As former ICC indictee, William Ruto, becomes president, By Chidi Anselm Odinkalu

But Kenya is not the only place where the ICC was accused of international insertion into domestic politics under the guise of prosecutorial action for accountability. When the ICC’s appeals chamber acquitted former DRC Vice-President, Jean-Pierre Bemba, of all charges in 2018, it was said that the judgment was “a political decision aimed at threatening the acting DRC President, Joseph Désiré Kabila, who is not in a hurry to organise free and fair elections and leave power.” One commentator queried: “Could the ICC have been manipulated by those who uphold prescriptive democratic ideals and who have the necessary power to impose ‘democracy’ in developing countries? The possible manipulation of the ICC could have led to Bemba’s freedom.”
Following the indictment of Sudan’s former President, Omar Al-Bashir by the same court in 2009, another observer described an “imbroglio of political and justice considerations”, in which, it seems the politics always wins out. In Sudan, some would argue, the ICC did not have a realistic means to bring Bashir to trial but used the indictment as strategic leverage on such other issues as the independence of South Sudan and support for international terrorism.
The absence of a smoking gun to anchor these claims has not necessarily stopped them from flourishing. What cannot be disputed is the fact that the footprint of the ICC in Africa has had far reaching political consequences in a continent in which the court has not always been remarkable for its political acuity or sense of timing.
The impact of the ICC in Kenya will be a matter of considerable speculation well into the foreseeable future. The background does bear a brief reprise.
On 27 December, 2007, Kenyans went to the polls to elect a president. Three days later, on 30 December, the Electoral Commission of Kenya (ECK), in the middle of the night, announced President Mwai Kibaki of the Party of National Unity (PNU) as duly elected with 46.42% of the votes, ahead of Raila Odinga, of the Orange Democratic Movement (ODM) to whom it gave 44.07%. He was hurriedly sworn in. Meanwhile, in the parliamentary vote which took place with the presidential ballot, the ODM won 99 of the 208 seats on offer with 30.83% of the votes, beating out the PNU slate, which ended up with 43 seats from 20.89% of the votes cast.
Thereafter, as reported by the New York Times the following day, “[i]t took all of about 15 minutes…. for the country to explode.”

According to an initial assessment issued by the Office of the High Commissioner for Human Rights at the United Nations following a mission in February 2008, “more than 1,200 Kenyans were reported killed, thousands more injured, over 300,000 people displaced and around 42,000 houses and many businesses were looted or destroyed. A significant number of cases of sexual violence were also reported.”
It took a plurinational mediation led by former United Nations Secretary-General, Kofi Anan, to stem the violence.

The power-sharing government instituted at the end of the mediation under the National Accord and Reconciliation Act established a hybrid international judicial commission of inquiry into the violence. The three-person commission headed by Philip Waki, a judge of Kenya’s Court of Appeal made two important findings. First, it found that “armed militias, most of whom developed as a result of the 1990s ethnic clashes, were never de-mobilized [and] led to the ease with which political and business leaders reactivated them for the 2007 post-election violence.” Second, it concluded that the PEV was “a result of planning and organization in other areas, often with the involvement of politicians and business leaders.” Instead of paying a price, it seems those “politicians and business leaders” flourished.
Some people will argue that the outcome of the ICC process in Kenya has been salutary. For proof, they may call attention to the fact that as close as this 2022 ballot was, there was no violence. That is one way of looking at it. It has taught the voters to avoid dying for politicians. They have nowhere to run to or hide.
It is well possible that the would-be president who has prevailed over every prosecutor and politician arrayed against him will, in office, overcome his provenance and plunder greatness from the jaws of infamy. That would be an ending fit for a Hollywood script.
Chidi Anselm Odinkalu, a lawyer and teacher, can be reached at [email protected].

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