Kenya and the international court | One gone, another to go

The Economist
Nairobi, Kenya

(AFP)
(AFP)

When the International Criminal Court (ICC) at The Hague took on Uhuru Kenyatta, accusing him of crimes against humanity, it was meant to prove that it could pursue the most powerful perpetrators of crimes by bringing them to book in a global jurisdictions, if they were beyond the reach of justice in their own countries. So when the case against Kenya’s president in the ICC collapsed on December 5th, the repercussions for both court and country were bound to be far-reaching. The court has taken a big knock. But politics in Kenya may get nastier, too.

The international court’s chief prosecutor, Fatou Bensouda, withdrew the charges against Mr Kenyatta after the ICC’s judges had told her to produce hard evidence enabling the trial finally to begin—or to drop the case, after several previous postponements. In judicial terms, Mr Kenyatta is now in the clear.

The charges against him stemmed from tribal violence that tore through Kenya in the wake of elections at the end of 2007 that left at least 1,100 dead and more than half a million homeless in early 2008. Mr Kenyatta has always protested his innocence. When the case against him was finally dropped on December 5th, his supporters expressed their jubilation on Twitter, using the hashtag #Vindicated. “I am very keen to run to my wife right now and tell her what is happening,” Mr Kenyatta wrote in one post.

Ms Bensouda has blamed the intimidation of witnesses and a lack of co-operation by the Kenyan authorities, who failed to meet requests to provide bank statements, tax returns and mobile-phone data which, according to the prosecution’s team, would have helped build the case against Mr Kenyatta. Ms Bensouda’s predecessor, Luis Moreno Ocampo, who was responsible for Mr Kenyatta’s indictment in the first place, will also be blamed for failing—among other things—to gather enough evidence before the court issued its indictment and for failing to have witnesses protected. Since Mr Kenyatta’s indictment in 2011, his supporters, including senior members of Kenya’s government and judiciary, have sought to undermine the court at every level.

“The victims’ quest for justice has been cruelly frustrated, both in Kenya and at the ICC,” says Fergal Gaynor, an Irish lawyer who has headed the court’s unit in Kenya that has sought to address the victims’ grievances and has documented in shocking detail the atrocities committed in the aftermath of the poll. For the victims, justice is now more distant than ever.

The ICC took on the case only when the unity government that emerged after the election of 2007 acknowledged that its own justice system was unable to bring the perpetrators of the atrocities to book. It was Kofi Annan, a former secretary-general of the UN who mediated an end to the post-election violence and then urged the Kenyan government to let the ICC step in. No one has been charged in Kenya’s own courts with committing the atrocities.

Mr Kenyatta was one of six Kenyans initially named as suspects. Indictments against three of them, including the heads of the civil service and the police, were subsequently dropped. Now that the charges against Mr Kenyatta have also been dropped, two Kenyans are still facing trial: the deputy president, William Ruto, and a radio presenter, Joshua Sang, one of his boosters on the airwaves.

Messrs Kenyatta, a Kikuyu, and Ruto, a Kalenjin, were on opposing sides in 2007 but formed an alliance ahead of the vote in 2013. They bolstered their campaign by painting the ICC as a tool of the West and themselves as victims of a nefarious neo-colonial plot. Since winning the election together, they have relentlessly tried to rubbish the court.

It was an alliance of pure pragmatism. Now that Mr Kenyatta is off the hook, there are concerns that the ruling coalition may not hold, since there is a chance Mr Ruto may yet be convicted. The Kikuyu and Kalenjin communities in the Rift Valley, where some of the worst violence took place in early 2008, have enjoyed a fragile accommodation with each other, as their leaders have been running the country together. But if Mr Ruto were to be forced out of office as a result of an ICC verdict against him, ethnic tension could boil over again.

As for the ICC, representatives of the 139 states that have signed up to its statute gathered in New York on December 8th for the court’s annual week-long meeting, hoping to put the Kenyatta case behind them. But accusations in some African leaders’ circles that the court is biased against Africans will linger. Of the 30-odd people indicted by the court since it began to operate in 2002, all have so far been African, including three past or present heads of state. The Ivory Coast’s Laurent Gbagbo is still awaiting trial in The Hague, while Sudan’s incumbent president, Omar al-Bashir, still cocks a snook at the court by travelling abroad as a free man, even to countries that are ICC members.

Meanwhile, the court will stress its colour-blind credentials, reminding its critics that investigations are under way outside Africa, for instance in Afghanistan, Columbia, Georgia, Honduras, Iraq and Ukraine, and that many of its senior staff, including its chief prosecutor and the president of the assembly of states meeting in New York, are African. It will also note that five of the eight current sets of cases were referred to the court by African governments themselves, while two were passed to it by the UN Security Council.

In global terms, Mr Kenyatta may now re-engage more warmly with Western governments, particularly the American and British ones, which regard Nairobi as a counter-terrorist hub yet have felt awkward co-operating with Kenya because of the ICC’s case against its president.