Beth Mugo: How Uhuru ICC case shook the Kenyatta family and changed me

More than 1,000 Kenyans were reported killed, 300,000-plus displaced and around 42,000 homes and businesses looted or destroyed. A significant number of cases of sexual violence were also reported, according to the Office of the UN High Commissioner for Human Rights.

The results of the presidential election held on December 27, 2007 were bitterly disputed by the Orange Democratic Movement (ODM), an opposition political party led by Raila Amolo Odinga, who had bolted out of government buoyed by the successful “No Campaign” he led against Kenya’s proposed Constitution in a referendum on November 21, 2005.

I had joined President Mwai Kibaki and many other government officials in campaigning for a “Yes” vote. We travelled the length and breadth of the country to persuade Kenyans to vote for the proposed charter intended to replace the Independence Constitution in use since 1963.

The opposing team won 58 per cent of the six million votes cast, translating to 3.5 million votes, against 2.5 million for the “Yes” camp, a larger gap than I had anticipated. In Nairobi, Dagorretti was the only constituency that delivered the “Yes” vote.

The national referendum campaign literally split the National Rainbow Coalition (NARC), an alliance that brought President Kibaki to power, deepened ethnic tensions and ignited unrest in some areas.

As a result, the President sacked his entire Cabinet on November 23, 2005, two days after the draft Constitution he supported was rejected. I was at the time an assistant minister for Basic Education but was lucky to continue serving in the re-organised government, announced two weeks thereafter and dubbed Government of National Unity.

Read: How Kalonzo and Uhuru plotted to stop Raila

The disenchanted members of NARC, who had fallen out with the Kibaki government formed ODM. The outfit coalesced into a powerful political outfit led by Mr Odinga, Musalia Mudavadi, Uhuru Kenyatta, Kalonzo Musyoka, Najib Balala, William Ruto, and Joseph Nyagah. Remnants of NARC and a collection of other parties formed the Party of National Unity (PNU) under the leadership of Mwai Kibaki and drew support from the Mt Kenya region, while ODM fashioned itself as a multi-ethnic alliance of mainly the Luo, Luhya, Kalenjin, Maasai and coastal groups.

In the run-up to the 2007 General Election, Musyoka formed a splinter group, ODM Kenya, with Prof Julia Ojiambo as his running mate, while KANU leader Uhuru Kenyatta opted to support President Kibaki’s PNU.

ODM Kenya drew exclusive support from the Kamba ethnic group.  It was, therefore, a tense General Election, and many in our wing faced a possible electoral loss after the Electoral Commission of Kenya results indicated that ODM was leading with more than one million votes. Later, votes from the PNU strongholds began closing the gap. Tension started building and I got worried when fierce exchange of words between opposing political players was broadcast.

Electoral Commission of Kenya (ECK) chairman, Samuel Kivuitu, was losing his grip of the process, and soon after, security officers from the General Service Unit walked in to restore order. This was largely because of delays in tabulation of presidential votes between December 28 and 30, 2007.There was palpable tension across the country as people were anxious to know who had won.

At the time, it had been announced that ODM had won 99 out of 210 seats against PNU’s 43 in the parliamentary contest. More than half of the members of President Kibaki’s Cabinet had lost their seats. I was among the few who survived the ODM onslaught in Nairobi, Kenya’s capital, warding-off stiff competition from ODM’s John Kiarie for the Dagoretti Constituency seat. But my triumphant mood soon dissipated with the inordinate delays at KICC [Kenyatta International Convention Centre] in announcing presidential vote in many constituencies.

Read: The night in 2007 when Kibaki almost threw in towel

PNU was eventually declared the winner of the presidential elections by Kivuitu, who was the national returning officer and President Kibaki sworn in for a second five-year term in a closed ceremony at State House on December 30, 2007, late in the evening, just an hour after he was declared to have garnered 4.5 million votes, beating Odinga by slightly more than 200,000 votes.

The result of the 2007 electoral process that was originally praised the world over quickly turned into an ugly chaos after violence broke out at the national tallying centre at the KICC in Nairobi. Kibaki had 4,584,721 votes against Raila’s 4,352,993, and later Kivuitu curiously made disturbing statements, including one that he had been forced to announce the results.

Odinga, the presidential candidate of ODM, not only disputed the results but also refused to concede defeat. He did not go to court as Opposition supporters took to the streets to protest, especially in the slum areas of Nairobi, Mombasa and Kisumu.

In Dagoretti, my main opponent in the general election, John Kiarie, who ran on an ODM ticket, challenged my re-election as Member of Parliament for Dagoretti Constituency in court, but it was upheld in a ruling delivered by Justice Luka Kimaru on September 12, 2008.

Prof Githu Muigai and Mr Muthomi represented me in the case, where the OCPD Kilimani Police Station, Herbert Khaemba and both the ECK Returning Officer Sammy Kimemia Njuguna and his assistant, Ruth Kwamboka Nchogu, testified. Much more was happening at the national level and in the regions. Because President Kibaki’s side was suspected to have rigged the vote count, a wave of what looked like organised attacks targeting non-Kalenjin communities perceived as supporting PNU, including the Kikuyu, Kisii and Luhya, was reported in the Rift Valley. In retaliation, gangs of Kikuyu youths attacked non-Kikuyu groups in Nakuru, Naivasha and Mathare area of Nairobi.

Three days into the violence, Desmond Tutu, South African Anglican Archbishop, offered to mediate the talks under the umbrella of the All Africa Conference of Churches to co-augment the efforts of the Concerned Citizens for Peace, a lobby of eminent Kenyans led by Ambassador Bethwel Kiplagat, Kenya’s former envoy to Paris and London, and Lieutenant-General Lazarus Sumbeiywo, former army commander and mediator of the South Sudan peace process. Unfortunately, both sides of the conflict were less trusting of the efforts and appeared reluctant to cede ground during the delicate negotiations, thanks to the hardline stances taken by some of their lieutenants.

However, Archbishop Tutu used his moral persuasion to induce the parties to accept international mediation. He pressed ODM to accept mediation in a meeting held on January 3, 2008. Odinga yielded.

Simultaneous diplomatic efforts by then US Secretary of State, Condoleezza Rice, and British Foreign Secretary, David Milliband, as well as the African Union pushed the government side to the negotiation table. They preached “compromise” and urged political leaders to “put the democratic interests of Kenya first” to end the violence and restore stability.

Then British Prime Minister Gordon Brown and Ghana’s President John Kufour were also instrumental, proposing former UN Secretary-General Kofi Annan and former Sierra Leonean President Ahmad Tejan Kabah as mediators.

President Kibaki and Odinga appointed their teams to the mediation panel. Kibaki’s team comprised seasoned legal minds and administrators, namely then Justice Minister Martha Karua, ODM-K Secretary-General Mutula Kilonzo and then Minister for Foreign Affairs Moses Wetang’ula. Former Vice-President Musalia Mudavadi, former Head of Public Service and Aldai MP, Sally Kosgei, former Ugenya MP James Orengo and Eldoret North MP (sworn in as President of Kenya in 2022), William Ruto represented ODM in the mediation.

The PNU side of the debate accepted Annan as lead mediator.

The panel he led delivered on their goal of restoring peace in the country. Benjamin Mkapa, then immediate former President of Tanzania, was familiar with the principal parties due to his country’s proximity to Kenya, making it easier to earn their respect. Graca Machel lent her feminine stamina, experience of conflict in her native Mozambique and solid international reputation having been the driver of the New Partnership for Africa’s Development, a continent-wide peer review effort, to the mediation. Her smile is disarming even to the most hardened of hearts.

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I raised a concern with senior government officials that the close proximity of the negotiation venue to Nairobi’s city centre made it easy for politicians and other interested parties to access the panellists, thus making it difficult to conclude the talks faster. Leakage of information also concerned some leaders. Therefore, the move to take the talks to Kilaguni in Tsavo National Park was important in expediting the negotiations, a fact that made Annan express optimism that a deal could be struck within 48 to 72 hours.

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After a series of mediated talks, the National Accord (Peace and Reconciliation Act) was enacted and this is what paved the way for the establishment of the Grand Coalition Government. Kibaki remained the President while Odinga became the Prime Minister.

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Kibaki and Odinga shook hands at the footsteps of Harambee House, well known as the Office of the President (OP), in Nairobi.

A government was formed and I was named Minister for Public Health and Sanitation. Kalonzo Musyoka was named Vice-President and Minister for Home Affairs, while Musalia Mudavadi (also Minister for Local Government) and my cousin, Uhuru Kenyatta (also Minister for Trade) were named deputy prime ministers.

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Not so long after we had settled into our jobs, and government was running smoothly, something happened that tormented me and my family. Louis Moreno Ocampo, the ICC (International Criminal Court) prosecutor, opened an envelope on December 15, 2010, revealing names of persons, he claimed, bore greater responsibility in the 2007/2008 post-election violence.

PNU MPs were in a meeting at Norfolk Hotel, Nairobi, when Ocampo opened his envelope. We had suspected the names would be made public but didn’t expect anyone in our camp to be on the list. We believed ODM bore greater responsibility for the violence.

Head of Public Service Ambassador Francis Muthaura, Deputy Prime Minister Uhuru Kenyatta, Agriculture Minister William Ruto, Commissioner of Police, Major General Hussein Ali, Industrialisation Minister, Henry Kosgey and Radio broadcaster, Joshua Sang were named.

Ocampo accused the six of crimes against humanity, including murder, forcible transfer of population and persecution. They were summoned to appear before ICC’s Pre-Trial Chamber II judges Ekaterina Trendafilova, Cuno Tarfusser and Hans-Peter Kaul.

When they finally appeared before the Court, Hussein Ali and Henry Kosgey were dropped from the ‘Ocampo Six’ list. Kenyatta, Ruto, Muthaura and Sang were committed to trial for crimes against humanity. This caused us so much agony. At a personal level, I had worked closely and knew Uhuru Kenyatta and Francis Muthaura as patriots. They were good people who had committed their lives to public service, a task they executed with dignity and honour. I trusted and vouched for them.

Following the naming, President Kibaki dispatched Kalonzo Musyoka, his Vice-President, on a shuttle diplomacy to several African and Western capitals to persuade nations to support deferral of the ICC cases to protect Kenya’s sovereignty and dignity and ensure proper investigations are done.

I did not expect the ICC process to involve Uhuru. I knew he was a peace-maker and had gone around Kiambu, all the way to Wangige to preach peace together with Lewis Nguyai. And so, when Ocampo mentioned his name, I was jolted. I was sad. I, therefore, went to his house to encourage and assure him that I would stand with him. He took it calmly because he knew he was innocent. Little did I know they were trying to balance both sides in the case.

Twice, I travelled to The Hague to support my cousin, Uhuru. It brought back the memories of what my uncle, Jomo Kenyatta, Uhuru’s father, went through fighting for Independence. Mama Ngina was emotional and so was I. It was sad watching her son going through a similar experience she and her husband went through fighting for freedom of this country. Her faith in God gave her strength. Uhuru and Ruto resorted to prayer before and after their confirmation hearings in the Hague. At one such prayer rally in Gatundu, attended by many political leaders, including Vice President Kalonzo Musyoka, Mama Ngina climbed the podium and held her son in an emotional embrace, blessed the two leaders and sprinkled holy water on their faces to bless them.

Earlier, my brother, Ngengi Muigai, had worked up the crowd, saying “the white man came and took Jomo Kenyatta away for seven years, now they want to come for his son.” The speech, delivered in Kikuyu language, his mother-tongue, struck an emotional tone that galvanised the people behind Uhuru.

Read: ICC: Uhuru testifies on role in Kenya poll chaos

Meanwhile, the haggling over prosecution of perpetrators of post-election violence occupied significant space in the media prior to naming of the Ocampo suspects. In Parliament, there was intense debate on whether to establish a local tribunal, modelled along the Arusha Tribunal of the ICC, which investigated and prosecuted perpetrators of the 1994 Rwanda massacre. The political elite were uncomfortable with this proposal, seeing it as an attempt to fix political opponents and lock them out of the 2013 elections.

Both camps also believed their opponents bore maximum responsibility and would survive the ICC dragnet. ODM thought PNU leadership would be indicted, a situation that would enable them ascend to power, while the PNU wing believed ODM leadership would be the one to go to the Hague, hence the phrase, “Don’t be vague, go to the Hague.” A series of prayer rallies, where messages of peace and unity were preached propelled Uhuru and Ruto to power in 2013 under the Jubilee coalition ticket of The National Alliance (TNA) and United Republican Party (URP).Odinga’s [Coalition for Reforms and Development] that brought together Raila’s ODM, Kalonzo Musyoka’s Wiper Party and Ford Kenya’s Moses Wetang’ula lost the elections. Uhuru became fourth President of Kenya and Ruto the Deputy President.

Fatou Bensouda, who succeeded Moreno Ocampo as the ICC prosecutor, dropped the cases, saying they lacked enough evidence to support prosecution following a series of withdrawals of witnesses from the case.

The experience of the 2007/2008 PEV and subsequent pain of having a relative appear before the ICC re-energised me to champion and support peace efforts across the country. Political and ethnic tensions resulting from a flawed electoral process took Kenya to the edge of a cliff such that any delayed intervention would have made the country tip over.

I have since worked with eminent personalities such as former Karachuonyo MP and first African president of Maendeleo Ya Wanawake Organisation (MYWO), Phoebe Asiyo, former chairperson of MYWO Zipporah Kittony, University of Nairobi don, Prof Wanjiku Kabira, former chair of the Kenya Association of Manufacturers, Betty Maina, renowned athlete Tegla Loroupe and former MYWO chairperson, Jane Kiano, all Kenyan members of the Women Situation Room, a peace building mechanism, introduced by Yvette Cesson-Wureh, the co-ordinator of Liberia-based NGO, Angie Brooks International Centre that helps women to be the leading force for democratic and peaceful elections. I also hosted UN and Africa's foremost peacemaker Kofi Annan for dinner at my residence in Nairobi.

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