Kenya’s Supreme Court facing pressure from the same forces that fought (and won) against the ICC

President Uhuru Kenyatta and Deputy President William Ruto display their certificates after being declared the winners of the August 8th presidential election. The Supreme Court of Kenya later nullified their win. (Photo: Statehouse Nairobi/Facebook)

By Ishmael Bundi

On September 1st, Kenya’s Supreme Court stunned the world by nullifying the re-election of Uhuru Kenyatta for a second term as president. Kenya’s apex court, by a majority decision, found that the August 8th presidential election had failed to meet the standards set in the country’s constitution and ordered Kenya’s election commission to conduct a new poll within 60 days. By invalidating the re-election of an incumbent Kenya joined a unique and enthusiastically feted club of nations.

Will no one rid me of this meddlesome Court?

President Kenyatta, suffice it to say, didn’t react well to the decision. He has publicly attacked the Supreme Court and called the judges who overturned his re-election “wakora”, a Swahili word that translates to “crooks” in English. Menacingly, Kenya’s president also promised to “revisit” the issue of the Supreme Court once he wins re-election.

It’s now open season on the judiciary. Following the president’s disparaging statements on Supreme Court judges, Deputy President William Ruto and party loyalists have followed his cue, repeating his attack line about “4 people overturning the will of 15 million Kenyans.” It’s now commonplace to hear either Uhuru, Ruto or their political surrogates attacking the Supreme Court judges and calling their independence and integrity into question.

First they came for the ICC…

For those with long memories, history seems to be repeating itself before our eyes. President Kenyatta’s “will no one rid me of this meddlesome Court?” lament recalls another time.It’s a rehash of an already wearily familiar strategy. Specifically, the strategy that Uhuru and Ruto used when they took on the ICC. The strategy that was so successful, it prompted Foreign Policy magazine to wonder aloud if Kenya had destroyed the ICC, the court that’s the world’s best answer yet to tackling impunity for crimes against humanity.

Luis Moreno Ocampo and his successor at the Office of the Prosecutor (OTP) Fatou Bensouda huffed and puffed but, despite their best efforts, the Kenyan cases were all thrown out for lack of evidence. The ICC, it turned out, was no match for a state apparatus practiced at fighting propaganda wars, feigning cooperation, making witnesses disappear and getting its way through diplomatic wheeler-dealing.

So make no mistake about it, the fact that the two most powerful people in Kenya have publicly declared war on the Supreme Court is a real and present danger to the court’s independence. Being a domestic court only compounds the peril Kenya’s top court is in.

Unsurprisingly, the same tried and tested tactics that were used against the ICC are now being deployed against the Supreme Court. A campaign to discredit the supreme Court is slowly gathering steam and it’s being fronted by some familiar faces, notably Dennis Itumbi and Ngunjiri Wambugu. Both these men cut their teeth in the propaganda war against the ICC mostly through insinuating links between The Hague Court and attempts at regime change in Kenya. And they are back at it.

Lessons from The Hague

But there is no reason to panic just yet. Uhuru and Ruto’s verbal attacks are likely just a shot across the bow. The pair can’t do any real damage to the Supreme Court right now because they are still in the midst of a demanding re-election campaign. The real test will come after, should they win in the repeat presidential election slated for October 17th. The Supreme Court of Kenya would do well to prepare for that possibility because President Uhuru Kenyatta is still the odds-on favourite to win.

In readiness for the likely tough times ahead, here are a few lessons Kenya’s Supreme Court can learn from the ICC:

Hypocrisy and flip flopping are par for the course

The Supreme Court judges shouldn’t be stunned when politicians change their tune on them. Hypocrisy is par for the course. Kenyan politicians will back them as long as they agree with them. Once upon a time, William Ruto was eager to go to The Hague. He quickly changed tune once he grasped the gravity of the charges against him.

When William Ruto was eager to go to The Hague. (Photo: Daily Nation front page February 2009)

Ruto and president Kenyatta were quick to urge the losing parties in the August 8th elections to seek redress at the Supreme Court. Now they are attacking the Court every chance they get. The lesson here is not to be taken in by initial statements of support. Former ICC Prosecutor Louis Moreno Ocampo took too many Kenyan politicians at their word, including then President Mwai Kibaki. The expected cooperation and support never materialised for the ICC. Going by President Uhuru’s public statements, the judges of the Supreme Court of Kenya can expect a similarly cold wind to blow their way soon.

Public opinion too can be fickle

A long time ago in a galaxy far, far away…Kenyans pinned their hopes of ending impunity on the ICC. Back then, Kenyans had an appetite for truth and justice and they welcomed The Hague court with open arms.

At the time, the local press painted Ocampo as a cross between Batman and Judge Dredd, a one-man army that would end impunity in Kenya for good.

Moreno Ocampo, apparently, not only believed the hype but actively fed it.

Things didn’t go as planned. Most victims kept faith with The Hague process through ups and downs. Among average Kenyans, however, the ICC quickly lost its appeal in the face of a relentless, well-funded campaign designed to portray the Court as “the toy of declining imperial powers.”

Many of who believed in the ICC strongly enough to write Tweets rolling out the red carpet for then ICC Chief Prosecutor Luis Moreno eventually parked their principles and decided that ending impunity wasn’t so important to them after all.

The lesson here is the public’s support is a fickle thing. Here today, gone tomorrow.

Don’t allow information vacuums

As the ICC’s reputation in Kenya was being thoroughly trashed, it didn’t react, even when the most scurrilous rumours were being spread through every social media platform and news outlet. The ICC is still a magnet for fake news in Kenya today. The darkly creative bloggers crafting ICC -related propaganda in Kenya expect no challenges from the Court. They can get away with whatever their minds conceive while the information vacuum exists.

For example, the game in Kenya right now is to use the ICC’s font and logo to scare political opponents into thinking that they are under investigation by The Hague court.

The bloggers haven’t just mocked up fake letters. They are also circulating fake headlines attributed to some of Kenya’s leading newspapers.

Fake Star headline:

Real Star headline:

Define yourself before you get defined

One of the ICC’s biggest blunders in Kenya is allowing the Court’s detractors to define it. The ICC lacked an effective response to the charge that the court was “political” — meaning the court made political choices at some other country’s behest. The tag stuck to the ICC like old gum to a shoe. The Court couldn’t shake it off. In PR 101 it’s accepted wisdom that as long as you allow your opponents to define you, you have already lost.

The court’s mandate does require it to go after those most responsible for grave crimes who are — more often than not — political actors. The ICC didn’t manage to explain that well enough and paid the price for it.

Kenya’s Supreme Court shouldn’t make the same mistake. It has to make sure it defines what it is and what it represents before its detractors (likely with the aid of world class branding experts) gives it a bad name and it sticks. Nothing less than the future of the rule of law in Kenya depends on it.

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