring the tribal compositions. There, political parties are allegedly built on ideologies when none exists. Peace will only come to these countries when they realise that tribes have to be allowed to express themselves through own parties or coalition of tribal parties. Kenya is on the right track of building a viable nation-state by allowing tribes to form parties though we pretend otherwise. This is the only instance that pretending is wise.

While at The Hague, find time over the weekends to take a train trip to Denmark. There is so much to learn from them. And also, book a table, if you will get, at Noma, the best restaurant in the world. Repeatedly, we have been told that life offers each of us lemons. It is how we decide to use the lemon that determines our choices.

The ICC is a personal challenge for you, but the process, like fire to ore, will make you stronger. And you get to learn many things from The Netherlands and Denmark. Both are small countries but highly successful. When you are acquitted, as you will, Kenya, will be the beneficiary of your learning. As a proud Kalenjin, we await your triumphant return. We have your back. Fare thee well.

–The writer is an Advocate of the High Court of Kenya