The Queen’s Counsel for Kibaki on the Ocampo Six Is Doomed To Fail

The Queen’s Counsel for Kibaki on the Ocampo Six Is Doomed To Fail

It is both a disgrace and insult to our national pride and intelligence to be lectured by the “Queen’s Counsel” more than 48 years after independence about what the Rome Statute says about obtaining a deferral from the International Criminal Court (“ICC). Kenya does not need the Queen’s Counsel much less its own Attorney General to advise her on what the requirements of a deferral from ICC are or what she may need to do to obtain one, given this 11^th hour; a good law student or any good student for that matter can easily research and spell this out for free.

This writer has previously laid out what it might take to obtain a deferral given the stature of these cases and to recap, the writer believes the best way to obtain a deferral is for Kibaki to ask Raila to join him in making the request upon satisfaction of the following conditions which are obvious, given the objective of once and for all bringing closure to the question of post-election violence and these are: (1) passage of law in Kenya to impartially try the perpetrators of post-election violence locally, including the Ocampo Six (2) commitment to judicial reforms by time certain and measurable milestones to allow such trials to take place without delay (3) asking the Ocampo Six to step-down from their position pending their trials or otherwise paving the way for an unimpeded investigation and prosecution of the cases before an impartial special tribunal.

Queen’s Counsel advise or not, these is essentially what the country needs to do to legally obtain a deferral under Article 16 of the Rome Statute, which governs ICC deferral applications.

Taking this approach, however, is too simple for those who relish on making the simple difficult if not impossible. Thus, instead of this simple, straightforward approach, the Queen’s Counsel, through an obviously leaked trial balloon, has advanced a number of deferral arguments for their client, Kibaki whose AG is no doubt at his best as his trusted counselor (remember when he was not?). These arguments are not credible nonetheless:

The Queen’s Counsel advises that Kenya should file a special application at The Hague by April 1 ostensibly seeking to challenge admissibility of the ICC cases as well as the Hague court’s jurisdiction and that further that the country should seek a delay of this challenge for six-months from the filing date. There are several reasons why this strategy is ill-advised:

First, you do not go before a judge and tell him or her “Your Honor, I need a six month’s delay” to do something I was supposed to do more than 3 years ago, which is essentially what the Queen’s Counsel is advising Kibaki to do.  This argument would have had one severely injured leg to stand on if it was advanced even as late as last December instead of unleashing Kalonzo on his road to nowhere from whence he has since returned with nothing to show other than how much money he wasted all along.  On the other hand, if the Queen’s Counsel is advising Kibaki to pursue this strategy of a six-month delay as a dilatory tactic, he would have been better off not making it public otherwise doing so simply undermines his credibility even before he shows up to make such a request.

Second, the ICC can automatically exercise jurisdiction under Article 12 of the Statute over crimes committed on the territory of a State Party or by a national of a State Party such as the ones the Ocampo Six are charged with. In this case, Kenya actually referred the this case to ICC thereby subjecting itself to ICC jurisdiction under Article 13. These are more than enough reasons for ICC to satisfy itself it has jurisdiction but there is more that need not be explored here.

Third, on the question of admissibility of the Ocampo Six case, ICC only looks to see if there is a credible ongoing investigation and or prosecution of any or all of the Ocampo Six in Kenya. As of this writing, there is no such a thing going on therefore the Queen’s Counsel advise to challenge the ICC cases on this ground is indeed without basis as the circumstances stand today. Were Kibaki to agree and follow through with the conditions set forth above, including passing a law to try PEV suspects locally, then the ICC might entertain an application at this stage of the game under Article 17(1)(c) of the Statute but any other application is doomed to fail.

The Queen’s Counsel anticipates that a section of the coalition government will submit a contrary application to the advised application to challenge jurisdiction and admissibility of the case. The Queen’s Counsel comforts his client that “we must be ready to defend the Government against such attack.” In other words, the Queen’s Counsel is advising the Government to go to war against itself before the ICC. This is obviously bad counsel which needs no elaboration other than to say one hopes such advice is promptly ignored or dismissed.

In sum, Kenya does not need the Queen’s Counsel to tell us what to do about PEV and the Ocampo Six. We know what we need to do; let us just do it.

 

Who Is William Ruto Part III

Who Is William Ruto

Part III

After more than 2 years of speculation, the Chief Prosecutor of the International Criminal Court (“ICC”), Luis Moreno Ocampo finally made public on December 15, 2011 the names of suspected masterminds of Kenya’s post-election violence with William Ruto being one of them. The other five suspects are Uhuru Kenyatta, Francis Muthaura, Hussein Ali, and Joshua Sang. Immediately following the naming of the six suspects or the “Ocampo Six” as they are commonly referred to, President Kibaki and his half of the coalition government went into full gear in efforts to defer the ICC prosecution of these cases. These efforts have thus far been futile and the case is moving forward, however.

On March 8, 2011, the Pre-Trial Chamber II (“the Chamber”) of ICC in the case of the Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, found that there are reasonable grounds to believe that, from December 30, 2010 until end of January 2008, Ruto, Kosgey and Sang are criminally responsible as co-perpetrators in the commission of crimes against humanity in the form of murder in locations including the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town, in the Uasin Gishu and Nandi Districts of the Republic of Kenya in violation of Articles 7(1)(a) and 25(3)(a) or (d) of the Rome Statute.  According to the material presented, the Chamber found that perpetrators identified people belonging to enemy communities by checking their identification documents or asking for their names, killing them immediately by way of shooting with gun using crude weapons or arrows.

The Chamber also found that there were reasonable grounds to believe that Ruto, Kosgey and Sang as co-conspirators committed or contributed to the commission of crimes against humanity in the form of deportation or forcible transfer of population in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town, in the Uasin Gishu and Nandi Districts, Republic of Kenya, from December 30, 2007 to the end of January 2008 in violation of Articles 7(1)(d) and 25(3)(a) or (d) of the Rome Statute.

The Court specifically found that between December 30, 2007 and January 2008, large gangs of perpetrators associated with the network created by Ruto and Kosgey strategically converged upon Turbo Town, the greater Eldoret area, Kapsabet town and  Nandi Hills town, and started burning down homes and properties owned or occupied by members of particular communities, namely Kikuyu, Kamba and Kisii, which were perceived to be PNU supporters. The destruction of property was the primary tactic used by the network’s perpetrators to forcibly remove these communities from the area in previous ethnic violence in the region.

Finally but not least, the Chamber found that from December 30, 2007 to end of January 2008, Ruto, Kosgey and Sang as co-conspirators  committed or contributed to the commission of crimes against humanity in the form of persecution, when co-perpetrators and/or persons belonging to their group intentionally and in a discriminatory manner targeted civilians based on their political affiliation, committing murder, torture, and deportation or forcible transfer of population, in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town and Nandi Hills town in Uasin Gishu and Nandi Districts, Republic of Kenya, in violation of Articles 7(1)(h) and 25(3)(a) or (d) of the Rome Statute.

Regarding torture, the Chamber considered that the material presented was not sufficient to establish reasonable grounds to believe that acts of torture as a crime against humanity were committed in the relevant locations and at the relevant time referred to in the Prosecutor’s Application. This finding is without prejudice for the Prosecutor to present new evidence in the future substantiating this alleged crime.

The Chamber made the legally significant finding there was reasonable evidence to conclude that the PEV attacks were “systemic” and pursuant to an “organizational policy.” The Chamber noted that there are reasonable grounds to believe that there existed an organization which reflected a hierarchical structure, headed and controlled by Ruto and Kosgey by virtue of the different prominent roles they played within that organization. In addition, there are reasonable grounds to believe that, due to their positions and powers within the organization, Ruto and Kosgey were able to secure the execution of the crimes agreed upon by almost automatic compliance of the physical perpetrators with the orders given by the leaders.

Further, there were reasonable grounds to believe that from December 30, 2006 to the end of December 2007, Ruto, Kosgey and Sang, held a series of meetings in which they agreed on a common plan to punish PNU supporters and evict them from the Rift Valley, with the ultimate goal of gaining power and to create a uniform voting block in their favor.

The Chamber was satisfied that there are reasonable grounds to believe that Ruto—in his capacity as the most representative Kalenjin leader and head of the organization established provided essential contributions to the implementation of the common plan by way of organizing and coordinating the commission of widespread and systematic attacks that meet the threshold of crimes against humanity, in the absence of which the plan would have been frustrated.

The evidence indicates that there are reasonable grounds to believe that Ruto, during the preparatory meetings and in the implementation phase of the plan, gave instructions to the perpetrators – either orally or via phone messages – to carry on acts of murders, displacement and destruction of property against PNU supporters. In the opinion of the Court, Ruto satisfies the subjective elements of the crimes and that he was aware of the widespread and systematic nature of the attacks committed against the civilian population, in the context of which the crimes were perpetrated. More specifically, the material presented to the Chamber established reasonable grounds to believe that Ruto:

i.        overall planned and was responsible for the implementation of the common plan in the entire Rift Valley;

ii.        created a network of perpetrators to support the implementation of the common plan;

iii.        directly negotiated or supervised the purchase of guns and crude weapons;

iv.        gave instructions to the perpetrators as to who they had to kill and displace and whose property they had to destroy;

v.        established a rewarding mechanism with fixed amounts of money to be paid to the perpetrators upon successful murder of PNU supporters or destruction of their properties.

With regard to the intention of the Prosecutor to charge Ruto, Kosgey and Sang as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity the Chamber is not persuaded that it is best practice to make simultaneous findings on modes of liability presented in the alternative. In other words, a person cannot be deemed concurrently as a principal and an accessory to the same crime.

Thus, it is the Chamber’s view that an initial decision has to be made on the basis of the material provided, as to whether there are reasonable grounds to believe that Ruto, Kosgey and Sang bear criminal responsibility for the crimes against humanity that occurred in the specific locations in the Republic of Kenya, as discussed in section II above, either as co-perpetrators, indirect co-perpetrators, or any other form of liability presented or that the Chamber finds appropriate.

In view of these conclusions, the Chamber’s assessment with regard to the attribution of criminal responsibility for Ruto, Kosgey and Sang is that it shall be confined to those crimes in respect of which the Chamber has found reasonable grounds to believe that they were committed namely, the crimes set out in Counts 1(murder), Count 2 (forcible transfer of population) and Count 4 (persecution). Having made these conclusions of fact and law, the Chamber by majority decided to issue summonses to appear for the three suspects, Ruto, Kosgey and Sang, having been satisfied that this measure is sufficient to ensure their appearance before the Court. These individuals are now set to appear before the Chamber on April 8, 2011 for the formal reading of the charges against them.

(Part IV will continue to examine the ICC case against Ruto)

 

Kibaki’s Continued Efforts to Defer ICC Case Is Doomed to Fail Without More

Kibaki’s Continued Efforts to Defer the ICC Case is Doomed to Fail Without More

As previously noted, any of the five permanent members of the UN Security Council can defeat Kibaki’s effort to defer ICC’s prosecution of the Ocampo Six. Three of the permanent members, US, UK, and France have categorically stated they will oppose therefore defeat any efforts to defer the prosecution at the UN. What then is Kibaki and his cadre’s objective for this so called lobbying? Again, as noted before, there cannot be any good reason for these continued efforts as far as the country is concerned. A local daily now postulates that all this is about keeping Muthaura in check so as not to spill the beans against the President himself. That’s obviously not a basis to defer the ICC trials.

As one who from the very beginning never believed that anyone other than those who in fact committed criminal offenses should be prosecuted by ICC for events that occurred post-election, including the Ocampo 3 (Uhuru, Muthaura and Ruto), I find these efforts to lobby the UN against these odds totally a waste of time and money. I certainly do not believe as others do that this futile exercise is nonetheless intended to lay the foundation to defy the ICC.

The sensible approach to address post-election violence (PEV) has to be faithfulness to, or at least the absence of efforts to frustrate implementation of the new constitution and when that is done or at least when there is an appearance it is being done, then ICC can be persuaded to allow the establishment of a local tribunal to try these suspects who should be acquitted either at the Hague or in Kenya unless they in fact committed criminal offenses.

So, my suggestion has been and continues to be Kibaki needs to sit down with Raila and map this thing out in the interest of the country but to do so would require great courage from Kibaki as he will be afraid of being accused of caving to Raila who is not liked very much by those hard on pushing this reckless course of setting grounds to defy the ICC. The 3 things Kibaki and Raila can agree on tomorrow and easily diffuse this time-bomb are (1) immediately create new law to allow for local prosecution of the perpetrators of PEV, including the Ocampo Six (2) asking Uhuru and Muthaura to immediately step-down from their respective positions (3) recommit to immediate and substantial judicial reforms, including vetting of judges and the two leaders consulting and agreeing on the appointments of the Chief Justice, AG and DPP and (4) working together to defeat any efforts to frustrate or impede implementation of the new Constitution.

Given Kenya’s reputation for evisceration of political MOUs, however, such an agreement should be witnessed and signed by Kofi Anan.  With this done, this writer is confident the two principals, Kibaki and Raila can go to the UN with a credible case for a deferral not based on the current bogus reasons. Needless to say, taking this approach has pitfalls for either of the principals, especially in the succession politics but that should be deferred to be dealt with another day.

If a deferral is sought and approved under this conditions, then two things come to mind that must happen: First, after immediate passage of a law setting in place a mechanism to try the PEV suspects, including the Ocampo Six, a special tribunal court must be constituted immediately comprised of eminent judges preferably from outside the country to try the cases.

Second, the new PEV law must provide that for those who cannot be convicted of criminal offenses, especially the Ocampo Six, they can still be tried in civil courts if the evidence establishes that they contributed to PEV but the evidence is not sufficient to warrant criminal conviction.

There are four good reasons for providing intermediate punishment in the form of civil penalty and these are (1) anything other than trial and punishment of the Ocampo Six and other PEV perpetrators will be seen as impunity gone amok (2) on the other hand, the alternative civil punishment would provide a way out for those desperately bent on defying the ICC regardless of the consequences upon the nation, given fear of going to jail at the Hague is Motivation Number 1 and perhaps the only reason why going to ICC is being fought so doggedly by Kibaki in their behalf (4) and more importantly, a civil penalty, if that’s all that is obtained against some of these suspects (assuming the other get jail time) is so much the better for the country as it is a form of accountability and punishment which should satisfy the victims of violence and bring closure to this matter once and for all.

 

Who Is William Ruto, Part II

Who Is William Ruto

Part II

In order to understand the International Criminal Court (ICC) case against William Ruto, it is necessary to provide background on this case that involves five other Kenyan suspects. In sum, on November 26, 2009, ICC Chief Prosecutor Luis Moreno-Ocampo (“ICC Chief Prosecutor or Ocampo”) sought authorization from Pre-trial Chamber II of ICC to open an investigation in connection with crimes committed during the 2007-2008 post-election violence in Kenya (PEV).

As a signatory to the Rome Statute and hence a State Party to the ICC, Kenya accepts the jurisdiction of the Court over war crimes, crimes against humanity, and genocide committed on its territory or by one of its nationals, thereby opening the door for Ocampo’s investigation into PEV. As a matter of law and practice, however, ICC does not open an investigation unless the subject state is unwilling or incapable of investigating the crimes; ICC is in other words a tribunal of last resort with preference given to the member states to prosecute.

Consistent with this approach, Ocampo and the Kenya government agreed on July 3, 2009 that allowed Kenya one year to start such investigation and/or prosecution and further agreed that the one year deadline be set for September 2009.

In efforts to keep ICC at bay, and following this agreement, Constitutional amendments that would have established a special tribunal, as recommended by the Waki Commission, Waki Commission, an international commission of inquiry established by the Government of Kenya to investigate PEV, failed to get the requisite consensus in parliament by the September 2009, leading to Ocampo seeking formal authorization from ICC to start his investigation.

In order to decide whether to open an investigation, ICC pre-trial judges requested clarification and additional information from the prosecutor on February 18, 2010. On 3 March 2010, the Prosecution filed his response to this clarification request which essentially comprised of a list of six names he had singled out as the most responsible for PEV based on investigations.

Almost all of Ocampo’s evidence thus far is contained in six boxes the Chief Prosecutor received from the Waki Commission on July 16, 2009. The documentation included a sealed envelope containing a list of suspects identified by the Waki Commission as those most responsible for the violence. On March 31, 2010, the Pre-Trial Chamber II of (ICC) authorized Ocampo to open his case against the six suspect as he requested.

On December 15, 2010, Ocampo publicly named the six suspects that he has evidence to show that they bear the greatest responsibility for PEV. The six suspects are, Deputy Prime-Minister Uhuru Kenyatta, Industrialisation Minister Henry Kosgei (now suspended for unrelated criminal case), Higher Education Minister William Ruto (now suspended for unrelated criminal case), Head of Civil Service and Secretary to the Cabinet Francis Muthaura, former Police Commissioner Major-General Hussein Ali and a journalist who works with a local Kalenjin FM station Joshua Sang.

Meanwhile, as the ICC process was inching toward indictment of the “Ocampo Six,” as the six suspects are commonly referred to, the political dynamics on the ground in Kenya took a twist of historic significance: Ruto, who is accused of masterminding efforts to have Kibaki renounce his illegal swearing in and instead have Raila installed as duly elected president, now is fully aligned with the same Kibaki and has become one of, if not the fiercest critic and opponent of the same Raila he staunchly supported in his successful 2007 presidential bid and whose party he ran and won a parliamentary seat, which he still holds albeit by name only as clearly is not part of the party anymore. Ditto Henry Kosgey, albeit to a much, much lesser extent, having recently apparently only opted to rise and fall with his fellow tribesman Ruto than remain on course with ODM.

Although a more detailed analysis will follow elsewhere in this series, it must be noted here that Ruto abandoning Raila and aligning himself with Kibaki is classic opportunistic maneuver similar to his ironically abandoning Moi to join Raila. This is because no sooner Ruto worked himself close to Kibaki, Kibaki stepped up his efforts to shield the Ocampo Six from going to the Hague, an obviously greatly beneficial albeit sacrificial switch in loyalty for Ruto, but only if the switch pays off with his avoiding trial for PEV.

More specifically, when Ocampo announced his list of suspects and made it known the train had left the station, Kibaki lobbied members of the African Union (AU) to support his efforts to defer ICC prosecution of the case, which he easily obtained, given most of these African leaders know ICC is always a footstep behind any of them. Many believe Kibaki took this strategy because (1) two of the suspects, Muthaura and Uhuru are dear and close to him for many reasons personal and political and (2) having Ruto on his side is a good and valuable check against Raila for his own plans for his successor in the next elections and no one believes that to be Raila, even though Kibaki would not mind if Raila is, in fact, elected.

In any case, after obtaining AU cover, Kibaki launched a full-blown campaign many believe is a waste of tax-payers money and time to lobby the UN Security Council for deferment of the ICC cases because 3 of its permanent members, the US, Britain and France have all said they will not support Kibaki’s deferral request. Given it takes only one permanent member of the UN Security Council to veto any resolution voted on by the other members, it follows therefore that Kibaki’s efforts to lobby the UN Security Council are therefore a waste of time and money as many believe.

Meritorious or not, Kibaki’s case for deferral, which is not supported by Raila, his partner in the coalition government, is essentially as follows: allowing the cases to proceed at the Hague will result in violence by those opposed to the move in Kenya thereby creating instability. Kibaki alternatively argues that he should be given time to set-up a local tribunal to try the suspects.

Those opposed to the deferral, which by all accounts is the rest of the country other PNU strongholds and some Ruto supporters oppose the deferral for the opposite reasons, namely, Kibaki and his part of the coalition are not interested in the prosecution of these suspects at the Hague or anywhere else, including Kenya and allowing the ICC prosecution to proceed will add, not take away from national security as justice will be done for the victims of the violence.

Despite all these indications that his efforts will fail, Kibaki and his team seem undeterred and as recently yesterday (March 17, 2011) his so called Special Envoy for the deferral campaign, Kalonzo Musyoka, was in New York trying to convince the Security Council to take on the matter and even though some media outlets reported that a meeting to take up the matter had been scheduled, sources at the Council said there was no such a meeting agreed to. As a local daily reported regarding cancellation or non-happening of the meeting, a “clearly miffed Musyoka sarcastically told journalists to ‘Go and ask Tinga about it, when questioned about the meeting’s failure.” The Standard Online, Thursday, March 17, 2011.

(Part III will continue to examine Ruto’s ICC Case)

 

Prof Yash Ghai Calls for Kibaki’s Impeachment

Prof. Yash Ghai Calls for Kibaki’s Impeachment.

Is anyone surprised by this salvo from all people Prof Ghai? About the only thing he has misstated is that Kenya is not a party in the ICC case; the Kenya government of 2007 and 08 is very much an unnamed and un-indicted co-conspirator in the case and without its involvement, we will not be talking about crimes against humanity.

Although as Prof Ghai argues a case of impeachment can be made against Kibaki, I am not sure this is a good idea simply because we have relatively smaller headaches we need to take a collective aspirin and cure than trying to impeach a president on a constitution that has yet to be implemented.

Prof. Ghai has, however, done good in this article by laying bare for Kibaki and all to see the wrongfulness and unconstitutionality of his conduct one hopes it’s a good jolt for the president and his cadre to stem the tide.

 

Who Is William Ruto? Part I

Who Is William Ruto?

Part I

Ruto appeared in the national political scene as Organising Secretary and later Treasurer of Youth for Kanu ’92 (YK92), a group that was specifically formed to drum up support for then President Daniel arap Moi in the 1992 election. From essentially an unemployed and penniless UON graduate who was at times allegedly seen loitering near the Hilton with other unemployed youth, Ruto made it big financially and quick simply by his close association with Moi. Ruto’s rapid accumulation of wealth at a relatively young age is attributed by many to graft and he has only passively denied this.

The attribution of Ruto’s wealth to graft is supported by a number of reasons. For example, in 2006, Ruto was charged with defrauding the Kenya Pipeline Company of huge amounts of money through dubious land deals and not surprisingly, that case still remains pending.  Ruto, however, goes about his business and political affairs as if the case does not exist and not even his court appearance betrays any sense of concern he might have about this case which could land him in jail.

That the Constitutional Court ruled in late 2010 that Ruto should face the charges, which cleared the way for the case to finally go forward and having Ruto suspended as Minister of Agriculture is more so the reason he should be concerned but clearly he is not.

Ruto has been implicated in other scandals as well, including the Maize Scandal. In early 2009 following a parliamentary inquiry, Ruto was accused by the Public Accounts Committee of Kenya’s Parliament of illegally selling maize from the Kenya National Cereals and Produce Board over which he had ministerial and administrative control. Mr Ruto on his part attributed the maize scandal allegations and claims of his involvement in corruption to the work of his “political enemies,” which was about the only thing he could say, given there were official documents linking him to the scandal.

When Ruto has not been busy amassing questionable wealth, he has been a seasoned political schemer. He opposed the constitutional reform all Kenyans were clamoring for during Moi’s term as president simply because he though this will interfere with Moi rule for “100 years” that ostensibly would assure him and others similarly situated of a lifetime of access to power and other things. Ruto also opposed a “yes” vote on the the referendum on Kenya’s new Constitution, which overwhelmingly passed and giving birth to the much longed for new law of the land.

During the waning years of the Moi presidency, Ruto displayed an unmatchable height of close-mindedness and obtuseness as he defended Moi and his pet project otherwise known as the Uhuru Project, which was Moi’s poorly conceived and executed plan to succeed him—unless he knew something nobody else knew. Be as it were, the public breathed a sigh of relief when Moi and his project were resoundingly defeated in 2002 with Kibaki sailing into State House courtesy of Raila with his “Kibaki tosha” declaration which essentially put the last nail in the Uhuru Project coffin and ensured Kibaki victory at the polls.

The good opportunist and schemer he is, Ruto beat this mindless Moi follower path until early 2006 when he abandoned Moi and declared his intention to run for president in 2007 on the KANU ticket notwithstanding the great odds stacked against him to getting nominated, let alone winning the presidency.  Having no chance of getting nominated by KANU, Ruto sought the nomination of the Orange Democratic Movement (ODM) as its presidential candidate, but in the party’s vote on September 1, 2007, Ruto placed a distant third with 368 votes, behind the winner, Raila Odinga (with 2,656 votes) and Musalia Mudavadi (with 391).

Following this trouncing at the hands of Raila for the ODM nomination, Ruto quickly recalculated, resigned from his post as KANU Secretary and declared his support for Raila on his quest for the presidency. Although Ruto enthusiastically joined ODM and was strategically made one of the five “Pentagon” members, many including this writer believed Ruto had one foot in the ODM bandwagon and the other outside ready to jump the moment he noticed the wagon was not heading where he needed to be. This was true even though it was at the time fully expected by all that ODM will sweep the country with Raila emerging at the top, which he did but never saw the inside of State House as President for reasons well known.

For anyone who is not aware, the sum of it is, the presidential election of December 2007 in Kenya ended in the electoral commission declaring Kibaki the winner while exit polls had clearly placed Raila Odinga ahead by far. Despite this corrupted declaration of Kibaki as the winner, Raila and ODM claimed victory but their declaration was in vein as Mwai Kibaki was hurriedly sworn in as president, an act which caused mayhem and bloodbath that no one could have predicted or foresaw coming other than perhaps the accused planners of the violence.

The post-election violence of 2007 abated only after Kibaki and Raila entered into serious negotiations and ultimately agreed to form a coalition government in February 2008. In the grand coalition Cabinet named on April 13, 2008 and sworn on April 17 2008, Ruto was appointed as Minister for Agriculture. Almost from the day he was appointed, Ruto started complaining against Raila for, among other things, not getting a “fair” share of ministerial appointments for Ruto’s tribesmen from Rift Valley when Raila had in fact done just that, given his half of the cake he had, so to speak.  If it is true as Ruto later told the Wako Commission that the Kalenjins voted en mass against Kibaki for oppressing them more than because they liked Raila, why was Ruto then demanding that the Kalenjins get more seats in the cabinet ostensibly as payback for his “delivering” them to Raila? The answer is Ruto is just a good opportunistic schemer: he will say or do anything to meet the political needs of the moment and deal with the consequences later if there is a conflict, often with some level of success.

From this point on, the relationship between Raila and Ruto deteriorated to the point Ruto was openly defying Raila and opposing him and the party at every turn on anything and everything, including major issues such as the Mau forest debate, passage of a new Constitution and more recently nomination of constitutional office holders. Ruto has, however, thus far not been successful in any of his battles with Raila on these major issues but many believe as mismatched the two are man to man, the bigger battle lies ahead in next presidential elections to succeed Kibaki in which all indications are Raila will be on one side and Ruto the other albeit the former as presidential candidate and the latter as Vice-Presidential candidate. The winner in that battle will have the last laugh. The loser will surely come to know the true meaning of that word

Before the big battles ahead on the  Kibaki succession, however, Ruto has a major battle to contend with and that is, his being named one of the ICC suspects for his role in the post-election violence of 2007.

(Part Two Will Examine the ICC Case Against Ruto)

 

Who is our First Lady in Kenya?

Sunday, March 6, 2011

Murugi and like-minded politicians in Kenya are a perennial nightmare for the country; they are ever so consumed with plotting and scheming against Raila nothing else seems to matter in their lives. However, Murugi is outdoing herself in trying to sully the First Lady Ida Odinga’s name. Yes, I say First Lady and that is no disrespect for the other First Lady, Lucy Kibaki. Let me explain myself: had the elections of 07 been conducted in conformity with the law, to put it mildly, all of these would be non-issues.

The elections were not conducted in conformity with law and thus the creation of the coalition government structure we have of having a president and a co-equal prime minister. Given the constitution recognizes that the two leaders are co-equal under the law, then it follows that their respective wives share equally in their state roles which are nowhere defined in the constitution. Traditionally, however, the wife of the leader of a country, is the First Lady. However, where as in this case, you have two equal leaders of the country under the law, then it follows their wives are respectively First Ladies; in other words, we have twin First Ladies.

This being the case, it follows therefore that both Shaban and Murugi come second to First Lady Ida and First Lady Lucy in all matters protocol and everything else of public interest or concern.

As to the MPs accusing the PM for “misusing” public resources to have First Lady Ida Odinga in the Kenya delegation, all one needs to know to see the hypocrisy and motivation of this bunch is that none of them would have raised the same accusation against the president had it been First Lady Lucy Kibaki who was in the delegation.

 

Kibaki and his futile efforts to defer ICC prosecution of Ruto & Company

Sunday, March 6, 2011

Kibaki and his futile efforts to defer ICC prosecution of Ruto & Company

March 4, 2011
Headline: Kibaki unleashes five ministers to lobby for deferral of Kenya ICC cases

Any of the five permanent members of the UN Security Council can defeat Kibaki’s effort to defer ICC’s prosecution of Ruto and his co-defendants. Two of the permanent members, US and UK, have categorically stated they will oppose therefore defeat any efforts to defer the prosecution. What then is Kibaki and his cadre’s objective for this so called lobbying? There cannot be any good reason for these efforts as far as the country is concerned.

As one who from the very beginning never believed anyone other than those who in fact committed criminal offenses should be prosecuted for events that occurred post-election, including Ruto, I find these efforts to lobby the UN against these odds totally mindless.

The sensible approach to address post-election violence has to be faithfulness to, or at least the absence of efforts to frustrate implementation of the new constitution and when that is done or at least when there is an appearance it is being done, then ICC can be persuaded to allow the establishment of a local tribunal to try these suspects who should be acquitted either at the Hague or in Kenya unless they in fact committed criminal offenses.

The irony is only Raila can save this bunch from going to the Hague by joining Kibaki in the quest for deferral and having a local tribunal set up to look into this but I don’t believe he could do so unless he is satisfied the culprits are not engaged in efforts to prevent or frustrate implementation of the new constitution and that there is actual judicial reform unstoppably taking place.

Kibaki’s recent about-face from torpedoing the constitution and imposing cronies in high office is a good first step going in this direction.

 

The Birth of a New Country South Sudan

The Birth of A New Country Southern Sudan

The all but certain emergence of a new country to follow the referendum in Southern Sudan, which begins today, has had me thinking: what does it take to raise a country from infancy onwards to maturity? This in turn triggered another question in my mind, why are countries formed; can we all not agree to live and be governed by one government?

Or put another way, can we not have a One World United, let’s call it the United World of the World (UWWW)? So before looking into what does a new country like the one about to be formed in Southern Sudan needs from infancy to maturity, I decided to look into these other questions that came in mind; not all of them. But the two I have mentioned above, namely, why are countries formed and why can we not live under one roof, in one country, that is.

The first thing I wanted to find out is how many countries are in the world as I write only to find out that, while it would appear to be a rather simple matter to determine how many countries there are in the world, it is in fact quite complex. This is due not only to the ever-shifting political landscape, but also because the term “countries” is somewhat fluid and open to interpretation.

A narrow definition of what a country is might look at a well-established group – such as the United Nations – and take its list of recognized members. Going by the United Nations, there are 193 recognized states, with 192 being members of the United Nations, and the Vatican City, which is a permanent observer with all rights of a member, save voting rights.

One could also take an established definition for what a state is, and find all states which match that definition. The most widely-accepted definition is given by the Montevideo Convention, from 1933. By these guidelines, a state must have a government, be in a position to interact with other states diplomatically, have a defined territory, and possess a permanent population.

A rough count of states that meet this criteria places the number of countries in the world at 201. That includes the 193 states recognized by the United Nations, as well as eight additional states: the Western Sahara, Taiwan, Northern Cyprus, Somaliland, South Ossetia, Transnistria, Abkhazia, and Nagorno-Karabakh. These states meet the criteria set out by the Montevideo Convention, but are all in a struggle with another, larger state, for independence, and so far have not been formally recognized by the United Nations.

An even broader definition could include some states which have been recognized by a number of countries, but have either failed to establish a steady government, or have failed to receive recognition by enough fellow states to truly meet the criteria of the Montevideo Convention. By adding in states such as the Cook Islands, Palestine, or the Chechen Republic, one could get to a much greater number of countries in the world – somewhere in the range of 210-230.

Going even broader, one can include countries that are part of a larger country, sometimes referred to as constituent countries. One obvious example of this would be the countries of England, Scotland, Wales, and Northern Ireland – all making up the single country of the United Kingdom. In most counts of the countries in the world, these four countries are counted as one, but they could easily be counted as four instead. By including these types of countries there could be many hundreds of more countries in the world.

Similarly, territories – such as the territory of Guam, a possession of the United States – are usually not counted in an official count, but are states by many criteria. These are referred to by the United Nations as Non-Self Governing Territories, and include an additional 16 territories.
So, going back to my question how many countries are there in the world, the short answer is 193 by the count of the United Nations, 201 by a narrow interpretation of the Montevideo Conventions and somewhere over 220 by a looser interpretation of the Conventions.

Having found out the number of countries in the world, I next wanted to know why do we even have these many countries; can we not all live under one country, one global village so to speak? Before I could even engage myself to answer the question, I spontenously thought about the familiar story about the building of the Tower of Babel found in Genesis 11:1-9 about the tower of Babel; could it offer an answer to this question?

The Bible tells us that a united people with one language living after the Great Flood, migrated to the land of Shinar, where they resolved to build a city with a tower “with its top in the heavens.” God came down to see what they were up-to and said: “Behold, the people is one, and they have all one language; and this they begin to do: and now nothing will be restrained from them, which they have imagined to do.” And so God scattered them upon the face of the Earth, and confused their languages, and they left off building the city, which was called Babel.

Did God intend to create many small nations out of one? I think so; therefore there is no reason to go against His wish and try to go back to the day before the Great Flood in forming one world, one nation so God provided the justification upon which these countries may be created and that is, diversity united by a common goal and purpose to celebrate the differences among as even as we are united in Him. Now, this is but one believe why I think countries are necessary but it is just that; one’s belief. In reality, a quest for political freedom from oppression drives formation of many a country.

That being settled, I come to the question that started all this for me; what does it take to raise from infancy to maturity, a new country like the soon likely to emerge in Southern Sudan? To be sure, a new country faces daunting challenges, not the least of which is stability, especially where those from whence they have been given birth, have unfinished agenda. Setting aside stability challenges related to overall security, there are several other challenges such a country will face and even though some of these challenges are relatively easy to address, such as picking the country’s name (akin to naming a child, except it is not a good idea to pick a name that already exists), or picking a national anthem, ditto, other challenges are complex and require a great deal of money and expertise to successfully tackle. The major ones that come to mind are the following:

• Establishing a political system and corresponding voting rights

• Establishing an economic system

• Establishing a legal system

• Establishing monetary and tax systems

• Establishing an agricultural system not only to feed the nation but also to start off the economy by providing resources for commodities trade.

• Establishing a basic education system, especially vocational education so that the country can build up its working force.

• Establishing a healthcare system to keep everyone healthy to fight the new government

• Establishing law enforcement, both a military to protect from outside forces and a policing force to enforce domestic peace.

• Along with all the setting up, it would be very useful to start trading with other nations as soon as possible.

• Securing and/or expanding relations with influential large nations that would give the new state political, financial, and possible military backing.

• Last but definitely not least – build a new and expanded infrastructure

• Establishing a monetary system

Tackling these challenges is not going to be easy, but, as is in the case of the birth of a new baby where the parents would have taken all the time necessary to study parenting and what comes with it, one can assume Southern Sudan President Salva Kiir has been doing just that relative to the birth of the new country and is ready to nurse and raise the soon to be born country. As is also the case in new births, one hopes family and friends are ready to offer a hand as necessary except changing diapers, which only the brave of the bravest family and friends would dare.

 

My comments and analysis of recent news and headline stories from Kenya

My comments and analysis of news and headline stories as from Kenya as published in the source for the news and stories:

February 16, 2011
Headline: Kibaki, Muthaura, security chiefs meet envoys over ICC deferral bidAny one of the five permanent members of the UN Security Council can defeat Kibaki’s effort to defer ICC prosecution of the named suspects. Two of the members, US and UK, have stated they will oppose therefore defeat the efforts to defer. What then is Kibaki dispatching Kenya’s envoys to do? Clearly it must be something apparent only to him and his team but whatever that is, it cannot be good.

February 17, 2011
Headline: [Speaker Marende’s] Ruling stuns PNU but excites ODM

Speaker Marende’s ruling today on the constitutionality of the list of nominees sent to parliament by Kibaki is the correct and right one as a matter of law and no one can disagree if they were serious. The ruling is not only the correct and right one, it is historic and a testament of a country’s conciousness as to the meaning of our new Constitution. Speaker Marende must be praised and prayed for in his stewardship of Parliament and its role in the new Kenya.

February 18, 2011
Headline: Uhuru dares PM to popularity contest [in Parliament]

The function of parliament is to pass laws after reasonable debate by presumably reasonable and well thought out representatives, even though sometimes both remain wanting. It is certainly not a place for popularity contest for the sake of popularity contest as Uhuru seems to believe. Relegating parliament to that level demeans it and one would hope we have matured as a country beyond such antics.

February 18, 2011
Headline: Kibaki fights back

If history teaches us anything, it is how many times we fail to learn from it. Kibaki takes note of his contribution in the promulgation of the new Constitution yet he is acting as if it doesn’t exist, preferring to do things the old fashioned way: let’s have Gicheru and his other buddies in the judiciary swing this thing his way. The problem is, Gicheru is already on the record saying the nomination in unconstitutional; so has the AG, the Constitutional Court in its preliminary ruling, the Speaker, and all lawyers who have spoken on this, including those not on ODM camp; did the geniuses advising Kibaki not tell him this?

February 18, 2011
Nominations Impasse: let reason prevail [commentary]

One hopes every politician in Kenya, especially those hellbent on pursuing short-sited, selfish and ill-advised objectives with no regard for the public interest get to read and re-read this solemn commentary; the case for common sense, reason and nationalism made in the commentary could not be stated any better.

February 21, 2011
Headline: Wako faults Kibaki nominations

It is said even a dead clock is right once a day; well, Mr. Wako is right on his position re Kibaki’s nominees. It is quite telling that Kibaki ignored his counsel and instead hopped on a train that’s about to derail and cause havoc, if its momentum is not halted by the only trio that can do so and that is the 3 judge panel. We are all holding our collective breaths and praying for them. Amen.

February 21, 2011
Why Kibaki withdrew list of nominees

Here is how I believe the history books will record this saga: In waging war against the nation, the field generals Uhuru, Muthaura and Ruto ill-advised their Commander In Chief, leading to major defeat of the Commander and his generals who surrendered and sought forgiveness from the nation. A peace loving nation obliged. Now, let’s hope a lesson is learned and never again go down this road; this is a new Kenya indeed.

February 27, 2011
Headline: Kenya’s Grand Coalition enters its last lap

It is indeed the final lap of a 3000m 2-man steeplechase race with man eating creatures in the deep ends of the water jumps lurking for a political kill for either of them who falls in it. Never mind Kibaki had an advantage from the start, having falsely started without being disqualified; Raila has done a good job in catching up with him and if they both hang on and cross the finish line, only the man eating creatures will be disappointed.

There is of course the question what happens when the race is over. One would hope Kibaki goes into retirement with some pride of accomplishment everything considered while Raila basks in the glory of victory having finished first in this grueling race.

February 27, 2011
Headline: Uhuru: Raila name soiled with chaos

Uhuru is not a credible presidential candidate for 2012 because (1) he lost miserably in 2002 largely because he was propped up there by Moi and had nothing else (2) he has since failed to show any reason he should not be rejected again (3) his recent table-banging and uncontrolled outburst only go to confirm this. If I were Uhuru I would try to work with Raila as opposed to Ruto and company.

March 2, 2011
Headline: Kosgey trial starts with state calling 22 witnesses

Given the time he has been at the till, Kosgey gets an A for not having a collection of corruption charges but even with these few, he was not charged or otherwise made to pay. The irony of it all is the government will never prove this one case they have brought against him. The case won’t even feature in his life story but abandoning Raila for tribal reasons will and that is unfortunate indeed.

March 5, 2011
Headline: Uhuru, Ruto, Raila wars take a new twist.

ODM should expel every single one of these rebel MPs and recruit progress minded candidates to campaign against them. ODM supporters in the diaspora will certainly mobilize and offer support to defeat these renegades. This need not be the case, however; these MPs should come down from their high horses and join their party leader in working to move the country forward.

March 6, 2011
Headline:Kibaki under pressure to drop ODM advisors

Kiunjuri says Ruto’s allying himself with PNU has rejuvenated the party. If Ruto’s dogged attacks on Raila based on lies, distortions and innuendo is rejuvenating PNU, then the party is in worse shambles than I thought and this confirms that it has no agenda to move the country forward. Plotting to prevent Raila from being reelected president without more is obviously not helpful in that regard.

Posted by Omwenga at 10:30 AM 0 comments

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Kibaki and his futile efforts to defer ICC prosecution of Ruto & Company

March 4, 2011
Headline: Kibaki unleashes five ministers to lobby for deferral of Kenya ICC casesAny of the five permanent members of the UN Security Council can defeat Kibaki’s effort to defer ICC’s prosecution of Ruto and his co-defendants. Two of the permanent members, US and UK, have categorically stated they will oppose therefore defeat any efforts to defer the prosecution. What then is Kibaki and his cadre’s objective for this so called lobbying? There cannot be any good reason for these efforts as far as the country is concerned.

As one who from the very beginning never believed anyone other than those who in fact committed criminal offenses should be prosecuted for events that occurred post-election, including Ruto, I find these efforts to lobby the UN against these odds totally mindless.

The sensible approach to address post-election violence has to be faithfulness to, or at least the absence of efforts to frustrate implementation of the new constitution and when that is done or at least when there is an appearance it is being done, then ICC can be persuaded to allow the establishment of a local tribunal to try these suspects who should be acquitted either at the Hague or in Kenya unless they in fact committed criminal offenses.

The irony is only Raila can save this bunch from going to the Hague by joining Kibaki in the quest for deferral and having a local tribunal set up to look into this but I don’t believe he could do so unless he is satisfied the culprits are not engaged in efforts to prevent or frustrate implementation of the new constitution and that there is actual judicial reform unstoppably taking place.

Kibaki’s recent about-face from torpedoing the constitution and imposing cronies in high office is a good first step going in this direction.

Posted by Omwenga at 10:25 AM 0 comments

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Murugi and like-minded politicians in Kenya are a perennial nightmare for the country; they are ever so consumed with plotting and scheming against Raila nothing else seems to matter in their lives. However, Murugi is outdoing herself in tr…ying to sully the First Lady Ida Odinga’s name. Yes, I say First Lady and that is no disrespect for the other First Lady, Lucy Kibaki. Let me explain myself: had the elections of 07 been conducted in conformity with the law, to put it mildly, all of these would be non-issues.The elections were not conducted in conformity with law and thus the creation of the coalition government structure we have of having a president and a co-equal prime minister. Given the constitution recognizes that the two leaders are co-equal under the law, then it follows that their respective wives share equally in their state roles which are nowhere defined in the constitution. Traditionally, however, the wife of the leader of a country, is the First Lady. However, where as in this case, you have two equal leaders of the country under the law, then it follows their wives are respectively First Ladies; in other words, we have twin First Ladies.

This being the case, it follows therefore that both Shaban and Murugi come second to First Lady Ida and First Lady Lucy in all matters protocol and everything else of public interest or concern.

As to the MPs accusing the PM for “misusing” public resources to have First Lady Ida Odinga in the Kenya delegation, all one needs to know to see the hypocrisy and motivation of this bunch is that none of them would have raised the same accusation against the president had it been First Lady Lucy Kibaki who was in the delegation.