Kenyatta in State House: what's next for Kenya and the ICC?

As Kenyatta was sworn in as Kenya’s fourth president on April 9th, the question on everybody’s lips is whether the richest – and now most powerful – man in Kenya will keep his date with the International Criminal Court (ICC).   

If he does, human rights organisations will see it as a major victory for international justice – or even a paradigm shift where accountability principles finally circumvent realpolitik. For sure, having a sitting head of state in the dock would boost the ICC’s credibility to new levels, perhaps helping to overcome the perception that the Court’s powers go no further than to prosecute ousted dictators and rebel leaders who failed to secure backing in Washington and London.

Indications of non-cooperation

But even if Kenyatta has so far cooperated with the ICC and stated his intent to continue to do so, it seems increasingly uncertain that he will appear in The Hague on July 9th – the provisional trial date set by the court.

Of course, the important question of how exactly Kenyatta intends to attend trial hearings on a daily basis while discharging his responsibilities as president has never been answered. Should the Court rule favourably on a request filed by Kenyatta’s defence team that he be allowed to attend trial hearings via a video link from Nairobi, this could perhaps be the answer Kenyatta has been looking for. But the legal basis for such a ruling is unclear, and many will see a ‘Skype trial’ as a farce that could create precedence for suspects to virtually attend trial hearings but ignore uncomfortable verdicts.

Further, despite Kenyatta’s statements that he will continue to cooperate with the ICC, in the campaign period Kenyatta and his running mate – now Vice President – William Ruto, who also faces ICC charges, mobilised support around their ICC cases. Portraying the Court’s intervention as driven by political opponents in Kenya and former colonial powers, they created a slogan that the election was a ‘referendum against the ICC’.

Leaving aside the question of whether – as commentators such as Mahmood Mamdani argue – the ICC process in effect helped Kenyatta and Ruto gain power, it is noteworthy that the duo used the inauguration ceremony to imply that continued cooperation with the Court should no longer be taken for granted. Importantly, whereas Kenyatta has in the past been clear that Kenya will uphold its international obligations, in his inauguration speech he expressed clear reservations:

[F]or the last fifty years, Kenya has been one of the most engaged members and one of the most prolific co-authors of international treaties and instruments. I assure you again that under my leadership, Kenya will strive to uphold our international obligations, so longas these are founded on the well-established principles of mutual respect and reciprocity [emphasis added]. 

Might Kenyatta be aspiring to join the choir of African leaders, headed by Rwanda’s Paul Kagame and Sudan’s Omar al-Bashir, who outright dismisses the ICC, claiming it is a neo-imperialist institution aimed at undermining the sovereignty of African countries?

Whereas questions concerning how geo-politics inform the Court’s selection decisions are in principle warranted, it is interesting to note that back in 2009, the ‘don’t be vague, lets go to The Hague’ slogan was coined, not by Kenyatta and Ruto’s political opponents or former colonial powers, but by their own supporters in parliament as they rejected attempts to create a national accountability process, arguing that only the ICC could ensure fair and impartial justice.

Of course, Uganda’s President Yoweri Museveni – invited to make an official address on behalf of regional organisations – didn’t mention any of this, nor did he mention that the majority of Kenyans support the ICC process (though with some significant variations over time and place). Instead, he ‘saluted’ Kenyan voters for rejecting ICC ‘blackmail’ and offered a not so subtly disguised dig at the UK and other powers in the West when noting that the ‘usual opinionated and arrogant actors’ have ‘distorted the purpose’ of the ICC, using it to ‘install leaders of their choice in Africa and eliminate the ones they do not like’.

Consequences of a situation of non-cooperation

A no-show would obviously be a serious blow to a court that has spent years and enormous resources investigating the Kenya situation, but to what extent would it create complications for Kenya’s relations with international actors?

Prior to the elections, US Assistant Secretary of State for African Affairs, Johnnie Carson, infamously said that a Kenyatta win would have “consequences”. Likewise, the UK envoy to Kenya, Christian Turner, made it clear that the UK, in accordance with EU policies, only has “essential” contact with indicted ICC individuals (though in reality the relevant EU policy only requires that EU member states avoid ‘non-essential contacts’ with individuals subject to an ICC arrest warrant).

But as Kenyatta was elected, the UK no longer spoke about ICC indictments or ‘essential contact only’. Instead Prime Minister David Cameron congratulated Kenyatta on his victory and the British envoy attended Kenyatta’s swearing-in ceremony. Other European powers, including Germany and Italy, also relayed their congratulatory messages to Kenyatta, absent any indications of continued support for the ICC process. While the US, as the only major country, reminded the newly elected president of the ‘serious charges’ brought by the ICC, at the same time President Obama delivered a personal congratulatory message to Kenyatta through Ambassador Robert Godec, who also attended Kenyatta’s inauguration.

 Obviously, this change in attitudes reflects that other major interests are at stake. Kenya is actively fighting Islamic rebels in Somalia and Nairobi has established itself as the economic and diplomatic hub in East Africa. Regardless of how Kenya decides to deal with the ICC, China won’t have a problem doing business with Kenyatta. 

Still, if Kenyatta and Ruto simply decide not to show up for their trial, some state parties to the Rome Statute would feel forced to react. As a minimum, EU countries would have to avoid Kenyatta and Ruto entering their territories, as they would otherwise be forced to choose between arresting the suspects or blatantly violate their obligations under the Rome Statute. 

But aside from a travel ban, it is not self-evident that non-cooperation will have serious consequences for Kenyatta and Ruto. A possible decision not to cooperate with the ICC is likely to be closely coordinated with other African governments, something which could raise the stakes for those who might wish to impose sanctions. What is more, some think the UK might be pushing for a ‘soft approach’ due to its strong economic and historic ties with Kenya. Ultimately, this could lead to a split within the EU, where some countries may decide to limit their official contact and in other ways express condemnation of the Kenyatta regime, while others continue to engage substantially with Kenyatta.

Should major countries in the West choose to maintain close ties with Kenyatta despite his non-cooperation with the ICC, some might see it as a testimony of increased respect for the sovereignty of African states. For many others it would simply confirm the West’s hypocritical attitude towards Africa as well as the system of international justice.

The third option

Because of the above, some diplomats might feel more comfortable if Kenyatta avoids trial, not because he stays away, but because the process is terminated by the ICC itself. This is no longer an entirely remote option. 

A few weeks ago ICC chief prosecutor Fatou Bensouda dropped the charges against Kenyatta’s co-accused, former head of Kenya’s civil service Francis Muthaura. Although Bensouda maintains that the case against Kenyatta will proceed, it is worth noting that Muthaura and Kenyatta were alleged to have acted according to a ‘common plan’, making some question whether this plan can exist in the absence of a case against Muthaura. Further, the witness who effectively destroyed the case against Muthaura by admitting to having taken bribes and giving a false testimony has also been a key witness in the case against Kenyatta.

Despite Bensouda’s confidence that the case against Kenyatta will hold, for this and a number of other reasons it is not impossible that the Trial Chamber will act positively on a request filed by Kenyatta’s defence team to refer the confirmation of charges decision back to the Pre-Trial Chamber, which would delay the process for at least a year – or possibly bury it forever.

Further, to take the case forward, Bensouda needs to convince witnesses that their safety is guaranteed. In the past, witnesses have been bribed or intimidated to redact their testimony, or simply ‘disappeared’. These challenges are likely to become no less significant in the future – after all, Kenyatta is now in control of Kenya’s security apparatus. 

While foreign offices in the West may be tempted to conclude that a termination of the case on the ICC’s own initiative is the easiest way forward for everyone, those who have suffered from impunity in Kenya might think differently. Needless to say, any complicity in making Kenyatta’s case fall apart would undermine the long-term interest of building a credible system of international justice.

The views in the article are those of the author.