Monthly Archives: April 2011

Some People You Just Can’t Satisfy No Matter How Good a Leader You Are

After spending time reading and responding to many posts attacking Raila, I have come to the conclusion Raila cannot do enough for a certain hardcore haters who remind me of Rush Limbaugh, a Right Wing Nut Radio Host in the US who for the two terms Bill Clinton was president, slept and breathed Clinton, railing against him daily and not once did he ever find anything good to say about Clinton; and that is being on air daily for roughly 2,900 days during that period, or the equivalent of starting to rail against someone before a child is conceived through when the child is conceived, born, crawls, learns to walk, learns to eat, learns to read and write and is old enough to tell you there is something wrong with you if you can’t find anything good to say about a person all this time.

For Limbaugh, Clinton never did anything good, never mind Clinton is credited for turning the US economy around and creating budget surpluses in the country of $69.2 billion for fiscal year 1998, $76.9 billion in fiscal year 1999 and $46 billion for fiscal year 2000, the only times the country had seen such performance since before Clinton was a small boy. On the other hand, Clinton was succeeded by George W Bush who sent the country’s economy in a downward spiral and is credited for creating the country’s recent economic crisis that President Obama is trying to fix.

The point is this, Limbaugh to this day sings praises of George W Bush and has yet to say anything good about Clinton which leads to the conclusion there are people who can just never be satisfied with a leader no matter how good he or she is and no matter what he or she does. Raila has not been spared this phenomena.

Reading and listening to some of these tirades against Raila, an uninformed person or someone who otherwise has these naysayers as the source of their information would be mistaken to believe Raila is responsible for everything wrong and nothing good in Kenya which is obviously not even remotely the case.

Fortunately, however, the naysayers always number in the minority otherwise these leaders will never see a moment of elected office no matter how good they are or can be. Put another way, a good leader aims to do good for the vast majority of those he or she leads for he or she knows you cannot please everyone all the time and that aught never be the objective to begin with; it’s enough you do more than enough to meet the needs of those you lead and this is precisely what Raila does as anyone who looks at the man objectively has to conclude.

Having said that, I am re-posting below my earlier thoughts about Kibera slums and Raila which has been a recurring accusation lobbed against Raila lately by some of his most avid naysayers in a number of forums:

The reason why I paint the slums is because I believe our country will develop one day and there will be no slums.”

Rahab Shane, Painter, Banana Hill Art Collective.

I just watched an episode of “Noble Exchange” on Halogen TV where this artist and her husband were interviewed. Her sentiment I have quoted above is poignant for several reasons: First, it is an optimistic statement; in her own words, she is painting the slums as an historical record to look back to long after the slums are gone.

Second, her sentiment lays no blame on anyone when there is plenty to go around, including this and other groups on the Internet which can do something about this problem, if they so chose and that is to say nothing about the government.

Third, even though the particular painting being featured was the Kibera slum, the artist sees the problem not from a tribal or political point of view but from a humanity point of view and thus her all inclusive use of the phrase “I paint the slums”  as opposed to “I paint Raila’s Kebera slums,” which would have been choice words were she to cast the issue in tribal or political terms targeting Raila for blame.

Fourth, the Banana Hill Art Collective came to being as a result of PEV yet Rahab and other artists at the Collective have commendably chosen messages of hope over messages of hate and division so characteristic and at the core of what drives an alarming number of Kenyans since that time and who knows for how much longer; as one of the artists, Rahab’s husband, Shine Tani put it, he looked up, saw a clear blue sky representing calmness, peacefulness and tranquility and contrasted that to the post election carnage and general chaos and what he ended up with is a painting theme he calls the “Blue Sky” in which he portrays the prayer, As It Is Done in Heaven, Let it Be Done on Earth; in other words, may the peace in Heaven also happen here on earth. This was Shane Tani’s prayer and so was it for most of us in Kenya post election 07 and is still our prayer.

So in the end, it is not about the Kibera slums, or the rampant poverty in Kenya or the lack of food or clean and safe water for many, etc; rather, it is about whether we have in us a leader who can finally unite the country while delivering on these long elusive needs. Many of us have analyzed the available pool, declared or otherwise and have concluded Raila Odinga is such a leader and that is a majority view as recent polling in the country indicates as well. It therefore goes without saying it makes sense to support Raila in his bid for the presidency or if you have to oppose him, then do so with something more substantive than simply because he is a Luo or other irrelevant and bogus reasons such as the one I have heard here that Raila created and has kept the Kibera slums for his political benefit which is not only bogus but absurd.

Peace, Love, and Unity.


Posted by on April 18, 2011 in Siasa


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Who Is Martha Karua Part I

Who Is Martha Karua Part I

Hon. Martha Wangari Karua (HMK), born 22 September 1957, is a Member of Parliament for Gichugu Constituency and an Advocate of the High Court of Kenya. HMK rose to national prominence following the disputed elections of 2007 when she became one of the most hardline advisers to President Mwai Kibaki and was rewarded for her efforts with re-appointment as Minister of Justice, National Cohesion and Constitutional Affairs, a position she held until resigning from it in April 2009, blaming her departure on Kibaki’s other hardcore inner-cabinet that had sought and succeeded in rendering her a lion without claws.

HMK was born in Kirinyaga District, Central Province of Kenya; she is the second born in a family of eight siblings, four girls and four boys. She studied law at the University of Nairobi from 1977 to 1980 and between 1980 and 1981 she was enrolled at the Kenya School of Law for the statutory post graduate law course that is a prerequisite to admission to the Kenyan roll of advocates and licensing to practice law in Kenya. HMK embarked on her professional career in 1981 as a magistrate and was promoted 3 years later to resident magistrate in charge of Makadara Law Courts for about 1 year and later Kibera Law Courts where she served for another year before exiting judicial service in 1987 to start her own firm, Martha Karua & Co. Advocates which she operated until 2002.

HMK was part of the opposition political movements that successfully agitated for the reintroduction of multi-party democracy in Kenya in the early 1990s. She joined Kenneth Matiba’s Ford-Asili party but lost the party nomination ticket to the wealthy and influential former Head of Public Service Geoffrey Kareithi. She was then offered a ticket and support by the Democratic Party of Kenya (DP) elders who wanted a clean break from the Kareithi – Nahashon Njuno rivalry. Karua won the 1992 general election to become the MP for Gichugu constituency and the first woman lawyer to be popularly elected to Parliament. She was also appointed as the party’s legal affairs secretary between 1992 and 1997.

In 2001, when the Constitutional Review Bill was laid before the House, the entire Opposition with the exception of Karua walked out of Parliament. The Bill had been rejected by the Opposition as well as Civil Society but HMK in her first display of stubborn inflexibility based on her convictions, took the view that as elected representatives, instead of walking out, it would be more prudent to remain in Parliament and put the objections on record which she did.

HMK later enjoyed the coattails of the political coalition NARC that won the 2003 General Election in Kenya with Kibaki at the helm, having been put there by his friend and now co-leader of Kenya, Raila Amolo Odinga (RAO) with his “Kibaki Tosha” electrifying speech. The NARC coalition not only ended KANU’s nearly four decades of stranglehold on leadership in Kenya’s politics by trouncing Daniel Arap Moi’s handpicked successor, Uhuru Kenyatta, it also put all future presidents on notice that you cannot impose your wishes on the country just because you are president; the people actually matter in deciding their destiny thus the Uhuru Project in this respect was the first and last, poorly as it was conceived or otherwise.

That is the way it should be but I digress.

Following the disputed elections of 2007 in which many, including international observers believed Kibaki had lost handsomely, the country erupted in what nearly became a civil war. With pressure mounting from within and from outside, Kibaki was quickly forced to face reality and seek a resolution of the crisis short of his remaining president as though he had won outright.

To this end, Kibaki appointed HMK as one of his negotiators with the RAO team under the direction of Kofi Annan. During the negotiations, HMK displayed some of the most unyielding and hardline stances the country had seen to date and probably forever.

Fortunately, however, the people’s prayers, Kofi Annan’s skill and dogged determination and Raila’s willingness to bend over backwards more than Kibaki did for the sake of peace, the parties agreed on a compromise that became the National Coalition government we currently have in Kenya.

As noted above, HMK was rewarded by Kibaki for her efforts by being re-appointed to the Cabinet albeit this time somewhat legally as Justice, National Cohesion and Constitutional Affairs Minister in the grand coalition Cabinet announced by Kibaki on April 13, 2008.

Meanwhile, HMK was endorsed as the national chairperson of the NARC-Kenya political party on November 15, 2008 the old-fashioned way, namely, with virtually no competitive election during the party’s national delegates’ convention at the Bomas of Kenya in Nairobi where all officials including HMK were simply endorsed to their respective offices. So much for democracy but I digress again.

Not liking the medicine from the cabinet she once filled with her own dozes to be served by His Excellency President Emilio Mwai Kibaki, especially during the crisis, HMK resigned as Minister of Justice and Constitutional Affairs on April 6, 2009, citing frustrations in discharging her duties.

Not much else is remembered about what HMK did at Justice but in February 2009, she had a memorable and heated argument with the then Minister of Agriculture and now suspended Higher Education Minister William Ruto at a cabinet meeting as the President sat quietly, watching the sparring ministers, according to a source at the meeting who said. “The President did not say or do anything. He just sat there quietly watching as the ministers took on each other. It was chaotic, hot and eruptive.” The two ministers had been sparring in public over a period of time, with HMK demanding Mr Ruto’s resignation over a maize scandal. Ruto did not resign then but he was ultimately suspended from the cabinet following a resumption of a fraud case against him which has since been dismissed Kenyan style but not to disappoint, the legal system has other things pending against Ruto putting his return to the Cabinet at best in the unknown category.

HMK’s combativeness not just with Ruto at that time but throughout her political career has earned her choice references, including the “Iron Lady,” the “only man” in the PNU Cabinet and others less favorable not fit to repeat here but love her or hate her, she is certainly a woman to reckon.

In her private life, HMK gained attention after she and a Catholic priest, Fr. Dominic Wamugunda, were carjacked and robbed on December 6, 2003. She said in Parliament that she was under no obligation to provide any explanation for why she was in Wamugunda’s car or what she was doing at the time of the carjacking. Responding to those wondering why her security guards were not with her at the time the crime occurred, classic HMK retorted that when she did not feel she needed the guards, she did not use them and that was pretty much the end of that story.

HMK has now declared she is running for the presidency in 2012.

Roaring in Uhuru Kenyatta’s backyard, and as if to make this point, HMK and her party candidates beat Uhuru’s chosen candidates in two by-elections held on September 20, 2010 in Juja and Makadara where HMK’s candiates, William Kabogo and Gideon Mbuvi Kioko aka “Mike Sonko” picked the parliamentary seats respectfully much to the embarrassment of Uhuru and his party which had obviously underestimated her.

In Part II, I will continue my examination of HMK and her quest for the Presidency

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Posted by on April 16, 2011 in Siasa


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A Conversation with Kalonzo Musyoka

A Conversation with Kalonzo Musyoka

Reporter: Mr. Musyoka, it was learned from the WikiLeaks that you believed that you could not win the elections of 07 as president and that therefore you concluded the best you could get out of it is to spoil Raila’s run for the office in the hopes Kibaki could then make a deal with you to be Vice-President. In fact, many Kenyans, including this journalist suspected this all along but WikiLeaks confirmed this. Does this bother you in any way, namely, that you are Vice President not on account of your leadership but as a reward for helping Kibaki getting re-sworn after an election many believe he lost?

Musyoka: Not at all. In politics, you have to constantly calculate and do what is best for you and your political fortunes. Sometimes whatever that is, is good for the country too but there are times what is good for you is not good for the country. In this case you have to make a decision whether to do what is good for the country or what is good for you. I always prefer to do what is good for me and that is what I did in agreeing to be Vice President for Kibaki even though I knew doing so was not good for the country because he and I knew he had actually lost the elections.

Reporter: Does what happened post-election, especially the violence have you rethinking that what you did in accepting the vice-presidency under those circumstances was wrong?

Musyoka: No. I would do it again because it is all about me and I think I deserve to be in this office and I am right now in the middle of calculating how I can succeed Kibaki as president.

Reporter: Would you mind to share what your strategy is about succeeding Kibaki?

Musyoka: Sure but only just a little bit. You see, the only three people I see as obstacles to ascending to the presidency are Raila, Ruto and Uhuru. Starting with Raila, I think all I need to do is to consult my Spoiler Book from 07 elections. There were chapters in there I did not use which I think could make my efforts even more successful except this time I will be the sole beneficiary. For example, I intend to campaign in all parts of East and Central provinces in making sure I remind the Kikuyus, Merus and Kambas that Raila cannot be trusted. I will also engineer a campaign to remind Kenyans from other parts of the country that if Raila is elected, their homes and businesses will be taken over by Luos…

Reporter: But Mr. Musyoka, you know none of that is true so why would you be spreading such malicious lies?

Musyoka: Because I don’t think telling the truth will help me with Raila. He is so clean I can’t find anything negative I can exploit in his life to make the case against him so I must make up stuff. I know there are some Luos who say Raila has not done anything for them but I am afraid I am not credible to say anything about not doing anything for anyone. Besides, this kind of thing is said about anyone in leadership so I don’t think it is a good strategy to use against Raila.

Reporter: Okay, I take it your strategy against Raila is to spread lies and smear his name; what about Uhuru and Ruto:

Musyoka: Now; that’s a tough one but I think I have a winning two-prong strategy against either or both of them: First, I would work very hard to make sure I am in a coalition with them. I will negotiate a deal to have me as the presidential candidate on condition I serve one term; Uhuru will be my Vice-President and Ruto will remain in Parliament. In the next circle, I will step down in favor of Uhuru and Ruto will be his Vice-President. I just need to be president for one time so I can say I was president. I like the prestige and power that comes from being president but I don’t see how I get elected legitimately without making this kind of deal.

Reporter: What is your other strategy:

Musyoka: This one is tricky. You see, the best scenario is for me to emerge as presidential candidate with the support of Ruto and Uhuru’s supporters but this strategy calls for me to have all of them to myself. The scenario I described above is the more direct and straightforward but it is designed to maximize tribalism for the three of us. The other strategy is to use tribalism but for my sole benefit. The way it would work is for me to support as I have the Ocampo Six in efforts to defer their cases but to quietly pray as I have that Uhuru and Ruto are both nailed by Ocampo. This way, I can go around the country telling their supporters this is Raila’s fault and that therefore they should elect me to secure their freedom.

Reporter: Do you believe God will answer your prayer given this conniving purpose for it?

Musyoka: Oh yes! Do you not see me in church every Sunday? I believe in the power of prayer. I am a Christian and staunch believer.

Reporter: Mr. Musyoka, but the U.S. Ambassador said in the same WikiLeaks that you are a Christian for convenience only so how is one to take your religious affiliation seriously?

Musyoka: You see, this is your problem not mine. I know pretending to be a Christian has real advantages. I can give you many examples of televangelists who have become filthy rich because their followers believe they are men and women of God and pour money to them when they are in, fact, common thieves. So, I am not concerned about what the US ambassador said about my Christianity.

Reporter: Is there anything else you would like to say Mr. Musyoka:

Musyoka: Well, there is but that will really blow you away I am not sure I want to say it.

Reporter: What is it? Go ahead and say it; will be happy to hear it.

Musyoka: Well, the Vice-President of Kenya is the best job I can have; there is nothing I do other than occasionally fighting to get photo opportunities at various functions and ceremonies. For the most part, I am sitting in my office doodling on my large desk with no evidence of work being done there or otherwise tending to my personal business. I love the job so much I may just strike a deal with Uhuru to support him in exchange for my staying put as Vice-President.

Reporter: Wow, you are really serious for you its not about the country but about you!

Musyoka: Indeed, indeed.


Disclaimer: The foregoing is an imaginary interview session between Kalonzo Musyoka and an imaginary reporter. It is not intended to be taken as an event that actually occurred.


Posted by on April 11, 2011 in Siasa, Uncategorized


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Who Is William Ruto Part V

Who Is William Ruto

Part V

Four years after the eruption of post-election violence in Kenya (“PEV”), and after more than 2 years of Kenya’s inability or unwillingness to prosecute the perpetrators of the violence, the International Criminal Court (“ICC”) has summoned six suspects named by its Chief Prosecutor, Luis Moreno Ocampo (“the Chief Prosecutor” or “Ocampo”) as the most responsible for the violence. Ruto is among the six or the “Ocampo Six,” as they are collectively referred to. The other five suspects are Uhuru Kenyatta, Francis Muthaura, Hussein Ali, Henry Kosgey and Joshua Sang.

Efforts by Kibaki and his half of the government coalition to defer the ICC trial of the Ocampo Six having failed, the Six are headed to the Hague where Ruto, Kosgey and Sang are scheduled to be formally told today what it is they are being charged with. Their co-defendants will appear tomorrow for the same purpose. This is a formality with predictable outcome: the suspects will plead not guilty as charged, unless any of them confesses which will make an otherwise very boring day very exciting.

In this last series on Who Is William Ruto, I attempt to lay out what I believe his legal defense to be. As noted previously, I do this on principle and notwithstanding my criticism of the man which I will continue to provide when he is off the reservation. Now then, what is Ruto’s legal defense?[1]

As I noted in introducing this piece in Part IV, there is first the time honored defense mastered by humanity from approximately the age of 2 and onwards regardless of fact when faced with an accusation and that is simply, “I did not do it.” Given the success of this defense or lack thereof through the ages, however, especially when given reason to believe one has done what he or she is accused of as in this case where the ICC has reason to believe and has charged Ruto of committing crimes against humanity, then a more substantive and persuasive defense is necessary.

In sum, I see the following four defenses for Ruto (and by extension Kosgey and Sang) against the Charges he currently faces and outcome:

  1. The ICC has no jurisdiction. Fail
  2. The elements of the case not proven. Succeed.
  3. The Prosecutor’s evidence is not sufficient to establish “reason to believe” Ruto has committed these offenses: Succeed.
  4. Trial: Acquital

From the outset, I should note the final outcome of this case will be the same even if Ruto were to be tried in Kenya and thus my amazement why he joined Uhuru, Muthaura and Hussain (“UMH”) in fighting against going to the Hague.  On the other hand, it is more likely for UMH to be convicted at the Hague than at home for reasons I cannot get into now for the trio are not the subject of my analysis. Be as it may, I have already predicted acquittal for Ruto but let me elaborate.

By my count, Ruto has 3 basic defences and of these 3, one will fail but two will succeed, leading to his acquittal. The defense that will fail relates to the argument recently offered by lawyers Kibaki hired from outside the country to advise him after failing to secure a deferral of the cases and this is the jurisdictional argument, essentially arguing that the ICC does not have authority to entertain the case under the Rome Statute.

As I have argued elsewhere in my blog, this argument is doomed to fail for two reasons: First, the ICC can automatically exercise jurisdiction under Article 12 of the Statute over crimes committed on the territory of a State Party or by a national of a State Party such as the ones the Ocampo Six are charged with. In this case, Kenya, a State Party, actually referred these cases to ICC thereby subjecting itself to ICC jurisdiction under Article 13. These are more than enough reasons for ICC to satisfy itself it has jurisdiction but there is more that need not be explored here.

Second, on the question of admissibility of the Ocampo Six case which belies the question of jurisdiction, the ICC only looks to see if there is a credible ongoing investigation and or prosecution of any or all of the named suspects in Kenya. As of this writing, there is no such a thing going on therefore to challenge the ICC cases on this ground is indeed without basis as the circumstances stand today. Were Kibaki to agree and follow through with the conditions set forth elsewhere on this blog, including passing a law to try PEV suspects locally, then the ICC might entertain an application at this stage of the game under Article 17(1)(c) of the Statute but any other application is doomed to fail.

This then leaves Ruto with two technical defenses that ultimately he and the other two (Kosgey and Sang) will prevail on and these are the lack of “reason to believe” and failure to satisfy the definitional requirements of the elements necessary to secure a conviction under the Rome Statute.

In order to secure a conviction against Ruto, the Prosecutor must, among other things prove the existence of “a widespread” or “systematic” attack against a civilian population. However, Article 7(2) Rome Statute requires that the Prosecutor must not only prove that there were multiple acts directed against a civilian population in a systemic and widespread manner but also that these acts were pursuant to or in furtherance of a “State” or “organizational” policy to commit those acts.

There is no evidence and I don’t believe the Prosecutor can show that Ruto acted in furtherance of a “State” or “organizational policy.” Ruto was not part of the government during the PEV period so he could not have been acting in furtherance of a State policy. He campaigned and belongs to the Orange Democratic Party (ODM) but the party had nothing to do with PEV and certainly it did not have a policy of engaging in systemic commission of crimes against humanity therefore the “organizational policy” prong of the element of an ICC crime also fails.  The failure to satisfy the requirements of the “State” or “organizational” element alone could have the entire case against Ruto thrown out.[2] This is not to say Ruto could not be tried and found guilty of commission of the same crimes he is accused of if this element is not satisfied but that has to be in Kenya not at the ICC and perhaps this is why the Ocampo Six initially preferred the Hague but changed their minds later–I doubt though as there seems not to have been a coherent legal strategy about this but there is plenty of evidence political calculations played the upper hand.[3]

The reason the Rome Statute imposes a state or organizational policy element in ICC crimes against humanity is because doing otherwise will simply transform domestic crimes into international crimes on the basis of the quantitative outcome of the harm and the manner in which it is performed without wars. In other words, you can’t just look and say there were widespread and systemic crimes in the country therefore these must be crimes against humanity; you must also have to show that these were done at the direction of an authoritative person in the government, the government itself or at the direction of an organization which had commission of these crimes as a policy. None of this apply in Ruto’s case and thus my conclusion he walks on this ground alone.

The question, however, remains what kind of state or organizational involvement would be required, if Ocampo were to succeed in showing that Ruto was acting pursuant to some organizational policy. Gazetting such a policy would the obvious case for the government in this case but you know that will never happen, ditto for an organization to go to the presses with their policy to commit widespread and systemic crimes against civilians. At best, only inferential evidence can be offered in this case but only as against UMH and not Ruto.

On the other hand, a reverse corollary question to be asked and answered is would an act constitute a crime against humanity under the Rome Statute, if a state or organization turned a blind eye to acts committed against a civilian population? According to the Introduction to the Elements of Crimes Against Humanity, it is understood that “policy to commit such an attack requires that the state or organization actively promote or encourage such an attack against a civilian population. A footnote to this part of the text explains the following:

“A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of government or organizational action[4].” This level of analysis provides yet another reason Ruto walks free as it eliminates ODM being dragged into this in any way because the party had no such policy otherwise it would have been implicated from the beginning.[5] Having no provable organizational policy, the inquiry as to this question is at an end in favor of Ruto.

Ruto may also walk on failure to satisfy another element of an ICC crime and that is the “discriminatory” element albeit on a lesser degree.  Opinions on this issue have varied over the years, but according to many, some form of discriminatory intent is inherent in the notion of crimes against humanity[6]. Although the Prosecutor’s success or failure in satisfying this element is a toss-up in my view, his task may be made even more difficult given yet another related element and that is intent.

In conformity with Article 7, the Elements of crime against humanity also require that the perpetrator knew that the conduct was part of, or intended to be part of, a “widespread or systematic” attack. This discriminatory intent requirement which describes the context in which the conduct must take place, applies to all enumerated acts constituting crimes against humanity under Article 7. Article 30 of the Rome Statute meanwhile specifically states that, unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge

According to the Introduction to the Elements of crimes against humanity cited above, however, proof is not required for determining that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the state or organization. The mental element is satisfied if the perpetrator intended to further such a widespread or systematic attack. It is very unlikely in my view that the Prosecutor will be able to show this going by what has been reported. Ruto can simply argue, if he is courageous enough to, that all he ever intended to do was to repel attacks from the Mungiki thugs who had been sent to kill his people.

Ruto also walks even if a full trial was to be held on these same grounds (substantively by challenging the Prosecutors evidence or lack thereof, or successfully rebutting same) and on grounds, dispositively, I believe, that horrendous as it was, what happened in Kenya in early 2008 does not rise to the level of “crimes against humanity.” This is because the Rome Statute does not bring within its jurisdiction crimes that are unrelated to the widespread or systematic attack against a civilian population. The acts must be related to the attack and the perpetrator must have been aware that the crime was so related. Thus, Ruto, and the Ocampo Six for that matter can argue, successfully in my view, that what happened in early 2008 was acts of hooliganism and common criminality to be handled by the Kenyan courts. I am fairly convinced this closing argument at the end of trial will prevail if it has not before then as a technical defense.

For these reasons, it is my submission that Ruto walks at the Hague. Notwithstanding his going astray, ODM should support him for his trial at the Hague and hopefully in return for the good gesture, Ruto can go back to the drawing board and see where he miscalculated, make good with Raila and we all shall be happy again as a party which is good news for the country.

[1] Ruto’s defense in my view is substantially the same as Kosgey and Sang’s defense so when I say Ruto I include Kosgey and Sang in this context.

[2] Ruto may alternatively argue that even assuming, arguendo, that organizational policy is established, the acts were not “widespread” or “systemic” rather they were isolated and regional. In other words, in order to be “widespread” or “systemic,” the acts had to be committed throughout the county pursuant to this organizational policy. (Please don’t send me emails accusing me of how could I say this; after all, we are talking about thousands of Kenyans who lost lives. I know that fully but am advancing a legal defense the way I see Ruto presenting it)..

[3] Ruto has a solid defense nonetheless even if he were to be tried in Kenya and not at the Hague.

[4] Draft finalized text of the Elements of Crime, UN Doc. PCNICC/200/INF/3/Add.2(2000), p9 and n.6\

[5] Interestingly, Uhuru, Muthaura and Ali may walk on this ground as well.

[6] See generally, O Swaak-Goldman, “Crimes Against Humanity,” in G.K. McDonald and O Swaak-Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law, Vol. 1, The Hague/Boston/London: Kulwer Law International 2000, pp. 143-168.


Posted by on April 7, 2011 in Siasa


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Who Is William Ruto Part IV

Who Is William Ruto

Part IV

Four years after the eruption of post-election violence in Kenya (“PEV”), and after more than 2 years of Kenya’s inability or unwillingness to prosecute the perpetrators of the violence, the International Criminal Court (“ICC”) has summoned six suspects named by its Chief Prosecutor, Luis Moreno Ocampo (“the Chief Prosecutor” or “Ocampo”) as the most responsible for the violence. Ruto is among the six or the “Ocampo Six,” as they are collectively referred to. The other five suspects are Uhuru Kenyatta, Francis Muthaura, Henry Kosgey, Hussein Ali, and Joshua Sang. Immediately following the naming of the Ocampo Six, President Kibaki and his half of the coalition government went into full gear in efforts to defer the ICC prosecution of these cases. These efforts have, however, thus far been futile and the case is moving forward. The Ocampo Six are now scheduled to appear at the Hague this week to have the charges against them formally read to them.

In previous parts of this five part series, I have tried to describe who Ruto is and what led to his being charged at the Hague as well the politics of all of this. In this second to last part of this series, I am offering what Ruto may have as a defense against the charges he faces. I fully anticipate some may take this to be a contradiction, namely, why would I be so critical of Ruto as I have been, yet offer a defense for him (as opposed to offering a case why Ocampo should nail him to the wall). I don’t think the two positions I have taken are inconsistent in any way; I am aligned with the Orange Democratic Party (“ODM”) and Ruto was one of those who supported and campaigned on the ODM platform.

I actually had an occasion to meet Ruto and four of the Pentagon Five at the Fairview Hotel in Nairobi just before the elections in 07 and told a Kalenjin friend I was with immediately after the meeting that, looking at that table, and given Ruto’s discomfort with our presence, it was my conclusion that Ruto could not possibly be on that team for much long after the elections.

I based my assessment on what I observed with the four sitting at table and told my friend this: there was Ruto, looking at Ngilu, Mudavadi and Balala and visually Raila who was not present at the time; of the four, he was the most visibly annoyed with our briefly joining them (we were actually there to have an unrelated lunch at a table next to the gazebo table where they were seated so we did the obligatory hello as we were passing by and actually had a very good chat with all but Ruto who was mum).

Be as it may, we moved on to our table after the brief chat and there I told my friend what I observed and thought: knowing he was the youngest of the four sitting there and the fifth Pentagon member who was not present but in his mind, Ruto must have surely been thinking if each ruled as president at a minimum one term, that would translate to 25 years before his turn arrived, going by the politics of the oldest first; if each ruled for a maximum two terms, he was then looking at 50 years before his turn. If you factor in the opposition taking one or two of those terms, add at least five more years, which whichever way he looked at it, he couldn’t possibly wait that long.

For this reason, I told my friend Ruto would soon have to find a way to cut the line and this could not possibly happen in ODM. The only way he could not have been thinking about this, I told my friend, was if he was given a pacifier in the form of a premiership which Ruto now claims he was promised but not given, never mind the person who he claims promised him this could not have offered him this as he was himself the Prime Minister.

My assessment of Ruto back in December 2007 to my friend and others has turned out to quite the case and I am sure others saw the same thing as Ruto has for all practical purposes abandoned ODM and seeks another path to State House shorter than what chance he has through ODM. There is one little stumbling block in the way, however, and that is the ICC.

I will in another blog analyze the political implications of the prosecution of the Ocampo Six or more relevantly, the political implications of the prosecution of Ruto and Uhuru. In this next to final part of my series on Who Is William Ruto, however, I set forth what I believe to be his defense against the charges he faces at the Hague. As I have noted above, I fully anticipate some may not understand how I can be so critical of Ruto and yet offer a defense for him or even why offer a defense at all for someone accused of serious crimes like this.

There are two things I say in response to this: First, as I have noted above and elsewhere in my blog, I have nothing against Ruto personally and even if I strongly disagree or dislike a number of things Ruto has said or done politically or otherwise, I would nonetheless still defend him over what he is charged with as a matter of principle because the accusations against him relate to when he was waring the ODM badge of honor.

This is not to say the party had anything to do with what he is charged with; it did not.

Second, in all criminal proceedings, all accused must be deemed innocent until proven guilty therefore offering a defense for someone like Ruto is not a judgment of his guilt or innocence. A good example given by criminal law professors to First Year Law students to illustrate this concept is, imagine you have graduated, set up a solo practice and someone walks into your office and says they have shot and killed their neighbor; what do you do? All sort of fancy answers are given except the one the professor is looking for: asking the person how do they know they have shot and killed their neighbor? Someone else could have fired from another direction at the same time and his bullet hit the neighbor first and therefore they are guilty of murder not the prospective client!

Be as it may be, defending Ruto is a position I have maintained from even before Ruto was publicly named as a PEV suspect as those I talk to know. Indeed, I would still defend Ruto in principle even if he were to formally leave ODM and join PNU (which he has for all practical purposes done). I will also continue pointing out the wrongs he is committing, including his ill-advised obsession with “blocking” Raila in the false hopes and belief that he could be factored into the Kibaki succession equation from the PNU side as a reward for such efforts. I will another time write a blog trying to answer the question why do politicians get so gullible they don’t know when they are being used by other politicians or if they know they are being used what does it say about their character?

For now, let me address the question what then, is Ruto’s defense against the ICC charges? First, there is the time honored defense mastered by humanity from approximately the age of 2 and onwards regardless of fact when faced with an accusation and that is simply, “I did not do it.” Given the success of this defense or lack thereof through the ages, however, especially when given reason to believe one has done what he or she is accused of as in this case where the ICC has reason to believe and has charged Ruto of committing crimes against humanity, then a more substantive and persuasive defense is necessary.

(In Part V, I will present the Ruto defense as I see it)

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Posted by on April 4, 2011 in Siasa


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Countdown to Ocampo Six at the Hague

As the countdown begins for the Ocampo Six to appear before the International Criminal Court at the Hague, I have started to reflect how we got here. I was in Kenya during the 07 elections and witnessed the vote rigging and ensuing crisis first-hand. I remember as things were getting really ugly with countless days of sleeplessness, I decided I would best serve our country by returning to the US and do what I could to lobby the US government in finding a solution to the crisis. A handful of my friends and I spent days on end in Washington knocking doors at the State Department, the Congress and the White House. Nothing else seemed to matter at the time, including going to work.

I know our efforts were not in vain for at least the US government shifted its thinking and fully joined the rest of the world in forcing Kibaki to agree to a power sharing deal with Raila. The rest, as they say is history. Some of it in the making, including the PEV Ocampo Six trial at the Hague which has created a crisis of its own if not abated recently. I recently wrote an open letter to President Kibaki which is on this blog but as the Ocampo Six head to the Hague next week, I have been reflecting and something happened today reminding me of the letter below I wrote to the then U.S. President George W. Bush. I was told the letter was handed to him by a US Senator who received it from is friend I am friends with. The irony of it was this was one Senator I did not like his politics at all during that time and still don’t! But I appreciated his act of kindness in agreeing to do this and know he is a very compassionate person; just has his politics on the wrong path.

The Ocampo Six are now headed to the Hague to be tried for the post-election violence (PEV).

In my next blog, I intend to continue with my series on Who Is William Ruto in which I postulate what his his defense might be. Yes, even as critical as I have been about what Ruto has been doing lately, I would nonetheless defend him over what he is charged with as a matter of principle because he is an ODM member. This is a position I have maintained from even before he was publicly named as my friends know. I will still defend Ruto in principle even if he were to formally leave ODM and join PNU (many believe he has for all practical purposes done this). I will also continue pointing out the wrongs he is committing, including his ill-advised move to torment Raila in the false hopes he could be factored into the Kibaki succession.

I will another time write a blog trying to answer the question why do politicians get so gullible they don’t know when they are being used by other politicians or if they know they are being used what does it say about their character? I suppose the quick answer is nothing to be desired and certainly not a shining example of good leadership. Anyway, some may question why I would be so critical of Ruto even as I offer a defense strategy for him against the ICC charges and my answer is I don’t have anything against Ruto as a person; I just have problems with what he at times does that seems totally selfish and opportunistic instead of aspiring to be a national leader which he could be if he shakes the demons that have been bedeviling him lately, especially his obsession to “block” Raila from ascending to the presidency. Ruto has no bearing on whether or not Raila is elected President and this is true despite his myopic belief that he does.

My letter to POUSA George W. Bush:

January 17, 2008

The Honorable George W Bush

President of the United States

1600 Pennsylvania Avenue

Washington, DC 20500

Dear Mr. President:

I am a Kenyan American and am writing to you in connection with the human and political crisis currently engulfing my native country, Kenya.  I write to you as an individual but my views are to the word representative of millions of others expressed by Kenyans to whoever can hear them.

As you know, Kenyans went to the polls on December 27, 2007 to elect their president and other political leaders.  By all accounts, the elections were conducted in a peaceful and orderly manner, with record turn-out in most precincts.  Tallying of the votes at individual polling stations was also conducted peacefully and orderly across most of the country.

I was in Kenya during the elections and witnessed this in person at a number of polling stations I visited throughout the day, going into the wee hours of the morning when votes were being counted.

Unfortunately, however, when it came to announcing the results by the Electoral Commission of Kenya (ECK), Kenyans in total disbelief witnessed the most flagrant, shameless and unprecedented systematic tempering in the collection and announcement of poll results that resulted in the declaration by ECK that the incumbent president had won the elections when he, in fact, lost in a landslide to his major opponent, Raila Odinga.

Indeed, the rigging was so glaringly obvious, independent international observers, including the European Union (EU), concluded that the presidential election outcome in Kenya is not credible. EU’s preliminary report on 2007 elections in Kenya is available at

Meanwhile, on being declared the winner by ECK, the incumbent president hastily and within minutes had himself sworn in as president at a State House function attended by a number of members of his government that had just been trounced at the polls[1].

Shortly thereafter, Mr. Kibaki, through one of his ministers, banned live coverage of news events in Kenya and instructed media editors to edit information given to the public.  The minister also banned peaceful public demonstrations called by the actual winner of the presidential elections and his party.  The ban remains in effect and is being enforced by police and soldiers with instructions to shoot-to-kill.

The fraudulent installation of Mr. Mwai Kibaki as president of Kenya and his subsequent actions aided by his henchmen is not only an affront to Kenyans everywhere, if let stand, it would destroy what little gains Kenya has achieved in democratic reforms and will in all likelihood result in unprecedented violence and turmoil and quite possibly, genocide in Kenya. It would also destabilize the entire East and Central Africa region which depends on Kenya’s stability.

Mr. President, your leadership and, indeed, that of the United States is once again needed to make a difference in world affairs that affect the interests of the United States.  Kenya is not only strategically important in the East and Central African region, it is an ally of the United States in its war on terrorism therefore its stability is paramount.

Unfortunately, however, Mr. Kibaki and his advisors believe the US, in weighing what to do with the current crisis, in light of Kenya’s role in the war on terrorism, would more likely prefer to have Mr. Kibaki remain in power under the belief the US would rather deal with the “devil she knows” rather than the “devil she does not know.”

Kibaki’s thinking is flawed for a number of reasons and the US must not allow him to benefit from this flawed logic.  Kenya has been and will continue to be a friend of the United States regardless of who is in power on either end for obvious reasons—assuming, of course, that Kenya survives this gravest test to her survival as a nation.

If nothing is done and Mr. Kibaki remains in power despite having handily lost in the elections, I am afraid the country would degenerate into civil war and possibly genocide because the anger among the Kenyan people is deep and unlikely to dissipate unless a solution to the crisis is found that reflects the will of the majority of its citizenry.

Needless to say, Kenya’s disintegration into civil war would certainly be detrimental to the United States’ own national security, given the country’s role in the war on terrorism, not to say anything about the loss of lives and devastation such a civil war would cause.

Mr. President, there are a number of things the United States, through your leadership, can do to immediately bring about a peaceful resolution of the crisis in Kenya but I can think of four:

First, the US must demand that Kibaki lifts the media black-out and allow the free-flow of information the absence of which is causing grave anxiety, rumor-mongering and even death as people react to some of these rumors.

Second, the US must insist that peaceful rallies by Kenyans must be allowed and along with this, the incumbent Mr. Kibaki must immediately lift the shoot-to-kill order now in place that has resulted in innocent Kenyans being shot to death by trigger happy police and soldiers.  The continued banning of peaceful rallies only delays the inevitable because people are angry and they must ultimately vent their anger.

Third, the US should immediately take steps to enforce Ambassador Frazer’s pronouncement that the it will not be business as usual with Kenya, if a resolution of the crisis is not reached.  These steps should include at the minimum, imposition of sanctions on Kenya, cutting off non-essential aid, and the declaration of Kibaki and his clique as a persona non grata.  I realize these actions may be draconian relative to the US standard policy in these matters but what Mr. Kibaki has done deserves nothing less, even as a matter of diplomatic courtesy.

Fourth and most importantly, the US must insist on formation of a transitional government with a mandate to organize and conduct new presidential elections in Kenya.  This is the only fair resolution of this crisis because no one doubts that the elections in Kenya were severely rigged beyond the tolorable.  Had this been the normal rigging that invariably takes place everywhere in closely contested elections, one may be inclined to accept status quo and forge forward.

The rigging that occurred in Kenya was, however, blatant and unacceptable by any measure.  For the US, and the rest of the world for that matter, to allow Mr. Kibaki to nullify the will of more than 5 million Kenyans that went to the polls on December 27, 2007 with impunity would be contrary to the United States’ own policy of promoting democracy everywhere, not to say anything about the violence and turmoil that is certain to ensue in Kenya were that to be the case.

I therefore kindly urge you Mr. President to use your gracious office and proven leadership to assist us in reaching these goals and to do anything else within your powers to ensure attainment of peace and justice for Kenya.



Samuel N. Omwenga

[1] It is widely believed Mr. Kibaki was, in fact, sworn in before the ECK announced the results and the public was shown the video later.

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Posted by on April 2, 2011 in Uncategorized


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