What you need to know:
- A new political alliance known as the G7 is in the offing as Uhuru and Ruto return from the Hague tomorrow. But will they be eligible to contest the presidency in 2012?
The historic appearance of senior public figures at The Hague has set the stage for a busy year ahead as attention turns to the impact the International Criminal Court process will have on local politics and its implications for the suspects.
Lawyers and political analysts point to at least five scenarios that could define the political terrain in the next few months.
Particular attention will be paid to the contentious issue of whether two of the suspects with the highest public profile, Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto, can still contest the presidency in 2012.
Speaking a few hours after the initial court appearance at The Hague on Thursday, Mr Kenyatta was categorical on the issue.
“Of course I am still in the race,” he said, telling reporters he was confident he would be cleared. Mr Ruto did not directly address the subject after his initial appearance.
But lawyers say the two face an uphill task. International law expert Betty Murungi says the pair will be ineligible to contest if the charges against them are confirmed.
“Presently, there is nothing that stops them from running or holding public office. It is a moral decision on whether they should step down. But if charges are confirmed they will fall afoul of both the Public Officer Ethics Act and Chapter Six of the new Constitution which requires that public office holders should be people of the highest integrity. It is impossible to see how they would be eligible to run if the pre-trial chamber upholds the charges.”
Section 99 (2) (h) of the new Constitution says a person shall be disqualified from contesting for election to Parliament (and therefore the presidency) if they are “found, in accordance with any law, to have misused or abused a State Office or public office or in any way to have contravened Chapter Six.”
According to Dr Godfrey Musila of the African Centre for International Legal and Policy Research, the pace at which the Kenya case has unfolded means that a verdict is likely to come well before the elections.
“The court is constantly refining its processes and it has learnt from missteps in the past such as the [Congolese warlord] Thomas Lubanga’s case which was delayed by many procedural issues. The Kenya case is likely to be concluded fast,” he said.
But a source in the political camp of one of the suspects told the Sunday Nation that their view was that legal arguments over the sharing of evidence with the defence would mean confirmation hearings start as late as November and that the pre-trial case was unlikely to have been concluded before the elections scheduled for August 2012.
The following are some of the scenarios that could unfold in the coming year as the ICC process moves forward at a time when the political scene in Kenya is getting steadily more heated.
Scenario One: Case lasts until after August 2012
Key political allies of presidential aspirants Mr Kenyatta and Mr Ruto are banking on a court process that drags on beyond August 2012.
They are focusing on building a political alliance which would see a member of their political team take over State House after President Kibaki, presumably after which they would have a better position in which to tackle the ICC issue.
The envisaged alliance is being described in political circles as the G7 and the aim, according to an aide who declined to be named because talks were at the initial stages, would be to hold joint presidential nominations between candidates from different parts of the country.
Those anticipated to comprise the G7 are PNU/ODM/ODM-K leaders, Kalonzo Musyoka (Eastern province), George Saitoti (Rift Valley), Mr Ruto (Rift Valley) Mr Kenyatta (Central), Mr Abdikadir Mohamed (North Eastern), Mr Najib Balala (Coast) and Mr Eugene Wamalwa (Western).
The aides say they aim to form a joint secretariat by May 31, having abandoned a previous strategy of approaching the next elections as separate parties.
The aim of such an alliance will be obvious — they seek a coalition to block Prime Minister Raila Odinga from the presidency while installing a “friendly” president into State House.
It is notable that the alliance comprises figures from all the nation’s provinces as defined under the old constitution except the PM’s native Nyanza.
The presence of a candidate from Western Province could also be viewed as an effort to split another constituency viewed as a key element of Mr Odinga’s support base and home of Deputy Prime minister Musalia Mudavadi, a key ally of the PM.
Another step that is being discussed is the formation of a National Resettlement Authority, which would be in charge of settling internally displaced people [victims of the post-election violence] and those displaced from Mau forest.
The IDP issue has been identified as one of the key obstacles to a viable alliance although a National Resettlement Authority would also be seen as removing a key Odinga ally, Lands minister James Orengo from the resettlement exercise.
The alliance is being forged in anticipation of an Odinga candidature in 2012 although the PM, a wily political operator, has complicated the picture by saying he may not run for the presidency and could easily endorse another candidate.
This scenario is heavily dependent on the pace at which the case at The Hague unfolds, a factor none of the Ocampo Six can control.
Scenario Two: Charges are confirmed before elections
Former UN secretary-general Kofi Annan and ICC chief prosecutor Luis Moreno-Ocampo have both urged the court to dispense with the case before the election season properly kicks off.
Court watchers say the Kenyan case is unfolding at a faster pace than many others that have been handled by the ICC.
Dr Musila says confirmation hearings are likely to take about four to six months which would mean submissions conclude around December this year.
The judges would then need about two or three months to render their judgment which would come as early as February.
“It is unlikely that the judges would have allowed the case to get to this stage without agreeing there is enough evidence and it is hard to see what game-changing evidence the Ocampo Six could come up with,” says Dr Musila. “The likely outcome is confirmation of the charges.”
Such a result will almost certainly mean that Mr Kenyatta and Mr Ruto will be forced to step down from the race for the presidency. They will then hope to benefit from a positive outcome of their game plan in Scenario One above.
According to Ms Murungi, the Kenya case could be described in legal terms as sui generis — one of its kind — because of the pace at which it has unfolded.
“There are many reasons for this. Unlike many other jurisdictions, Kenya invited the prosecutor to investigate and the government largely cooperated with the investigation initially. There has also been no other case in which the media has covered the ICC so intensely and created so much attention on the case,” she says.
Both lawyers strongly suggest that the verdict will be rendered in the first half of next year rather than later.
Scenario Three: The suspects are cleared
Although not very common, there are precedents where suspects have responded to summonses and been found innocent.
One of these was the case of Bahr Abu Garda, formerly of Sudan’s Justice and Equality Movement (JEM), who was charged with taking part in a plot to kill African Union peacekeepers but was acquitted in February 2010.
Such an outcome would probably set the stage for an epic general election fight with some of the cleared suspects playing a central role and enjoying a new-found heroes of The Hague status.
Scenario Four: Charges against some confirmed
Lawyers say that despite the charges in the two cases against Mr Kenyatta, Mr Francis Muthaura and Maj-Gen Hussein Ali and that of Mr Ruto, Mr Henry Kosgey and Mr Joshua arap Sang being linked, it is possible that any individual could be absolved of responsibility depending on the evidence.
Indeed the charges are based on individual criminal responsibility.
Such an outcome is likely to have a bearing on the political alliances being discussed, whatever the timeline in which the outcome is announced.
Scenario Five: Admissibility challenge succeeds
Attorney General Amos Wako yesterday listed the implementation of judicial and police reforms and speeding up of 3,500 post-election violence cases as the key steps that need to be taken to improve the chances of the government’s effort to halt trials at The Hague.
But there is general agreement that the admissibility challenge stands little chance of success because the Rome Statute requires that the challenge should be based on ongoing proceedings within the country rather than future proceedings.
Mr Wako also said the Ocampo Six should refrain from making statements about the ICC process, a requirement that might take the thunder away from efforts to use the cases as a rallying point for mobilising political support.
All these scenarios point to a period of uncertainty as Kenya approaches the first election since the historic promulgation of the new Constitution, an event which has been overshadowed by the high-stakes case at The Hague.