On December 30, 2007, the Kenyan Electoral Commission declared Kibaki, the incumbent, the winner over the Luo Raila Odinga in the just-completed presidential election. International observers said that they had been denied access to polling stations, and there were widespread and credible reports of extensive ballot box s tuffing, falsification of returns, and other instances of fraud. Kibaki was hastily sworn in as president, and ethnic violence opposing him broke out. Many Luos (the tribe of Barack Obama’s father) believed that they had been robbed of a victory, and mobs of young Luo men with crude weapons began attacking Kikuyus in the Rift Valley and other areas.
The Waki Report, a comprehensive study of the violence released in the fall of 2008, quoted a Kikuyu survivor in the town of Eldoret:
Some Nandi [a Rift Valley ethnic group] were running after people on the road. I ran away with my children. I saw a man being killed by cutting with a panga and hit by clubs when I was running…. My last born child fell a distance away from my arm, was hurt, and was crying. Some people were running after me and when I fell, two men caught me. They tore my panties and they both raped me in turn.
Harun Ndubi, an attorney and a human rights activist in Nairobi, told me that in early January 2008, while Luos and their tribal allies were hunting down Kikuyus and killing them, he met with James Maina Kabutu, a self-described member of the Mungiki who was now willing to denounce both the secret organization and Kenyatta. Maina Kabutu claimed that he had attended meetings in State House between Mungiki leaders and high-ranking politicians, including Kenyatta, to plan the retaliatory killings of Luos and Kalenjins. “He also mentioned that Uhuru had funded some of the Mungiki people [and had] participated in a meeting [with the Mungiki] at the Nairobi Club,” a private club established in 1901 and popular among Kenya’s governmental elite.
Human Rights Watch says that in January 2008 the Mungiki hacked Luos and others to death in the Rift Valley’s main town, Nakuru. They forcibly circumcised others, and burned to death nineteen people, including women and children, in a house in Naivasha. More than five hundred people died in the Mungiki-sponsored violence. The close friend of Kenyatta’s acknowledges that the organization regarded him as their “spiritual leader.” But he says that in speeches in Limuru and elsewhere, Kenyatta urged people not to retaliate: “He was telling people that it can’t be an eye for an eye.” Maina Kabutu fled to Tanzania, then to the United States, where in a sworn statement before the International Criminal Court he said that Mungiki had been deployed to the Rift Valley and other areas “to defend our people.”
In March 2011 the International Criminal Court indicted Uhuru Kenyatta, then serving as finance minister, and three other Kenyan political figures for the violence of 2007 and 2008. The indictment drew on the testimony of several eyewitnesses, including Maina Kabutu. The charges said that
there are reasonable grounds to believe that indeed Kenyatta…organized and facilitated, on several occasions, meetings between powerful pro-[Party of National Unity] figures and representatives of the Mungiki.
In addition, Kenyatta “supervised the preparation and coordination of the Mungiki in advance of the attack [and] contributed money towards the retaliatory attack perpetrated by the Mungiki in the Rift Valley.”
In the months before the March 2013 election, Kenyatta portrayed the ICC as a tool of Western governments. He exploited Kenyans’ growing pride in their country and lingering resentment about interference by the United States and Great Britain. In a bold stroke, Kenyatta chose as his running mate William Ruto, a charismatic Kalenjin who had been indicted by the ICC for organizing attacks against Kikuyus in the post-election killing spree. The pair presented their Jubilee Alliance as a gesture of reconciliation, though one observer I talked to said they believed it would “inoculate” them against an ICC trial. The court, they believed, was unlikely to defy the will of the Kenyan people by arresting its two elected leaders.
One month before the election, the US Assistant Secretary of State Johnnie Carson warned Kenyan voters that “choices have consequences.” The warning, observers say, backfired. “Kenyans were saying to themselves, ‘Why should we be dictated to?,’” I was told by Mwenda Njoka, the managing editor of The Standard, one of Kenya’s largest daily newspapers. The journalist I met in Gatundu, Francis Maina, summed up the attitude of Kenyatta supporters toward the court. “The charges are framed up,” Maina told me. “The masters, the Western powers, have a desire to meddle in Kenya’s affairs.”
Kenyatta’s defenders included Jendayi Frazer, who served as US assistant secretary of state for African affairs at the time of the 2007 election, and who has become an opponent of the International Criminal Court. The ICC, she told me, was being used by the US and British governments to undermine Kenyatta and strengthen Raila Odinga, their preferred candidate. “The US government, which is not even a signatory to the ICC, uses this flap around Kenyatta’s head to say that the Kenyan people should not elect him, and that’s inappropriate,” she said.
Frazer insisted that the ICC had no business looking into a matter that should have been the responsibility of a domestic court. “You don’t want to minimize the number of people who lost their lives,” says Frazer, “but post-election violence of a few weeks is not on the scale of genocide.” As it happened, Kenya’s Parliament had refused to authorize an independent special tribunal to investigate the post-electoral violence, a failure blamed by US Ambassador Ranneberger on Kenyatta’s “working behind the scenes” to undermine the initiative.
On a rainy afternoon, ten days after the presidential election, I wandered through the Nairobi slum called Kibera, one of the largest in East Africa and a stronghold of Raila Odinga. Kenyatta’s victory, certified by the electoral commission, was facing legal challenges by Odinga and several independent groups, and Kenyans were waiting for the Supreme Court to decide whether to nullify the result and call for a new vote. I parked the car on a muddy lane near the primary school where Odinga had voted, and walked past a tin-roofed market and a shabby cybercafé. In front of a stand for matatus—Kenya’s ubiquitous, unregulated minibuses—I met a driver, Moses Otieno Oguto, from the province of Nyanza, Odinga’s birthplace. In January 2008, after Kibaki declared himself the winner, Oguto had watched police shoot down Luo protesters in the alleys of Kibera. “People died in front of me,” he said. “I don’t want this to happen again.”
Kenya’s election was supposed to be a showcase for the technological advances that the country had made, as well as its commitment to transparency. A broad-based new electoral commission introduced features including biometric voter identification kits and an instantaneous reporting system by which officials at each of Kenya’s 33,000 polling stations could dispatch the results by mobile phones over a secure server to a central registry in Nairobi. But the entire system crashed on election day, forcing officials to revert to old methods: tabulating the votes on paper registration sheets, and sending them by courier to Nairobi. Odinga and his supporters claimed that many of the sheets were tampered with, and also charged that Kenyatta made use of thousands of phantom voters, allowing him to push his total to just above 50 percent.
I asked Oguto, the matatu driver, how the residents of Kibera would react if the Supreme Court ratified Kenyatta’s victory. “There won’t be problems this time,” he assured me. In the same breath, he admitted, “I do not trust Uhuru, but there is nothing that I can do.”
“We trust Uhuru,” a Kikuyu driver, who gave his name only as Ronald, shot back.
“We don’t,” said another Luo. “We refuse to trust him.”
Wabala, the journalist, pushed me into our vehicle as the men argued. “Kenyans are seething inside,” Wabala told me. “It is a time bomb waiting for a trigger.” According to the Daily Nation, Kenya’s mobile phone companies were scrutinizing text messages for inflammatory words such as “kill,” and were blocking 300,000 “hate texts” per day.
On Saturday, March 30, Kenya’s Supreme Court certified Kenyatta’s victory. There was a smattering of protests, but Odinga accepted the verdict and the country remained quiet. Many Kenyans wondered whether the ICC fracas would blow over. “Witness Number Four”—James Maina Kabutu—a key figure in the case against Kenyatta, had recanted his testimony. ICC prosecutor Fatou Bensouda had been obliged to drop all charges against one of Kenyatta’s co-defendants, Francis Muthaura, the head of security forces at the time of the 2007–2008 violence. Kenyatta’s allies were predicting that the case against him would soon collapse. “It is a weak case and it always has been,” Jendayi Frazer told me. At The Hague, Bensouda insisted that she still had enough evidence to prosecute Kenyatta.
Harun Ndubi, the human rights lawyer, told me that he wasn’t surprised by the turn of events. Maina Kabutu had called him often in recent years, and “told me that he was being threatened, he was pressed by Mungiki people who said they knew where his mother lived, and did he want to see his mother’s head in an envelope.” Western diplomats say that the Kenyatta camp has been tracking down witnesses, trying to intimidate them, and, more often, buying their silence. Kenyatta’s allies dismiss the allegations as groundless.
When I met with Maina Kiai, the founder of the Kenyan National Commission on Human Rights, at a café, he told me that he feared that Kenyatta would start cutting back the reforms—including the freedom to oppose the rulers—that have changed the face of the country since the collapse of Moi’s one-party state in the early 1990s. “We can see them circling the wagons, telling foreign journalists to get out, saying that civil society is evil,” he told me. “We fear a crackdown.”
Kenyatta, meanwhile, flew back from the beach to prepare for his inauguration on April 9, in a stadium on the city’s outskirts, amid evidence that a diplomatic thaw had already begun. On March 30, following the Supreme Court decision, British Prime Minister David Cameron’s office issued a statement congratulating Kenyatta. The prime minister, the statement said, “looked forward to working with the President-elect’s new Government to build on [our] partnership, and to help realise the great potential of a united Kenya.” It was a telling shift from weeks earlier, when the British government stuck to a policy of no more than “essential contact” only with the men indicted by the ICC, and after Kenyatta’s victory on March 4, refused even to mention his name.
—April 10, 2013