Kudos KDF fight fire with fire and wipe out Al-Shabaab by Makau Mutua

I am a worried man; worried by the security challenges that my homeland faces. But none of these challenges are as foundational as the brazen terror attacks by terrorists and assorted thugs.

Last Saturday’s heinous terror attack — by Somali Al Qaeda affiliate Al-Shabaab — at the upscale Westgate Mall struck at the heart of the Kenyan elite.

Sinister killings in Wajir, Marsabit, and Mandera counties beg more questions than we seem to have answers for.
Let me show you my cards.
I was an early and unapologetic advocate of the war against Al-Shabaab. The malevolent terror group is a medieval menace that must be stamped out.
I was thrilled when the Kenya Defence Forces joined African Union forces to wrest control of Somalia from the terror group. I bet every Kenyan was very proud of the great work and sacrifices of the men and women of KDF in Somalia.
It would’ve been foolish for Kenya to play possum, or blind, to the Al-Shabaab menace next door. But everyone knew that the devious extremists — who would return us to the Stone Age — were bound to exact revenge. It was a question of when — not whether — they would retaliate. Now they have.
American President Benjamin Franklin once said “those who would give up essential liberty to purchase a little temporary safety deserve neither safety nor liberty”. The import of this is that a political democracy can’t exist where fear drives folks to trade away basic freedoms.
The fear of attacking Al-Shabaab — because they would counter-attack — would simply have appeased the monster. Just like a “nation of sheep begets a government of wolves” — to cite the famous American broadcast journalist Edward R. Murrow — cowering in the face of a bully simply emboldens him.
Mexican revolutionary Emiliano Zapata had it right — “it’s better to die on your feet than to live on your knees”.
That’s why Kenya must fight fire with fire. Methinks Kenya must show Al-Shabaab — and the thuggish marauders in Northern Kenya — who is daddy. No state can survive the sort of insecurity creeping into Kenya.
Which begs the question — what can the Kenyan state do to fully control the country’s security?
Very soon no corner of the country will be safe. I am not advocating a police state. But I am asking for smarter police work, greater and clean security intelligence, and zero tolerance for corruption within the armed and security forces if Kenya is to be secured.

Some reports indicate that criminal and terror rackets may have corruptible moles within some of the Intelligence and security services.

Kenya can’t effectively surveil and deter terror attacks with a porous security apparatus. Effective and credible policing requires uncompromised professionalism within the ranks.
Let me return to the meaning of the Westgate terror attacks. Without doubt, the mall is a high value target for terror groups. There’s no more inviting target than upper class Kenyans and well-heeled expatriates.
The September 11 attacks in the United States taught terrorists one valuable lesson — you could deal a terrible blow to the economy by strategic attacks that strike at commanding heights of the economy, or state.
My guess is that the Al-Shabaab attackers sought to inflict pain on the Kenyan economy by demonstrating the vulnerability of a key economic venue. Scare away the shoppers, and you deal a blow to the economy. But this is what Kenyans and expats can’t afford to do — be scared away.
The government will have to demonstrate that it’s in control — and that shoppers are safe — if the terror group’s strategy is to fail. I suggest that Kenya works with states that have more experience with tracking such groups and preventing terror attacks.
Trans-border terror groups like Al Shabaab target not one country, but all. It’s telling Al-Shabaab simulated the 1998 Al Qaeda terror attacks in Nairobi and Dar es Salaam — by the simultaneous attacks in Mogadishu and Nairobi. That suggests more needs to be done to completely vanquish the group in Somalia.
Kenya must strike back, and wipe the group off the map.
Finally, I think there is a “moral causal link” between the attacks in Northern Kenya and the one at Westgate. The inability to put down the attacks in Wajir, Mandera, and Marsabit has exposed Kenya’s soft underbelly.
It’s given Al-Shabaab and other militia groups the impression that it’s open season. These are alarming developments that could destroy the country.
Kenya faces multiple challenges, but security must now top the list. The security question must be addressed now before it’s too late.
The primary responsibility of statehood — its legitimate claim to sovereignty and independence — is the ability to effectively govern and control its own territory. A state cedes the right to self-governance if it fails this crucial test.

Kudos KDF fight fire with fire and wipe out Al-Shabaab by Makau Mutua

 

 

 

Looking East won't end Uhuru's troubles by Makau Mutua

In Things Fall Apart, celebrated author Chinua Achebe “pinched” a line from Irish poet William Butler Yates.

The poem — The Second Coming — contains vintage one-liners that defy time.

Several of them describe President Uhuru Kenyatta’s predicament, and the quandary of his regime. Nowhere is this more poignant than in his “escape” East to counter President Barack Obama’s snub, and his awkward dance with the West.

Mr Kenyatta was declared winner of the March 4 election, but “everywhere the ceremony of innocence is drowned”. The poem says that the “best lack conviction, while the worst are full of passionate intensity”.

We should ask — “can the centre hold,” or is “mere anarchy loosed upon the world?” Will “things fall apart?”

I chose the poem because it best captures the political – and emotional – turbulence eating at Kenya today.

We’ve never been here before — not even in the darkest days under Kanu’s President Daniel arap Moi. Never before have we been so divided, and devoid of civility. The filthiest epithets easily roll from our native tongues.

MPs openly loot the national purse, and then scornfully ask us mta do? The floodgates open. Every worker and professional follows suit and threatens a strike to pig at the trough.

Terrorists and assorted criminals kill and maim Kenyans with impunity. The lethality and brazen nature of the attacks point to a state under siege. The republic seems completely flummoxed.

At the centre of power — in State House — the fledgling regime looks like deer caught in the headlights. It says it’s implementing a Constitution it doesn’t seem to believe in.

A DIVIDED COUNTRY

Mr Kenyatta and Deputy President William Ruto can’t decide what to do with devolution of key functions to the counties. They want to cannibalise county governments, but that’s easier thought than done. Nor do they seem to like the Senate.

The new Cabinet and senior bureaucrats are either fumbling for direction, invisible, or are clueless.

The police chief is at cross-purposes with his civilian overseer. It seems the “falcon cannot hear the falconer”. Is “mere anarchy loosed upon the world”? Who will arrest the downward spiral, and restore sanity?

This brings me to the two elephants in the room and why Mr Kenyatta is running East. Everyone, even the defiant Jubilee crowd, knows the March 4 election left the country deeply divided.
We can’t bury our heads in the sand, or manufacture false unity or consensus that doesn’t exist. Nor can we simply “accept and move on”. This is the attitude that has failed Kenya in the past, and contributed to festering historical wounds.

Let me confess: I will throw up the next time someone tells me to “accept and move on”.

Tribal jingoism is the bane of our existence. So are statements like “tyranny of numbers”. How do we avoid “turning and turning in the widening gyre?”

The second elephant — why Mr Kenyatta is really darting East — is The Hague trials for crimes against humanity.

Don’t let anybody lie to you — Mr Kenyatta and Mr Ruto are spending sleepless nights. They’re using every state lever to make the International Criminal Court go away. But it can’t, and won’t. This is their top priority.

Attorney-General Githu Muigai has been put on the ball. The push to have the African Union stare down the ICC is proof positive. That exercise came a cropper. Nor will any “circumlocutions” at the UN Security Council amount to a hill of beans. It tells you that a regime whose two top leaders are personally beleaguered can’t keep its eyes on the ball.

The dagger to the heart of Mr Kenyatta’s regime was delivered by US President Barack Obama. He snubbed Kenya on his African tour. It’s common knowledge that Mr Obama would have liked to use the American state to lift Kenya. But the Kenyan state has shot itself on every conceivable foot.

First, it was former President Mwai Kibaki’s bungled election and the subsequent blood-letting. Then, it was this year’s disputed election of a duo charged with heinous international crimes. In tennis, these are called “unforced errors”.

Let me tell you something — Kenyans missed a golden opportunity to leverage “their son” in the White House. It’ll likely never come again. Does Mr Kenyatta’s refuge lie in turning East?

Every Third World leader who has been shunned by the West tries to “find love” out East. Mr Kenyatta isn’t different.

During the Cold War, many an African state played the concubine to either the West or East. Some — like Somalia — were devastated by that state of concubinage. That’s why Mr Kenyatta must be careful.

He went to Russia and China. The former is a bear, the latter a dragon. He may be the scion of the Burning Spear, but his hosts were beasts of prey. They know how to pounce on their kill. They know Mr Kenyatta is unloved by Kenya’s historical masters. He’s vulnerable. That’s why Mr Kenyatta’s $5 billion “agreement” with the Chinese could be one-sided.

Neither the Russian bear, nor the Chinese dragon, are in love or party to the ICC. That’s why Mr Kenyatta was at home with them. That explains his photo-ops with top Chinese leaders, although the Russians didn’t exactly oblige. The rule of law, human rights, democracy, and The Hague trials are simply minor details to them.

It’s good news, the memory of JKIA’s mysterious inferno has receded without too much international image damage.

But I have news for Mr Kenyatta. Running East won’t resolve the domestic crises of insecurity and economy, nor make the ICC disappear.

Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC. @makaumutua.

Looking East won't end Uhuru's troubles

How Jubilee leaders are playing into Raila's hands by Makau Mutua

All isn’t well in the house that the son of Jomo built. The Jubilee regime – now in its fourth month – is in full panic. The “digital” regime is turning out to be truly “analogue”. Gone is the euphoria of the early days. No more jacket-less and rolled-up sleeves at State House conferences. The “new-look” Cabinet of “technocrats” is invisible.
The regime has lunged from crisis to crisis. This seems to be our “winter of discontent”. Which begs the question – why hasn’t Jubilee hit the ground running? Methinks I know why. Jubilee has too many “bogeymen” and “soft underbellies”. There’s a crisis of confidence within the inner sanctum. It won’t get any easier with The Hague trials looming.
Let me tell you why Jubilee is choking. First, you can’t effectively govern if you see “dire threats” and bogeymen everywhere. Most of these threats are either imagined, or “unforced errors”. Let’s focus on Jubilee’s most important bogeyman – former PM Raila Odinga.
Mr Odinga has become a nightmare for Jubilee. But – and you can take this to the bank – this is none of Mr Odinga’s doing. It’s Jubilee that’s turned Mr Odinga into a “bugaboo”.
Rather than focus on its programmes, Jubilee has chosen to lavish Mr Odinga with unwanted attention. Instead of burying Mr Odinga – after “beating” him in the March 4 elections – Jubilee has inexplicably decided to resuscitate him. It’s the most bone-headed thing I’ve ever seen.
Mr Odinga was either going to retire, or focus on re-building Cord in readiness for 2017. He appears to have chosen the latter. It would have been in Jubilee’s self-interest to let Mr Odinga expend his legendary energies on Cord.
But no – Mr Kenyatta’s party has chosen to detract Mr Odinga from Cord. It’s done so very crudely – by poking Mr Odinga in the eye every chance it gets. You can’t humiliate a lion of Mr Odinga’s international stature and get away with it.
Who can forget the mean-spirited slights – denying Mr Odinga access to VIP lounges, demanding that he “retires” from politics to enjoy benefits of a former PM, withdrawing bodyguards and ordering that he returns “official” vehicles?
I wonder who is advising Mr Kenyatta. A new government has no time to waste chasing after its “vanquished” opponents. But the government has spent the last two weeks imagining that Mr Odinga’s former campaign manager, Mr Eliud Owalo, is planning a Kenyan “Arab Spring”.
I laughed so hard I almost cracked a rib. Why make such wild and baseless claims? It’s what we call the theatre of the absurd.
It was a flashback to Kanu regimes of yore – like former AG Charles Njonjo warning that it was “treason” to “imagine” the death of the President. Or the Moi regime accusing me and fellow University of Nairobi leaders of being paid by the Soviets in 1981 to overthrow the government.
The Kenyatta regime keeps on making the same mistake time and again. At the Kisii funeral of school children who perished in a tragic accident, Jubilee leaders were shouted down and forced to abandon their speeches. The surging crowd demanded that Mr Odinga addresses them.
The former PM didn’t disappoint – he delivered a stinging critique of Mr Kenyatta’s fledgling government. The crowd ate up every word. It was a good thing Mr Kenyatta skipped the event. That’s the role of the opposition in a democracy.
But that’s not the way Jubilee mandarins saw it. They accused Mr Odinga of orchestrating their humiliation. Once again, they played into Mr Odinga’s hands. They are fuelling him free of charge.
Jubilee has made other tragic blunders. Take the debacle over the Makueni Senate seat left vacant by Senator Mutula Kilonzo’s death. Jubilee spent inordinate energy to block lawyer Kethi Kilonzo from succeeding her dad. This was unseemly, petty, and heartless. As if that wasn’t enough, Jubilee sought to block Ms Kilonzo’s brother – lawyer Mutula Kilonzo Jr – from running. How these mean-spirited tactics endear Jubilee to the people of Makueni beats me.
But Jubilee was bent on alienating Makueni voters with self-inflicted wounds. This isn’t how you win friends and influence enemies.
This is no way for Jubilee to expand from its traditional strongholds among the Kikuyu and Kalenjin. Has Jubilee ever heard of soft power?
No single Jubilee programme has gotten off the ground. Its most touted programme – the primary school laptops – is teetering on the brink of collapse. It’s ill-thought, and seems to be a boondoggle for vulture capitalists. Why would kids be given laptops when they have no desks, or computer-literate teachers? This is a populist project that can only end in tears.
Other crises have sucked oxygen out of the regime. It was the legislators who set the ball rolling by raiding the public purse. Kenya has the second highest paid legislators after Nigeria. Mr Kenyatta and Mr Ruto failed to stop MPs from fleecing the public. Quite frankly, it was the teachers – not MPs – who deserved a pay raise.
It’s clear the Jubilee regime doesn’t have traction. The big elephant in the room is what’s going to happen once The Hague trials start in September. I expect that the International Criminal Court will reverse itself and require that Mr Ruto be present for every session of the trial.
He will be out of the country for large amounts of time. So will Mr Kenyatta when his trial begins in November. My point is that the government won’t have adequate time to get its programmes on track once the ICC trials start. There’s reason for Jubilee to panic.
Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC. Twitter @makaumutua.

How Jubilee leaders are playing into Raila's hands by Makau Mutua

Why ICC cases cannot be tried in Kenya by Makau Mutua

Perish the thought – unless you are smoking something. The Hague cases against President Uhuru Kenyatta and DP William Ruto won’t be tried in Kenya, or Tanzania. Nada – never.
I know it’s Law 101 that justice must not only be done, but must be seen to be done.
The accused normally face justice in the jurisdiction of the crime. Victims confront their tormentors “at home” – at the scene of the crime. But that’s for regular murders and assorted felonies. It’s not for the most egregious heinous crimes – like crimes against humanity.
Justice would be extinguished if Mr Kenyatta and Mr Ruto are tried in East Africa. I will tell you what – you don’t pull a lion’s tail in its own lair.
Voted overwhelmingly
No one should have been shocked that judges at the International Criminal Court voted overwhelmingly to reject staging The Hague trials in Kenya or Tanzania. Frankly, I thought the Trial Chamber was out of its mind to even contemplate – let alone recommend – that the trials be conducted in Kenya.
Whew – the Trial Chamber may be in desperate need of a little education on how “justice” works in our neck of the woods. Trying the duo in Kenya is like asking an emaciated, chang’aa-ravaged addict from Murang’a – or Kitui – to duke it out with boxer Mike “Iron” Tyson at his prime.
The fight would be over before the referee blew the opening whistle. Don’t believe the biblical fable – tall-tale – about David over Goliath.
Let me break it down for you. The purpose of a criminal trial isn’t to amuse the public. ICC cases are only initiated when the court believes the crime was “probably” committed. That’s not all – the court must believe that the prosecution has a fair shot at making the charges stick.
There must be “reasonable grounds” to justify the issuance of summons or an arrest warrant.
The prosecution must further show “sufficient evidence” to warrant the confirmation of charges. These hurdles are key to ensuring a fair trial. Neither the prosecution, nor the defence, should be put in a position where it is impossible to prepare for trial.
I have three reasons trying the cases in Kenya would have sank them. First, it’s not a secret that The Hague trials sent former President Mwai Kibaki into a tizzy. He spent the twilight of his regime trying to save the ICC targets – the “Ocampo Six” suspects and then the “Ocampo Four” indictees – from damnation.
Mr Kibaki sent former Vice-President Kalonzo Musyoka on an ill-fated African Union “shuttle diplomacy” to sabotage the ICC.
The Kenya Government’s admissibility challenges fell flat before the court. Mr Kibaki breathed a sigh of relief when ICC Prosecutor let go of Mr Francis Muthaura, but was still miffed Mr Uhuru Kenyatta was in the vice of the ICC.
There’s no doubt the Kibaki state was determined to save Mr Kenyatta from The Hague at all costs. AG Githu Muigai seemed to have been put on the ball to frustrate the ICC. ICC Prosecutor, the indomitable Fatou Bensouda, has repeatedly accused the “sweet-tongued” Muigai of devious sabotage.
She’s called him the legal face of Kenya’s lack of cooperation with the court. He has – by his own public admission – refused to turn over certain documents deemed crucial by the prosecution. Nor is there any reasonable doubt that Mr Muigai is at the centre of legal strategies by the state at the AU and the UN Security Council to upend the trials. He’s the chief government legal adviser.
That’s why the ICC judges were right not to send the trials back to Kenya, which they must consider a “hostile state”. It stands to reason that a government that has expended so much diplomatic capital – and treasure – to obstruct justice can’t be trusted to host the trial.
Unpopularity with Kenyans
I am sure the judges felt they would be under surveillance, if not direct intimidation.
I believe Jubilee bloviators and goons would’ve been unleashed to lay siege on the proceedings to prove their “unpopularity” with Kenyans.
Neither could the judges trust Tanzania as host. It’s clear President Jakaya Kikwete has been more concerned with pleasing Mr Kenyatta than seeking justice for victims. The judges can see a trap when they smell one.
Second, you’d be a fool to believe that witnesses and other Kenyans on the prosecution’s side would confront Mr Kenyatta and Mr Ruto on their home turf. The Chinese have a saying – “the peacock that raises its head gets shot”. The duo has rabid supporters and the machinery of the state under total command.
Only if you had a death wish – or were extremely foolish – would you take the stand against them in Nairobi. The ICC has alleged disappearances, bribery, intimidation, recantation, and even killings, of witnesses.
This is bone-chilling stuff. I believe the prosecution has given this information to the judges. There’s no way – nyet – the judges could move the trials back to Kenya with this dossier.
Finally, the ICC doesn’t want to be seen as a wuss – a cowardly gutless wimp.
It has already embarrassingly conceded too much to Mr Ruto when it ruled that he didn’t – contrary to its own statute – have to be physically present for all the sessions of the trial. This was a total travesty.
All defendants – whatever their station – must be treated equally. No special favours.
One more ruling like that and the ICC will become a laughing stock. The ICC will rise or fall on the Kenyan cases. That’s why it has to stand its ground.
Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC. Twitter @makaumutua.

Why ICC cases cannot be tried in Kenya by Makau Mutua

What do Kenyans owe former Premier Raila by Makau Mutua

I don’t know about you, but I am disgusted by a matter of no small consequence. That’s the degrading abuse President Uhuru Kenyatta’s government is meting out to Cord leader Raila Odinga. It’s unbecoming. No — it’s actually primitive.
Equally alarming is the lack of public outcry. Would Kenyans be as meek if the “victims” were former presidents Daniel arap Moi and Mwai Kibaki?
Methinks not. Which begs the question — what do Kenyans owe Mr Odinga? What does any country owe its freedom fighters? Why would Kenyans worship distant anti-apartheid icon Nelson Mandela, but allow the Jubilee administration to spit on Mr Odinga, their local liberator?
Don’t argue — Mr Odinga is the closest thing in Kenya to the incomparable “Madiba”.
The snubs and petty assaults by state functionaries on Mr Odinga look innocuous, but they are huge. Let’s sample a few. He’s denied access to VIP lounges at JKIA. And then forced to line up and wait for his baggage at the “hoi polloi” conveyor belt upon arrival from trips abroad. His security detail and guards are withdrawn.
He’s denied pension benefits and VIP perks unless he “retires” from politics. Let’s call a spade what it is — because it’s not a spoon. The State is trying to rub the man’s nose in the dirt. It’s “gratuitous violence,” and a naked assault on the man’s dignity. The question is why? What’s to be gained? Who’s giving these demeaning commands?
I don’t really care for many in the Jubilee crowd who demonise anything Mr Odinga does. Those bloviators and hissing mobs aren’t my concern. I’d like to know what Mr Kenyatta’s role — and DP William Ruto — has been in this sad saga. Is it State policy to humiliate Mr Odinga by “murdering” his spirit? If not, why hasn’t Mr Kenyatta publicly addressed it, and openly reprimanded — if not fired — the complicit factotums?
His silence can only mean one thing — acquiescence, or direct involvement. It seems clear Jubilee ideologues are nervous about Mr Odinga, and have advised he be cut off at the knees. There’s paranoia Mr Odinga is “regrouping” to launch a counter-attack on the fledgling Jubilee administration.
I am convinced that when history is written, it will show that Mr Odinga was the most reformist politician in Kenya’s first 50 years. This is simply an objective fact. Do I think Mr Odinga has been, or is, perfect? Not by any stretch of the imagination.
He’s made many mistakes, some of them serious. But on balance, no other Kenyan politician — alive or dead — can hold the reformist candle to him.
He’s suffered gravely in the vineyards of struggle. He was brutally detained for almost a decade for fighting for democratic change. But he bounced back every time to fight again. Even when he was wronged — as was apparent in the 2007 polls — he put the nation first.
Kenyans know the sacrifices Mr Odinga has made. It’s unarguable Mr Kenyatta and Mr Ruto are direct beneficiaries of the democratic space Mr Odinga helped create, and which they’ve exploited to attain power.
In John 4:38, the holy book says “I sent you to reap what you have not worked for. Others have done the hard work, and you have reaped the benefits of their labour”. That aptly describes Mr Kenyatta and Mr Ruto — the duo sits atop a state shaped largely by the yeoman work of Mr Odinga.
Mr Kenyatta and Mr Ruto have never broken any sweat struggling for reform. That’s why it’s maddening their regime is bent on burying the man who laid the golden egg.
I know most Kenyans see politics from the prism of the tribe. That’s why they can’t see straight. But if they could don national lenses, they’d see that Mr Odinga has no peer in politics. He towers over a field of dwarfs. It’s true he wasn’t always the statesman he is today. I was critical of him when he seemed to be more “Luo” than “Kenyan”.
But that’s a problem he’s long transcended. I was critical when I thought he made certain deals that were either unprincipled, or driven by short-term political gains. And I was critical when he seemed to bargain away certain reformist agendas. But he’s overcome these hurdles. He’s a rare true nationalist among senior leaders.
Let’s put “Railamania” and “Railaphobia” aside and candidly assess the man they call Jakom, or Agwambo. He has the progressive left politics of his famous dad, the late doyen of opposition politics, Jaramogi Oginga Odinga. He has the fire of the “people’s millionaire,” the martyred late Nyandarua North MP JM Kariuki. He has the vision of KPU ideologue — and martyr — the late Pio Gama Pinto.
He rekindles the nationalist embers lit by Mau Mau supremo Dedan Kimathi and Nandi chief Koitalel arap Samoei. He has the moral courage of MeKatilili wa Menza, the Giriama anti-colonialist heroine. OK — I won’t fault him for not possessing the clairvoyance of Syokimau, the Kamba priestess who foresaw colonialism. That’s what I call iconic.
So, what do Kenyans owe Mr Odinga? I would suggest that first all regime slights and juvenile taunts of Mr Odinga be stopped pronto. That’s Mr Kenyatta’s duty — the buck stops at his desk. He and Mr Ruto should stop running scared of Mr Odinga. I know Kenyan history well enough to know that successive governments haven’t celebrated reformers.
They’ve been more apt to kill, detain, torture, and persecute democracy champions. This must change — starting now. Kenyans — and the government — owe Mr Odinga respect and reverence, not small-minded, mean, inexplicable assaults.
Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC. Twitter @makaumutua.

What do Kenyans owe former Premier Raila

Why the Jubilee leadership is afraid of Raila by Makau Mutua

In democratic politics, “adversaries” are not “enemies,” but “opponents”. But methinks that President Uhuru Kenyatta’s regime is treating Cord leader Raila Odinga as an “enemy,” and not an “adversary”.
Since the ascension of Jomo’s scion to the pinnacle of power, Mr Odinga has been subjected to mean, petty and humiliating slights by state functionaries.
It hasn’t stopped there. His spouse, Mrs Ida Odinga, hasn’t been spared, either. Nor has Wiper leader Kalonzo Musyoka.
But it’s Mr Odinga who’s the prime target of these “primitive attacks”.
The question is why. What does Mr Kenyatta, or Deputy President William Ruto, have to gain by rubbing Mr Odinga’s nose in the dirt? What’s the rationale here?
Let me refresh your memory if you’ve missed the brouhaha over Mr Odinga’s “VIP woes”. But I will spare you the gore details. Bottom line is that Mr Odinga and Mr Musyoka, as well as their spouses, are being “jerked around” like common raia, or hoi polloi. Both Mr and Mrs Odinga have been denied the use of Kenya’s VIP lounges.
So has Mr Musyoka. Those on Jubilee’s side seemed to relish Mr Odinga’s public humiliation. Majority Leader Aden Duale “apologised” to Mr Odinga, but opined that the former Prime Minister was “inferior” to the President, his deputy, and ex-presidents.
The rambunctious Mr Duale was clearly “carrying water” for State House. His hair-scratching and tortured “explanation” didn’t cut it.
Isn’t Mr Odinga an ex-prime minister, like Britain’s Tony Blair, or Italy’s Silvio Berlusconi?
Would Mr Kenyatta’s regime deny them VIP treatment were they to grace Kenyan soil?
Would Mr Kenyatta deny former President Mwai Kibaki, Mr Odinga’s co-principal in the defunct coalition government, VIP honours?
Mr Odinga was Mr Kibaki’s “equal” in the last government, and that alone should settle the matter.
But alas, not in the mind of the Jubilee state. Mr Kenyatta and Mr Ruto have kept completely silent on the matter. They must know the buck stops at their desks. Their silence implies complicity, or worse.
My crystal ball tells me Mr Kenyatta and Mr Ruto are deathly afraid of Mr Odinga, the veteran of opposition politics.
Even though they “defeated” him in the March 4 elections, they are looking over their shoulders. That’s why they want to crush and “murder” his spirit to vanquish him for good.
They must be seeing visions of the Kanu one-party state of which they are the ideological – and biological – children.
It stretches credulity that a factotum like Secretary to the Cabinet Francis Kimemia could, without authorisation “from above”, dare a takedown of Mr Odinga.
Mr Kenyatta ought to fire Mr Kimemia if he acted alone, and publicly apologise to Mr Odinga.
It’s not rocket science to connect the dots, and figure out why Jubilee shudders at the mention, or sight, of Mr Odinga.
Their mobs tend to go into uncontrolled paroxysms.
Jubilee ideologue Mutahi Ngunyi let the cat out of the bag last week on his Twitter account. He’s usually a good barometer of what the Kenyatta insiders are thinking, and plotting.
On June 8, he told Mr Kenyatta and Mr Ruto on Twitter to “stop holding hands and deal with Mr Odinga unapologetically and decisively”.
He alarmingly warned that Mr Odinga “was regrouping”. He had concluded that the “honeymoon [playing nice with Mr Odinga] is over”.
Isn’t “regroup” what the opposition does in democratic politics? Or isn’t Kenya a democracy?
Which begs the question – what does the erudite Mr Ngunyi mean that Mr Odinga must be dealt with “unapologetically and decisively?” I recall that Mr Odinga and Mr Musyoka surfaced at State House to congratulate Mr Kenyatta and Mr Ruto on their “victory” soon after the Supreme Court denied the Cord-Africog petition.
Mr Kenyatta must have been salivating at the sight of his nemesis falling on his sword.
I certainly would have advised Mr Odinga against the visit. But I believe it showed Mr Odinga to be a magnanimous statesman. So why is the Kenyatta regime paying him back in such an ugly coin? Methinks it’s because Mr Odinga refused to be Mr Kenyatta’s international “errand boy”.
Let me warn the Jubilee regime. The Book of Mathew 7:21 teaches us to “do unto others as you would others do unto you”. That’s not idle moral, or religious, advice. It’s an ageless nugget of wisdom common to most cultures. It’s a central civilisational rule. It teaches that “civility” is the pivot of all human relationships.
Poking Mr Odinga in the eye is synonymous with spitting at half of Kenya – which voted for him – in the face.
This is my question – what’s to be gained by such spiteful and pitiable behaviour? Why is Jubilee so bitter with Mr Odinga if it, indeed, won the election fair and square?
Mr Kenyatta needs friends, not more enemies. Why? That’s because he’s not out of the woods. His victory was tenuous and highly contested. He, and Mr Ruto, his deputy, have The Hague noose around their neck.
No amount of bloviating by Mr Kenyatta’s supporters will make the charges for crimes against humanity go away.
He will be navigating very tricky legal rapids for the next several years. He could be convicted either in person, or in absentia.
Why make Mr Odinga one more enemy?
Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC. Twitter @makaumutua.

Why the Jubilee leadership is afraid of Raila by Makau Mutua

Why Kenya's cabinet secretaries are figureheads by Makau Mutua

Every action has a counter-action. The “boomerang” – or counter-reaction – may be unintended. Remember this phrase – “choices have consequences”.
This is particularly true in the rationale behind a Cabinet of so-called “technocrats”. What’s my point? The idea may have been great, but it’s impracticable in Kenya today.
Our constitutional design is too advanced for Kenya’s fledgling political culture. Many of the Cabinet secretaries are simply not technocrats.
And those who are technocrats are ensconced in completely the wrong dockets. Which begs the question – was the mismatch deliberate, or the ugly child of unintended consequences? Methinks it’s both.
The Constitution borrowed the idea of severing the Cabinet from the Legislature from the United States. But the “constitutional heist” may have been ahead of its time. Unlike Kenya, the US Cabinet isn’t the locus where “tribes” bargain for the national cake.
Sure, the American Cabinet should “look like America,” but it doesn’t share out America’s goodies. That’s done through the budgeting process where the Executive must bargain – and compromise – with Congress. In Kenya, the Cabinet was traditionally the “national tribal council of elders”. This is where every tribe – especially tribal elites – pigged at the trough.
You got nothing if “your own” wasn’t in Cabinet. That’s why the Cabinet was a tool of national stability. But that’s changed – for now.
Unlike previous ministers, today’s Cabinet Secretaries are unelected and have no political power to steer pork to their “tribes”. Let’s look at a few.
Foreign Secretary Raychelle Omamo has been thrown into the deep end of the pool. It’s a docket in which she can’t swim, and is out of her depth.
I hope she doesn’t drown. That’s because she knows absolutely nothing about defence, weapons systems, or military strategy. I doubt she can tell a brigade from a battalion, or a general from a colonel. She may know much less about military culture, traditions, and protocol.
How is she supposed to superintend over a military-industrial complex in which she’s a complete “alien”? What’s up here?
Methinks President Uhuru Kenyatta and Deputy President William Ruto couldn’t agree on a “substantive” appointment in defence. Neither would let the other commandeer this powerful portfolio.
So the compromise was to give it to a person who’s completely unqualified, and from a community – the Luo – in which she has absolutely no political base.
That way she couldn’t rally the Luo behind her, or use her post to bargain for largesse for the community.
Her appointment – and power – is completely dependent on what Mr Kenyatta, or Mr Ruto, delegate to her. She’s nothing but a figurehead, a complete token. The “Luo” get the Defence post, but it’s not worth a measly cent. This is repeated in other Cabinet posts.
Take the case of hotelier Joseph ole Lenku who’s been nominated for the powerful Interior docket. This post is located in the Office of the President, and handles all critical security matters. But Mr Lenku knows zilch about security.
But he got the position because the Maasai complained that they were “left out” of the Cabinet in spite of supporting Jubilee. Once again, Mr Kenyatta gave “ethnic diversity” a nod, but put a complete novice in charge of security.
Which means that Mr Kenyatta, or his trusted aides, will actually run the docket, not Mr Lenku. He may be a technocrat, but he’s completely a fish out of water in this docket.
This pattern is repeated in many dockets. For example, banker James Wainaina Macharia landed in Health; a portfolio he couldn’t tell you an intelligent thing about. Then two “political orphans” – seasoned politicians Charity Ngilu and Najib Balala – were given a lifeline by Mr Kenyatta and Mr Ruto. Both lost their senatorial contests.
Mr Balala got the Mining docket while Mrs Ngilu was “gifted” the Lands docket. Neither knows much about their docket. But they were rewarded – in spite of Mr Kenyatta’s vow to keep politicians out of the Cabinet – for sticking with Jubilee in Cord strongholds.
There’s no doubt they will be completely subservient to Mr Kenyatta and Mr Ruto to whom they owe their posts. That’s because they were rejected by “their people”.
The Cabinet has been cut to size by the Constitution. Much of its power has been given to county governments in the devolution structure, and to MPs and Senators.
The “tribal bargaining” for resources won’t take place within the Cabinet, but at the county level. In the new dispensation, Cabinet Secretaries are nothing but “glorified senior aides” to Mr Kenyatta and Mr Ruto.
Their work will be to run “errands” for Mr Kenyatta and Mr Ruto. This may not be a bad thing especially if devolution truly works. Perhaps it will reduce the influence of the “Big Five” ethnic groups in resource distribution. But this won’t happen if the Legislature and counties wag their tails in front of State House.
I don’t mourn the death of the old “political Cabinet”. No sir. But let’s not lie to ourselves that the new Cabinet is one of technocrats. It actually isn’t. It’s largely a hodgepodge of misplaced professionals and political retreads. It’s a neutered version of its previous iteration.
The new Cabinet lacks the political muscle to “talk back” to the “king”. I suspect that the real power will lie with Principal Secretaries. It remains to be seen what culture of governance will emerge out of this curious political beast. Will the “king” become stronger?
Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC. Twitter @makaumutua.

Why Kenya's cabinet secretaries are figureheads by Makau Mutua

Pause and search your conscience Mr Attorney-General by Makau Mutua

Makau Mutua gives his view on the Attorney General's advice to the Kenyan government regarding the ICC trial. He makes an important point in that we joined the ICC, and were not forced to.

Will the Post Election violence victims get justice?

 There needs to be a separation in thinking that Kenya is not on trial, as the Professor points out, but Uhuru Kenyatta and William Ruto are.

The article below Pause and search your conscient Mr Attorney-General by Makau Mutua

The Bible has many nuggets of wisdom. That’s why I refer you to Mark 8:36. Its admonition to earthlings is simple. It asks – for what does it profit a man to gain the whole world, and forfeit his soul?
You are ambitious, and that’s a good thing. But ambition – no matter how burning – mustn’t be allowed to stand in the way of public good.
This is my point – I believe, as a fellow jurist, that you’ve misadvised the Kenya Government on The Hague cases against President Uhuru Kenyatta and Deputy President William Ruto.
You’ve deliberately conflated the interests of the two indictees with those of the Republic of Kenya. This is my advice to you – read and ponder Mark 8:36.
I’ve known you for a long time. In our youth, you were at Columbia Law School while I was at Harvard Law School. I’ve proudly watched your career. You became a top legal practitioner and a decent academic.
You were appointed to the defunct Constitution of Kenya Review Commission. In 2002, it was reported that you and several CKRC commissioners had secretly met with former President Daniel arap Moi at State House.
The scuttlebutt was that you sought to undermine Prof Yash Pal Ghai, the CKRC chair, and sabotage the constitutional review process.
The facts were murky and never fully settled. Methinks that was the first hint of your pro-establishment DNA. Matters have only gone downhill from there.
But you are quick to the draw. You’ve confounded friend and foe alike with deft moves. For long, you maintained one foot in civil society, the other within the State.
You got yourself appointed – courtesy of the Kibaki government – UN special rapporteur on racism and xenophobia. You parlayed yourself as a human rights icon par excellence.
You are slippery
I’ve got to give it to you. You are slippery, and not easily pigeon-holed – until now. I guess there are no more tricks in your hat. At last you’ve come out in your true colours.
But this is the question – are you Attorney-General for Mr Kenyatta the person, or Mr Kenyatta the President? You shouldn’t – and mustn’t – confuse the two. But you have.
This is why. Recall that President Kibaki appointed you AG in 2011 against a huge public outcry. He wanted to unconstitutionally bundle your appointment with those of the Chief Justice and Director of Public Prosecutions. Civil society forced him to retreat on the latter two, but he prevailed in your case.
But no sooner were you appointed than Kenya’s relations with the International Criminal Court really soured.
ICC Chief Prosecutor Fatou Bensouda has repeatedly accused you of lack of co-operation. You refused to provide crucial information on the ICC indictees. You’ve publicly admitted as much.
But it is your rhetorical venom and disgusted body language against the ICC that leaves no doubt what you feel. It’s like a personal affront.
There are two critical decisions on the ICC that bear your fingerprints. That’s because the ICC trials are a “legal” matter, and the State can’t act without your advice.
The first is the bizarre letter by Kenya’s UN ambassador Macharia Kamau demanding that the Security Council terminates the ICC cases.
You very well know that the UN Security Council has no power – at all – to terminate ICC cases. So, why would you advise the government – despite your protestations to the contrary – to make such a boneheaded play?
Besides, why do you act as though Kenya is on trial? Mr Kenyatta himself repeatedly said during the campaign that the ICC trial was a “personal challenge” and not a state matter.
But the biggest shock was your advice that Kenya should seek – and press for – the African Union resolution to terminate The Hague trials. You seem to believe that Mr Kenyatta is the Republic of Kenya, and the Republic of Kenya is Mr Kenyatta.
The AU resolution is an ignominy meant to give Mr Kenyatta the “excuse” not to show up at The Hague.
It makes a mockery of the AU and puts Mr Kenyatta in an untenable position. He’s painting himself into a corner, and forcing a collision with the West. This is a contest he can’t win. But he may feel that it’s better to be a pariah than to show up for trial at The Hague.
You and I know – because we are international lawyers – that the AU resolution is going nowhere. It will be a humiliating failure that will leave Kenya, Africa, and Mr Kenyatta with lots of egg on the face.
No one of sensible mind believes that the ICC is “race-hunting” Africans.
The reverse is true – it’s African leaders who’ve been “hunting” their own citizens for 50 years. And they’ve gotten away with it – until the ICC. Besides, it’s African states themselves that willingly joined the ICC.
No one forced them. Perhaps they joined thinking that the ICC was like the local court in Kibera which they could buy or silence.
A sick joke
Do you really believe that Kenyan courts can try Mr Kenyatta? The AU resolution to bring the ICC cases back to Kenya is a sick joke on victims of the post-2007 election violence.
How things remain the same even as they change. The AU has acted just like its notorious predecessor – the OAU. The AU is a club of dictators, by dictators, for dictators.
But what concerns me most is the bad legal advice that you’ve given Mr Kenyatta and Mr Ruto. Their failure to co-operate with ICC will bring a tonne of bricks on Kenya’s head.
Counsellor, search your conscience.
Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC. Twitter @makaumutua.

Update related article: 50 years on what are we celebrating by Otieno Kajwang

Open letter to Raila Odinga don't accept errand boy job by Makau Mutua

This was an article that  I missed  last week with all that was going on and agree  with the Professor.

Quotes from the article below.

No one wants to be described as an “ex so-and-so”. It’s like being called an “ex-husband” or an “ex-wife”. It’s got a bad ring to it.

That’s why I won’t call you an “ex-Prime Minister”. You are much larger than the positions you’ve held. If truth be told, your identity transcends any single state office in Kenya.

Today I want to address some unsettling rumours. They are two-pronged, but amount to the same darn thing

This is their gist – that you should “quit politics” and become an international “errand boy” for the Kenyan state. I’ve heard many cockamamie plots, but none trumps this doozy. You can’t – and shouldn’t – quit politics. This is why.

First, consider the source of the dastardly concoction. It’s been mooted by your opponents who are dying to bury you politically. Ask yourself this question – why are your political assassins so eager to knock you out of the ring?

The answer is staring you in the face – they know that for more than two decades you’ve been the centre of gravity of Kenya’s political left. They believe they can kill the left if they dispatch you from politics.

The Kanu nomenkatura that won the March 4 elections would then triumph completely and rule – as former President Daniel arap Moi “prophesied” – for another 100 years.

They believe you have no heir apparent in Kenya’s progressive politics.

Think about it. Ever since independence in 1964, the Kenyan state has been in the grasp of a rightist, conservative political elite. Your own father – the late opposition doyen Jaramogi Oginga Odinga – was for long the symbol of the left.

But we all know what happened: the rightist faction under Mzee Jomo Kenyatta and later President Moi “neutralised” him.

He was persecuted and haunted into oblivion. You inherited his mantle, and have become a worthy “Jaramogist” yourself.

But, and this is the failure of the left, there isn’t an obvious Jaramogist to take over from you. That’s why you must stay in the field of battle – for now. The choice of whether, and when, to abandon politics isn’t yours.

Second, Cord is going to splinter into inchoate pieces if you abandon ship. The party – such as Kenyan parties are wont to be – revolves around you. Cord elected officials will head for the exits as soon as you dump it.

No one in the party – not in the Legislature or the county governors – has the wherewithal to lead the Kenyan left.

Leaving Cord will be tantamount to throwing out the baby with the bathwater.

Remember Chinua Achebe’s “Things Fall Apart” taken from the poem “The Second Coming” by W. B Yates. Your departure would be a betrayal. To paraphrase the poem, the “centre won’t hold because mere anarchy will be unleashed upon the world”. This is your historical burden.

You might be the best president Kenya never had. We don’t know how your life’s story will end, or unfold from here going forward. I know you’ve been in the trenches for long.

You’ve got up every time they have knocked you down. You aren’t perfect as you – and we – know only too well. You have stumbled several times.

Progressive instincts

But I am most impressed by your progressive instincts. You led the country in getting rid of Kanu, and you played an outsize role in giving us the new Constitution.

But you’ve been thwarted in your journey to State House every time. Perhaps you are destined to be John the Baptist. If so, find and nurture Kenya’s next “political Jesus”.

Third, I’ve heard that the Jubilee government wants you to be a “Kofi Annan”. That’s hogwash. For one, the Kenyatta regime doesn’t have the international legitimacy to confer on you such a hallowed status.

Mr Annan wasn’t appointed as a “statesman” by any government. He’s an international elder because, as UN Secretary-General, he was widely admired and respected.

There are only a handful of former political greats – like Nelson Mandela and the Dalai Lama – who occupy such lofty perches.

How would you acquire such a status as an appointee of a head of state who is indicted for crimes against humanity? This is a poisoned chalice from which you shouldn’t drink. It’s a fool’s errand – an “appointment” to “nowhere”.

Fourth, don’t cut the legs from under yourself. I know the traumatic events of March 4 – with the finality of the Supreme Court decision on the election petition – weigh heavily on you. That’s true for all men and women of conscience. Your future isn’t like instant coffee – take the time to map it out. Life, as you know, isn’t a sprint, but a marathon.

What’s up today could be down tomorrow. That’s the single most important enduring lesson of history. The Book of Mathew in 20:16 says that “so the first will be last, and the last will be first”. The struggle for the freedom of the downtrodden hasn’t been in vain. That’s why you must hang in there.

Finally, don’t listen to those who want to read your “political eulogy”. Some people even say that you can’t run for President in five years because you are too old. That’s also baloney. Mr Kibaki was 71 when he was first elected to State House in 2002.

He was re-elected for a final five-year term at 76 and retired this year at 81. You should plan on running in 2017. Former US Secretary of State Hillary Clinton – who is about your age – is touted as the leading nominee for the Democratic Party in 2016.

Damn the question of age.

Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC. Twitter @makaumutua.

Open letter to Raila Odinga don't accept errand boy job by Makau Mutua

ICC rejects call for Kenya charges to be dropped

I wonder what the outcome of the ICC case will be.

Another witness against Ruto steps down. No surprises there, most witnesses will not have the guts to testify now. How can Kenya ask the UN to halt charges against Kenyatta.



Well it looks like the ICC has rejected the call for the charges to be dropped.

Quotes from the article below

Kenya is waiting to hear from the UN Security Council on its request to end criminal charges facing President Uhuru Kenyatta and his deputy William Ruto. The ICC has rebuked Kenya’s attempt as unfounded and incorrect.

Kenya is awaiting a response from the United Nations Security Council, after it sent an official request for charges of crimes against humanity facing the country's newly elected leaders to be dropped. The letter, dated May 2, 2013 and stamped 'confidential', is the first such official request for the cases to be abandoned.
"What this delegation is asking for is not deferral; what this delegation is asking for is for the immediate termination of the case at The Hague." Kenya's ambassador to the UN, Macharia Kamau, wrote in a letter to the Council.  "The implications of Kenyatta's trial for the viability and continuity of the state should be self evident," the letter said.
Kamau argued that a lot had changed since the ICC confirmed the charges in 2010, and that Kenya now had the "capacity to offer a homegrown solution." He also reiterated Kenya's commitment to "continue cooperating with the court."
Unstoppable case
However diplomats from the Security Council who discussed the request said even the world's most powerful body could not stop the proceedings. "The letter from the Kenyans is slightly bizarre because they are actually asking the Security Council to do something that it has no authority to do," a senior council diplomat told Reuters news agency.
The Security Council is only able to defer International Criminal Court proceedings for one year under article 16 of the Rome Statute, which established the Hague-based court a decade ago. "No formal response has been made yet, but the Kenyans will be told their request is going nowhere," one diplomat said on condition of anonymity.
The UN Security Council would need to adopt a resolution to have the Kenyan case deferred.
International legal experts view the letter which criticizes the court's legal process, as "neither impartial nor independent", but as a political appeal to drum up support among allies rather than a practical step towards dropping the ICC charges. "I think they are hoping to get enough pressure on the ICC to drop the case," Leslie Lefkow, deputy director for Human Rights Watch's Africa Division, told DW in an interview. "They argue that because the two leaders were elected, this is evidence for the case to be dropped. But if you follow that logic, then what you are saying is that anyone who is elected should be immune from prosecution."
Rwanda, currently a temporary member of the 15-nation Security Council, raised the Kenyan case in a meeting with ICC prosecutor Fatozu Bensouda on Friday (10.5.2013). Eugene Gasana, Rwanda's ambassador to the UN, said Kenya's letter contained "a compelling case against the methods of work of the office of the (ICC) prosecutor on the Kenya cases."
ICC 'not politicized'
 Bensouda hit back at suggestions that her office was politicized. "The ICC has always and will always continue to respect the sovereign equality of all states, Bensouda said. She warned that she will not "shy away from investigating individuals for any alleged crimes irrespective of their status." Bensouda, who admitted she had not officially seen the letter, gave a strong reaction to the Rwandan envoy's comments saying they were "unfounded and incorrect."
"It is a backdoor attempt to politicize the judicial processes of the court," Bensouda said.

 ICC prosecutor Fatou Bensouda has been criticized for mishandling the case

ICC judges have so far rejected suggestions to move the court to another country. Human Rights Watch's Leslie Lefkow believes that Kenya's case is different because up until now "both men have voluntarily presented themselves for proceedings." However she says Kenya's letter gives cause for alarm. "It needs to be met by a strong and united response from the international community."
Uhuru Kenyatta, 51, who was recently sworn in as Kenya's fourth president, his deputy William Ruto, 46, and another six suspects were initially charged by former ICC prosecutor Luis Moreno Ocampo with orchestrating tribal violence after the 2007 election. Kenyatta and Ruto both deny the charges. Should the charges against Kenyatta stand, he will become the first-ever president to have to travel to The Hague for a trial that could last at least two years.
Some 1,200 people were killed during the post-lection violence of 2007-08. The clashes shattered Kenya's image as a beacon of regional stability and plunged the East African nation into its worst wave of violence since independence in 1963.

 Update Related articles: Kenya attorney general disowns bid to drop Kenyatta trial

UN won't end ICC cases and this is why by Makau Mutua

Quotes below

Ever heard of a “Hail Mary” pass? It’s a desperation heave made by a quarterback in American football. It’s made at the end of a game – when defeat stares you in the face – and there’s virtually no chance of victory.

That’s what Kenya has done in asking the UN to terminate The Hague cases against President Uhuru Kenyatta and Deputy President William Ruto.

But, in a very strange twist, Mr Ruto denied being party to the request to end the cases. Make no mistake.

The truth is that the UN legally can’t – and won’t – terminate the cases. I know this – hell will freeze over before the UN makes such a bone-headed play. I have five reasons why Kenya’s plea will fail.

First, Kenya’s request will fail because it’s made by Mr Kenyatta. Kenya’s UN mission in New York represents the Head of State.

Kenyatta’s mouthpiece

The Kenya mission is an extension of Mr Kenyatta. Every action – or word – from the mission is Mr Kenyatta’s. The mission is nothing but Mr Kenyatta’s mouthpiece.

The Kenyan envoys to the mission – Mr Macharia Kamau and Ms Koki Muli Grignon – are Mr Kenyatta’s factotums. An indictee like Mr Kenyatta can’t sit in judgment of himself. The equivalent would be throwing open the doors to Kenya’s police holding centres and letting all suspects go scot-free.

The rule of law would go out the window. The inmates would be fully in charge of the asylum.

Second, Kenya’s argument is deeply convoluted and disingenuous. That’s because Mr Kenyatta has maintained that he will cooperate with the International Criminal Court. But now he wants to pit “democracy” against “justice”.

The petition argues – incredibly – that Kenya would go down in flames if he was forced to go on trial after winning the March election.

Entire region

There’s more. The request opines that violence in Kenya would destabilise the entire region. This is what’s called “taking a hostage”.

It’s a false dilemma – you let a suspected criminal go free, or risk hell from his supporters. That’s a blatant articulation of the “republic of fear” in the offing.

The message is clear – leave us alone, or we’ll set the place on fire. I don’t see the UN succumbing to such naked blackmail. If so, the UN might as well close shop and its members return home.

But this was my argument all along. Mr Kenyatta was determined to win the election to save himself from the ICC.

He’s discovered that ICC Prosecutor Fatou Bensouda won’t let go. She’s drafted additional charges against him. Like all good prosecutors, she’s great at her job.

More unsettling for Mr Kenyatta is that the ICC judges have rejected his key arguments. He’s lost virtually every major objection he’s raised in court.

That’s because the evidence against him – which the judges have seen – is very solid. The judges don’t believe his claims the evidence was fabricated.

Third, the Rome Statute doesn’t give the UN Security Council the power to “terminate” a trial. The Security Council can only “defer” a trial for 12 months, but not terminate it. Such “deferrals” can be renewed.

But it is the ICC itself – not the UN – that can end a trial. That’s why Kenya’s request is really a plea that asks powerful states to “lean” on the ICC to end the cases.

But there’s nothing powerful states can do “to make” the ICC drop a case. Attorney-General Githu Muigai has run out of tricks, and has now advised Mr Kenyatta to resort to the political “tactics of fear”.

Fourth, the UN knows that it will destroy the ICC or turn it into a laughing stock if it defers the Kenya cases. Why would a suspect, or state, ever respect the court if it let an indictee off simply because they won an election? Mark my words – the ICC would itself collapse if the UN were to grant Mr Kenyatta’s wishes.

Security fears

No amount of pleading – or threats based on fake regional security fears – will move the UN to cut the legs from under the ICC. This is what my crystal ball tells me – and you can take it to the bank. To do otherwise would abandon victims to the whims of brutes. The idea of international justice would die. Fifth, the UN is aware that Kenya has been trying to scuttle the ICC cases from the very beginning.

Under former President Mwai Kibaki, Kenya tried every trick – including VP Kalonzo Musyoka’s “shuttle diplomacy” – to kill the cases.

The Kenya Government acted – and still does – as though it was on trial as a country. Now Mr Kenyatta has made it clear that Kenya’s stability and future – and the region’s – depends on whether he can evade the ICC.

Kenya’s petition says in effect that Mr Kenyatta is Kenya, and Kenya is Mr Kenyatta. This is total hubris, and I bet the UN will make Mr Kenyatta carry his own cross. No single man should equate himself to a country.

I knew that Mr Kenyatta would defy the ICC if they ascended to power. I was right. I believe that he won’t cooperate with the ICC if his request to the UN is denied – as it surely will.

Then this will be the big question – will Mr Kenyatta be shunned across the globe, and Kenya isolated?

Mr Kenyatta’s camp was ecstatic when British PM David Cameron invited him to London. But they were apparently infuriated that PM Cameron wouldn’t give him a photo op. Such snubs can only increase if he shuns the ICC.

Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC. Twitter @makaumutua.

Update two Related article:State faulted over fresh bid to halt ICC criminal cases by Felix Olick

Makau Mutua on whether civil society will survive Uhuru's presidency

 

Makau Mutua has always spoken his mind, and received lots of abuse as a result. He asks some thought provoking questions in his article on whether civil society will survive Uhuru's presidency.

Some quotes from the article below

"Let me clear one thing to set things straight. If there’s one thing that’s sacred about an individual, it’s their conscience and freedom of thought.

That, more than anything else, is what makes us uniquely individual. It’s the single most important – and unarguable foundation – of a democratic society.

That’s why constitutions – including Kenya’s – protect the freedom of conscience and thought without qualification. It’s a freedom that can’t be given, or taken away, by a state. Civil society is the most reliable guardian of these freedoms. That because the state is an untrustworthy protector of human rights.

This is the question – what’s civil society to do if it feels so strongly about the Kenyatta regime? There’s no doubt Mr Kenyatta and his government have the support of a lot of Kenyans. That’s unarguable. But there are many Kenyans who are apathetic.

Take it from me – apathy is strongest in civil society. It’s an “existential moment” for some of the leading lights of civil society.

They feel betrayed by a population they’ve always fought for. In fact, most of the freedoms Kenyans enjoy today were made possible by civil society, including the 2010 Constitution.

Many are questioning the ability of the human rights movement to uproot embedded tribalism and the money corruption of the wealthy.

No one knows whether civil society will survive the Kenyatta regime and, if so, in what shape. We are in uncharted territory. But I can point to some possible routes. I believe Mr Kenyatta understands that his regime suffers from a “legitimacy deficit”.

That’s because of the charges against him at The Hague and the contested nature of the election. He may try to co-opt some civil society leaders into his regime to shore up his credibility.

There are signs that some important civil society doyens are fighting to catch his eye. Yes – we have opportunists in civil society too. Some of them have denounced principles they’ve long held to prove their loyalty to Mr Kenyatta.

Secondly, others may accept the outcome of the election and “move on,” as has been urged. This cohort would simply go back to the trenches and continue their fight for human rights – much in the same way they did under former President Kibaki.

Their job would be to “monitor” Mr Kenyatta’s government, “hold it accountable,” and “protect” the gains in the 2010 Constitution. You can be sure there will be donor funding for such “constructive engagement”.

These “true believers” are professional human rights workers whose view of the world isn’t jaundiced. They know that “engaging” the Kenyatta state and “dialoguing” with it can only further legitimise it. But to them, this is the best of terrible options.

Thirdly, there is a group that’s likely to disengage, and “divorce” the human rights movement. This chunk may “resign” from civil society. A number may even “divorce” Kenya. Some may go for further studies, or join the private sector. This group took Mr Kenyatta’s election the hardest, and cannot reconcile itself to the choice of a supposed plurality of Kenyans.

But others in this group will take a reflective view and calibrate their future options. Many will be keenly watching The Hague trials. That’s because a conviction of either Mr Kenyatta or Deputy President William Ruto, or both, would be a game-changer. But that’s a long way off, and the wait will be torturous and the outcome uncertain.

Finally, it’s anyone’s guess how the Kenyatta state will respond once civil society recovers from the shock of the moment and reasserts itself