A failing electoral body and judiciary mean that Kenya still needs the ICC

By Ishmael Bundi

Once a upon a time, Kenyans took much pride in the steps the country had taken to “transform” – the word was used ad nauseam – its judiciary from an erstwhile den of corruption, where justice was auctioned off to the highest bidder. For a while, said judicial transformation was even a weapon of choice opponents of the ICC in Kenya trotted out to underscore why the Court’s intervention was as unnecessary as it was unhelpful. In 2013, Foreign Affairs Cabinet Secretary Amina Mohamed said on the BBC’s interview programme HARDTalk:

“The Rome Statute is impartial, it’s objective and we signed into it because we believed in what’s enshrined in it, but we do not like the way the goalposts are suddenly shifting to suit the Court and that is the problem we have with it. We have a new constitution and a stronger judiciary that can make credible rulings into the cases.”

A persistent odour of sleaze

Since Mohamed made that statement, much eat-your-words water has flowed under the bridge. The much-taunted judicial reforms have proven to be a non-event on a par with the Y2K scare. Chief justice Willy Mutunga, the man who was supposed to lead the judiciary to the Promised Land, has himself – in interview after interview – offered a withering appraisal of where things stand. In his many public pronouncements on the matter, Mutunga has painted the picture of an institution that is almost irredeemably corrupt. So baked into the cake graft is in the judiciary, Mutunga says, that the judges themselves are not above bribing each other.

“It causes me a lot of pain that an election involving judges and magistrates will be corrupt. Can you imagine a Judge bribing another Judge so that they can vote for them? When the judges and magistrates were electing representatives to the [Judicial Service Commission] JSC, there was evidence of a lot of corruption.”

But the judiciary isn’t the only organisation in Kenya’s electoral process that is currently trailing a persistent odour of sleaze. The Independent Electoral and Boundaries Commission (IEBC), Kenya’s electoral body, is itself battling accusations of endemic corruption. In a scandal Kenyans have taken to calling “Chickengate” – after the codename participants in the scheme are said to have used to refer to bribes – IEBC officials are accused of awarding contracts to a British firm Smith and Ouzman (S&O) in return for financial favours.

The graft claims against the IEBC don’t inspire much confidence in how it will handle next year’s polls. According to noted columnist George Kegoro, neither does it’s handling of the recent by-elections in Malindi and Kericho.

“For different reasons, the Kericho and Malindi elections provide new evidence that the country should be worried about the capacities that the IEBC has for running the 2017 elections. The problem is that the IEBC has lost its moral command over elections and is no longer seen as a force representing the aspirational goal of free and fair elections, a problem that is compounded by woeful law-enforcement on the part of the police.”

Dancing on the lip of a volcano

If all of this seems hauntingly familiar, it’s because the immediate cause of the 2007/08 post-election violence was the combined failure of the Electoral Commission of Kenya – the then electoral body – and the judiciary. The country avoided a similar descent into chaos in 2013 because Kenyans – on the whole – kept faith in the two institutions.

At moments like these, one is tempted to reach for a metaphor to explain the precarious position Kenya finds itself. Dancing on the lip of a volcano seems to about cover it. Nothing else coveys the mortal consequences if Kenya allows public confidence in the IEBC and the judiciary to continue depreciating. Recently, US Ambassador to Kenya Robert Godec expressed his concerns about the situation. But according to seasoned Star columnist Wycliffe Muga, even he seemed at a loss at how it may be remedied:

“The ambassador spoke of the need for the Supreme Court and the Independent Electoral and Boundaries Commission to regain the confidence of the Kenyan people. But he did not suggest any path by which such confidence may be regained. And that is the worrying thing: it is by no means clear that anyone else knows how this confidence may be restored.”

Muga, however, says Godec’s concern is timely because it’s reminding us that when you stare into the abyss, the abyss stares back. In other words, Kenya should think twice before recreating the circumstances that birthed the most painful hour of the country’s history:

“That is what Ambassador Godec was essentially reminding us: we are back at a point where both our electoral commission and our judiciary are considered by a good part of the country to have no moral authority to serve as an independent arbiter in the event of a disputed presidential election.”

The ICC has put the fear of God in the hearts of Kenyan leaders

It’s entirely possible – nay, almost certain – that Kenyan officials won’t pay any attention to the red flags Godec is throwing up. Kenya might sleep walk into a crisis in 2017, in which the loser of the presidential election refuses to accept the results as announced by the IEBC and rejects calls to seek redress at the Supreme Court. (Sound familiar?)

This is when I predict that Kenyans will have their come-to-Jesus moment on the ICC. This is when they will be glad that the Court is still in the picture. This is when Kenyans will know that when their institutions fail (just like they did in 2007), the ICC is there to ensure things don’t slip out of control and to punish those responsible when they do.

But I suspect we won’t get to the last scenario described above. The Kenyan ICC cases have put the fear of God in the hearts of (most) Kenyan leaders. Only the foolhardy and bloodthirsty would dare do anything that would mean that they have to tango with the ICC in future. So although they might make careless statements (read hate speech) here and there leading up to the elections, none of them will dare organise an attack or incite mass violence.

Ambassador Godec too must know as much. That’s why when he expressed concern about the failing grades the IEBC and the judiciary were getting from Kenyans, almost in the same breath, he, according to The Daily Nation, “lamented that African states want to withdraw from the Rome Statute that established the International Criminal Court when there are no reliable alternative mechanisms”. It’s safe to say Godec’s message was meant (mostly) for ears closer to home. Translation: Kenya, stay put in the ICC.

Ishmael Bundi is the pseudonym of a Nairobi-based lawyer.

Lead image: Officials from the Independent Electoral and Boundaries Commission (IEBC) stand next to ballot boxes in a taylling centre near Nairobi on 6 March 2013 (Photo: Goran Tomasevic/Reuters)