Duale: ICC was political manna that Ruto took as Raila goofed

If Kenya failed to set up a tribunal, then the cases would be referred to the International Criminal Court at The Hague. Waki knew the Judiciary had deep-seated problems, where judges could be bought off. A tribunal with publicly-vetted impartial judges was the answer. He also knew the ICC had, until then, dealt with suspects from failed states. Kenya was not one. He hoped politicians saw it that way.

The blind spot in the recommendations was failure to notice that politicians are always scheming for power, for opportunities to neuter current and future rivals. The report, even with the rumoured names, was political manna for politicians in the Kibaki succession.

The moment the Cabinet approved the report (plus its recommendations) and sent it for adoption in Parliament, the countdown began. When the Waki report was brought to Parliament on 4 December 2008, we had 45 days to set up a special tribunal.

However, the Christmas recess was around the corner, and adoption of the report had to wait until January 27, 2009. Two days later, with the deadline for the tribunal looming, the government introduced two Bills, one to amend the Constitution to set up a parallel judicial system, because the Constitution at the time only recognised the country's Judiciary as the ultimate arbiter of all criminal and civil disputes.

The second Bill would establish the tribunal. For an amendment on the Constitution, a two-thirds majority support for the Bill was required. On such a controversial, politically divisive issue, raising that number was impossible. Kibaki and Raila called all ministers and assistant ministers to a meeting, where we were told we had to be present in the House and vote for the Bill. Nearly half of Parliament comprised ministers and their assistants. Next, they came to plead with the rest of legislators in a Kamukunji, an informal meeting held at the debating chambers.

On one hand, those who favoured the International Criminal Court did so because Kenya did not have a working witness protection law. To deal with masterminds of the Post-Election Violence meant witnesses would testify against powerful politicians, bureaucrats and the police. No credible witness would survive. Also, powerful people wanted to control and even manage the proceedings of a local tribunal, corrupting the judicial process to either fix their political opponents and their supporters, or to evade being held to account. In the circumstances, the ICC seemed an independent court capable of delivering justice.

On the other hand, some favoured the international court because they wanted to knock their political opponents off the Kibaki succession. The names were not known, but popular wisdom at the time dictated that an ICC indictment was a permanent blot on a politician's career, a career killer. The ICC dealt with the worst of the crimes and being tried in the court made someone unelectable. Either way, it was a case with political origins and grave political consequences.

On February 12, 2009, I received a letter from the Head of Public Service and Secretary to the Cabinet Francis Muthaura asking me, as an assistant minister, to be in the House to vote for the two Bills. That afternoon, President Kibaki led the whole front bench to Parliament. We all voted 'Yes', but I suspected some ministers who had opposed the Bills in Cabinet had worked behind the scenes to mobilise backbenchers to reject it. In the end, the 101 'Ayes' against the 93 'Nays' were still short of the 148 votes required to meet the constitutional threshold of two-thirds majority.

Annan promised to give the sealed envelope to the ICC that July. The Cabinet tried to come up with another Bill, but this too failed. We had run out of options. Annan handed over the envelope to the Prosecutor of the ICC, the Argentinian Luis Moreno-Ocampo, who got the court's permission to investigate the crimes against humanity in Kenya on March 31, 2010.

The entry of Ocampo into the mix pushed the issue of Post-Election Violence into the backburner. In April 2010, Ocampo announced that he had zeroed in on six prime suspects. His timing was terrible, because the country was wholly focused on rewriting the Constitution, the referendum campaigns and a vote on the new Constitution expected that year. His poignant announcement got lost in the fast-moving news cycle. The new Constitution was promulgated on August 27, 2010.

We had all known that the referendum campaigns were a test-run, even an audition, for those keen to succeed President Kibaki in the next election. Raila was in pole position with then Vice-President Kalonzo Musyoka, and Internal Security Minister George Saitoti high in the succession matrix. Ruto had also distinguished himself with a sizeable chunk of supporters, especially the church, for leading the 'No' campaign. There was also Uhuru Kenyatta, as Finance Minister, who harboured ambitions of succeeding Kibaki.

When former President Uhuru Kenyatta unveiled his Jubilee manifesto at Kasarani Stadium ahead of the 2017 election. [File, Standard]

Since the beginning, it had been clear to me that Kibaki had to carry the blame for the Post-Election Violence because he stole the elections and unleashed the police on protestors to stay in power. The Waki report also pointed an accusing finger at the police for shooting dead at least 405 people, mainly opposition supporters in then opposition strongholds of Kisumu, Kakamega, Kericho, Trans Nzoia, Eldoret, Nakuru, and Nairobi.

If any blame was to be dumped at the opposition's doorstep, it had to do with the campaign rhetoric, where some party members engaged in dangerous anti-Kikuyu rhetoric, and perhaps the ambiguous call for mass action, which our party leader Raila Odinga had issued.

The President had immunity from prosecution, and trying to prosecute Raila at the time was impossible. For a fair process to actually get justice for the thousands who lost family, livelihoods and property, I naively believed the International Criminal Court at The Hague in the Netherlands had the ultimate solution.

Then on 15 December 2010, Ocampo dropped the bombshell. In a widely anticipated press conference, he named six suspected masterminds of the Post-Election Violence. He divided his list into two, really, two cases, one involving the Kibaki side of government, and the other, the Raila side of government.

For the Kibaki side, he named then Finance Minister Uhuru Kenyatta, the Secretary to the Cabinet and Head of Public Service Francis Muthaura, and former Police Commissioner Maj-Gen Hussein Ali. For the Raila side, he named William Ruto, at the time Higher Education Minister on suspension; then Industrialisation Minister Henry Kosgey, and radio broadcaster Joshua Sang'.

In the Cabinet, Kibaki formed a sub-committee on the ICC comprising George Saitoti (Internal Security), Mutula Kilonzo (Justice and Constitutional Affairs), Otieno Kajwang' (Immigration), Amason Kingi (Fisheries), Attorney General Amos Wako, and James Orengo (Lands) to guide the Cabinet and the government on how to deal with the international court.

The ODM machinery was working on overdrive to neuter Ruto. They had seen how he had used the referendum to show his political skills, driving the 'No' campaign to a sizeable 2.7 million votes, with the bulk of the Rift Valley and other regions, backing Ruto and voting overwhelmingly to reject the document. The referendum confirmed to Ruto that he had a future. I terminated my sabbatical and rejoined Ruto ready for the next battle to capture power. We began shopping for a political party.

Prior to the pre-trial hearings at the ICC, Muthaura approached Kalonzo and asked him to lead an international diplomacy effort to have the cases against the ICC suspects deferred. Kalonzo went on a round of lobbying in different member states of the UN Security Council to seek support for the proposal to defer the charges against the Ocampo Six.

Meanwhile, ODM, seeing a very formidable threat in Ruto, fired a letter to the UN Security Council, rejecting a deferral or referral of the cases, at a time when elections were on the horizon. In effect, the ODM letter backed the prosecution of three of their most ardent supporters, including their chairman Henry Kosgey, at the ICC.

ODM labelled the suspects warmongers, and said everyone had to carry their cross. If the party had been reasonable, it would have put it on record that there was no party-wide strategy to incite or instigate violence. Everyone knew the cause of the violence was a stolen election some of it was spontaneous, but the retaliatory attacks against ODM supporters were planned, according to a report of the Kenya National Commission on Human Rights. Yes, Raila and Ruto had split, but writing to the UN Security Council was too low an action.

It deeply crushed Ruto and those of us who had seen the betrayal. It was the final blow. Before that point, Ruto could have worked with Raila in the Kibaki succession. But after that, it was impossible. I mobilised Ruto's friends in Parliament, the disgruntled ODM MPs, and called a press conference where we trashed ODM Secretary-General Anyang' Nyong'o's letter because such a decision required a party position. ODM had neither met nor agreed on a position concerning the deferral.

Luckily, I was still an official in ODM. I teamed up with other officials, Benjamin Langat (then organising secretary and Ainamoi MP) and Mahmoud Ali Mohamed (deputy secretary-general and Moyale MP). Huddled in Ruto's private office at the Transnational Plaza on City Hall Way in Nairobi, just across from the Supreme Court, we drafted another letter to the UN Security Council. We argued that a deferral was necessary to restore calm as the country hurtled towards another election. We said that going ahead with the cases in a partisan and polarised environment risked exposing the country to another round of violence.

We signed the letter and shared it with journalists in Kenya and with the foreign press. Thereafter, we got the e-mail of then President of the UN Security Council, China's Li Baodong, and sent him our letter and attached Prof Nyong'o's letter. We also fired e-mails to all representatives of the members of the UN Security Council. In short, we said, as ODM, we agreed with the government's position for a deferral. In the end, the UN Security Council rejected the request for deferral, thanks to the powerful lobbying of the US, Britain and France.

The future was looking bleak.

However, when we sat with Ruto, he had international sources who had explained to him that the ICC was being pushed by foreign powers to get Raila to power. That tidbit of information changed the politics. "This is all politics. We have to fight it politically," Ruto said in one strategy meeting.

He looked for Uhuru Kenyatta and told him that we had to deal with the ICC as a political case, not a legal one. Uhuru was hesitant. His family had investments and interests in different European countries. What if he was slapped with sanctions?

We agreed that Ruto should approach Uhuru and tell him that we would embark on countrywide rallies to pray for victory in the cases at the ICC. We did not know at the time that Uhuru had been working with then Vice-President Kalonzo Musyoka, and Internal Security Minister George Saitoti to cobble together an alliance to succeed Kibaki. They had even agreed in a top-secret retreat in Diani that one of them was going to be on the ballot.

Therefore, when Uhuru went back to his meeting with Kalonzo and Saitoti, he blindsided them with a request to include Ruto. They protested loudly. Saitoti said if Ruto joined, the alliance was dead. There was no way Kalonzo and Saitoti would compete, their political base was tiny and ambiguous. Ruto was at the time the defacto kingmaker in the Kibaki succession.

We did not wait for Uhuru. We started the prayer rallies in Kapsabet, went to Eldoret, and several other towns. By the time Uhuru overcame his fear, the train was in motion. He saw sense, joined us for the subsequent rallies, and even brought his mother, Mama Ngina Kenyatta, to a rally we held in Gatundu. We felt unstoppable.