ICC Rift with Africa Growing in Pursuit of Kenyatta

On Saturday, March 9, 2013, Uhuru Kenyatta, Kenya’s richest man and son of the country’s founding president won the presidential election of Kenya and prepared to take the highest office in the nation. However, amid the success of achieving such a high rank ucertainty loomed. This is because Kenyatta was indicted by the International Criminal Court (ICC) in 2011 for his role in the post-election violence that took place in Kenya following the 2007 presidential election. In the clashes, 1,200 people perished and more than 500,000 fled their homes. Despite his fervent denial, the list of charges that Mr. Kenyatta faces at the ICC include murder, forcible transfer, rape, persecution and other inhumane acts listed as crimes against humanity. While Kenyatta is not accused of carrying out these atrocities on his own, his is accused of inciting and funding these actions and promoting an environment of violence as supporters of former president Mwai Kibaki and his rival Raila Odinga clashed over accusations of a rigged election in favor of Kibaki.

Now, six years after the election violence occured and Kenyatta has been elected as Kibaki’s successor. Since the charges still stand, he becomes the second African head-of-state to be indicted by the ICC. The other, Omar al-Bashir of Sudan has failed to cooperate with the court and continues to run the country unabated. While Sudan is not a signatory state to the Rome Statute — the treaty that governs the ICC — many of the countries that he travels to for governmental business are and are therefore obligated under the treaty to arrest any fugitives of the court. This is where the court’s diminishing relationship with African leaders has put a division between itself and the continent and why the Kenyatta case is so crucial for both sides.

When the Rome Statute was devised, the African continent emerged as the court’s biggest initial supporter carrying the most ratifications of any continent or region since the onset. However, since every indictment and every situation presented before the court has been against Africans in African nations, the growing opinion is that the ICC maintains an African bias, which has created a rift between the continent and the court. This has prompted the African Union (AU) to take special steps to help maintain state sovereignty against the court.

In 2009, the AU united to author a resolution stating that they would not cooperate with the ICC in regards to the al-Bashir case. They were ignored on a request to the court to defer al-Bashir’s indictment, which prompted the move. This set a precedent of the growing division between the court and Africa. Now, with the fervent pursuit of Kenyatta, leaders across the continent are uniting against the ICC.

At the inauguration for Kenyatta in April, Ugandan President Yoweri Museveni took a bold stand during a speech he gave on behalf of regional organizations. First, he saluted Kenyan voters for rejecting the ICC “blackmail.” Then he took a shot at Western countries, indicating that they utilize the ICC as a tool to “install leaders of their choice in Africa and eliminate the ones they do not like.”

With the case against Kenyatta becoming increasingly contentious across the continent and in the courtroom, the trial figures to be a highly debated event. Kenyatta’s deputy president, William Ruto, is his co-defendent, placing two of Kenya’s highest ranking leaders before the court. From the onset Kenyatta and Ruto have maintained their  innocence.  And many feel that the prosecutor’s case is unraveling.

In March 2013, charges were dropped against a Kenyatta co-defendent, Francis Muthaura. While this remains a setback for the Office of the Prosecutor, the two men were alleged to be acting on a “common plan” to insight unrest. With Muthaura’s charges being dropped, some have questioned whether the case against Kenyatta can proceed. In addition, the charges against Muthaura were dropped when a key witness admitted to taking bribes and offering false testimony against Muthaura. This same witness remains a key witness in the Kenyatta case.

Another factor which may result in the case’s dismissal is the protection of witnesses in the case. Many witnesses have been intimidated and some have simply “disappeared” causing a feeling of reluctance for witnesses to come forward as they fear for their safety. This feeling is no doubt compounded now that the defendents are the most powerful men in the country. Although the ICC has described the level of interference in the Kenya case as “unprecedented,” this tactic may inevitably end up benefiting the defendents and leading to dropped charges.

In addition, one of the judges on the case — Judge Wyngaert of Belgium — has already withdrawn, questioning the legitimacy of the investigation against Kenyatta and Ruto, claiming that the Office of the Prosecutor failed to properly investigate the case.  Judge Wyngaert also accused the prosecutor of failing to respect the rights of the accused by presenting late evidence without proper disclosure. This is just one more blow to the prosecutor’s case.

The case against Kenyatta and Ruto seems to grow weaker by the day and it is certainly exposing some of the disconnect between the prosecutor and the judges within the ICC, a pattern that has become evident since the first and only successful case against Thomas Lubanga.  While the reports of witnesses disappearing and that fact that others are hesitant to come forward for fear of their safety is indeed disturbing, this is just another example of what a daunting task the ICC possesses within the confines of its mandate, without the support of some of the more powerful countries on earth.

Finally, the Office of the Prosecutor must realize that despite Kenyatta’s promise to fully cooperate with the court, if the trial continues and Kenyatta is found guilty, he may simply choose to ignore the ruling and avoid traveling to places where he could be detained. With the precedent of the resolution by the AU, Kenyatta would theoretically be able to travel throughout Africa without fearing an arrest. Also, Kenya is the site of a lot of Western investment and the geopolitical game in Africa is very real. If the U.S. or the UK decided to not deal with Kenyatta because of the guilty verdict, he could easily turn wholly to China, something neither country wants.

In the end this is another case that unfortunately reeks of desperation from the prosecutor. Continued mismanagement of evidence has led to one dismissal and the cases against Ruto and Kenyatta seem to be equally as fragile.  The problem that remains is how many more crushing setbacks can the ICC take before the world deems this experiment a failure?