Why the Ocampo 6 deferrals won't work

Kibaki's star-crossed envoys meet Wenaweser in New York last week.

By Makau Mutua

I don’t know whether to laugh or cry. Last week, President Mwai Kibaki appointed a pack of ministers – headed by Vice-President Kalonzo Musyoka – to ratchet up the PNU/KKK’s bid for the deferral of The Hague trials of the Ocampo Six. Which begs the question – why is Mr Kibaki so desperate to pursue this errand?

The request is dead on arrival now that the ICC has summoned the Ocampo Six. The noose just got tighter. Maybe Mr Kibaki thinks the Ocampo Six could implicate him. Or the Ocampo Six have “taken him hostage”.

Perhaps it’s all of the above. What’s shocking, though, is the list of Cabinet “envoys” assigned to lobby for the deferral.

They have mega credibility problems. Mr Musyoka, the leader of the pack, is a key 2012 intriguer together with Finance minister Uhuru Kenyatta and Eldoret MP William Ruto, two of the Ocampo Six. That alone shatters his credibility. He seeks the deferral for two reasons. He may want to save the two pillars of the PNU/KKK alliance without whom he faces an uphill task against PM Raila Odinga in 2012. Or he may be “playing to the gallery” and feigning sympathy with Mr Kenyatta and Mr Ruto to harvest Kikuyu and Kalenjin votes if the two are carted off to The Hague.

This playbook is transparent to the Americans and Brits who are certain to veto the deferral request. It’s not a secret that Mr Kenyatta, Mr Ruto and Head of Civil Service Francis Muthaura – another of the Ocampo Six – are the “master puppeteers” behind VP Musyoka and President Kibaki. So how credible is the VP if he is being orchestrated by the suspects? The AU, a bastion of impunity, may listen to him. But why would the UN Security Council? I have some advice for Mr Kibaki. This play is so futile that he might as well have appointed Mr Kenyatta and Mr Ruto to lobby for the deferral themselves. Sending Mr Musyoka to the UN in New York is an insult to the intelligence of the Security Council. President Kibaki has bad advisers.

Let’s look at the other “envoys”. Agriculture minister Sally Kosgei has already pledged loyalty to Mr Ruto and condemned the ICC. Her vitriol against The Hague has been venomous. Why would anyone listen to her?

Especially after she publicly joined and defended Mr Ruto’s tribal project? She may have been a diplomat, but that was then. 

Defender of impunity

Lately – and I deeply regret this – she has turned into a tribal charlatan and a defender of impunity. The other key “lobbyist” is Internal Security minister George Saitoti. He, too, is a major link in the PNU/KKK chain. Minister Chirau Mwakwere, another “envoy,” is more of a comedian, and less of a diplomat. The other “envoys” are inconsequential, although it’s stunning they are all PNU/KKK bedfellows. Nairobi Metropolitan minister Njeru Githae is a rabid PNU partisan. Minister Hellen Sambili is unlikely to impress anyone abroad. The urbane Richard Onyonka, the junior minister in the Foreign Affairs docket, is on the trip ex-officio.

Mr Kibaki would have been better advised to appoint “envoys” from the religious community and civil society. But I guess he couldn’t find any for the “dirty work”. Or he could have asked “bona fide ODM leaders” to support the effort. I guess that, too, was not possible. Which makes the deferral bid a partisan political project to sabotage the ICC and entrench impunity. That’s why it will fail.

Is this the sort of company that respectable statesmen keep?

It does not help matters that two of the leaders that Mr Musyoka used to get the AU backing are toast. Former Egyptian dictator Hosni Mubarak is now an ex-president, courtesy of Tahrir Square. The other, the eccentric Muammar Gaddafi of Libya, is clinging to whatever little patch of sand he still controls in Tripoli. Is this the sort of company that respectable statesmen keep? With friends like these who needs enemies! The deferral exercise lacks legitimacy at home and credibility abroad.

A smarter strategy would have seen the Ocampo Six stay as far away from President Kibaki and VP Musyoka as possible. Which knucklehead advises these people?

I predict that Kenya’s request for a deferral will never make it on the Security Council agenda. Why? Because it’s not a matter of “international peace and security”. Even more importantly, I don’t think Kenya will get any country on the Security Council to put the matter on its agenda. That’s why it wasn’t put on the agenda for February and March. 

Won’t touch it

The three African countries on the Security Council – South Africa, Gabon and Nigeria – won’t touch it with a 10-foot pole. Nor will other non-African states. This request will die on the vine, never having been discussed. But its cost to Kenyans – in treasure and reputation – is huge. Bottom line is that Mr Kibaki’s legacy at the twilight of his long political career is unflattering. Mr Musyoka’s is none the better.

Think of this push for the deferral in the context of WikiLeaks. WikiLeaks paints Mr Kibaki as a protector of impunity. Mr Musyoka comes off as a lightweight who will do anything to ascend to the top. Both behaved in undignified ways before Ambassador Michael Ranneberger, America’s envoy in Nairobi. The ICC “shuttle diplomacy” further diminishes them.

Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the KHRC.