Facing the law and not liking it: the Kenyan cases at the ICC

By NAI researcher Anders Sjögren

The judicial proceedings against four prominent Kenyan suspects accused of crimes against humanity, including murder, persecution and deportation or forcible transfer of people and in two cases also of rape and other inhumane acts, have now turned another corner. The just concluded status conference in the two cases against William Ruto and Joshua arap Sang, and Uhuru Kenyatta and Francis Muthaura respectively, held at the International Criminal Court in the Hague on 11 and 12 June, marked the end of the pre-trial phase. After two years of investigations, pre-trial hearings and various appeals, the stage is now (almost) set for the trials proper. The exact date of the trials is likely to be announced in July. However, in the wake of the status conference it is expected that they will start after March 2013 – which, significantly, will be after the next Kenyan presidential and parliamentary elections. These are currently scheduled for 4th March.

The road to trial has been long and winding, along which the main actors have travelled reluctantly. Both the government of Kenya and the accused have sought to delay and prevent the cases from coming to full trial, the former by lobbying the African Union and the United Nations Security Council to defer the cases related to Kenya, the latter by challenging the jurisdiction of the ICC. All these attempts have failed. Occasionally, and in a less than convincing stop-go fashion, the Kenyan government has proposed that it will take charge of all post-election violence cases, by proclaiming its intention to open several thousand cases. The capacity of key institutions such as the police, prosecution authorities and judiciary to conduct credible investigations and judicial processes is, however, widely viewed as limited. More importantly, their willingness to do so is even more in doubt. This is not surprising, as the police force was mentioned as being responsible for gross human rights violations during the post-election violence.

The reasons for the attempts at obstructing the process are obvious. The ICC factor has been a game-changer in Kenyan politics. For a long time, the cases have shaped most actors’ strategic considerations with regard to the 2013 elections. Both Ruto and Kenyatta, in 2007 on opposite sides but now politically united, have declared that they will run for the presidency, regardless of the ICC process. Their stance has been challenged on moral and legal grounds. Regarding the latter, there are different readings of the constitution, Ruto’s and Kenyatta’s supporters claiming that the chapter dealing with the ethics and integrity of public office holders covers only economic crimes. This matter is likely to be brought to court for constitutional interpretation.

Should they be prevented from standing, Kenyatta and Ruto will probably back one of the many candidates that constantly regroup into an uneasy and ever-changing coalition, the main (some would say only) aim of which is to block the current front-runner, Prime Minister Raila Odinga, from becoming president. Speculation is rife that should either Ruto or (far more likely) Kenyatta, or their chosen candidate become president, the two could easily refuse further cooperation with the ICC. Some of their supporters in and outside parliament have voiced opinions to that effect, and have sought to whip up popular support for the two on a mainly ethnic basis. Outside their respective core constituencies, however, there is solid support for the ICC process.

These observations should make it clear that Kenyan politics are highly polarised, and that the election is a do-or-die affair for the accused. In many ways, it is so for Kenya as a country too. Not only are the stakes and tensions raised to levels that threaten the integrity of the electoral process, immense pressure is being placed by the powers that be (essentially favouring Kenyatta) on both reforming-but-still-fragile institutions such as the judiciary and the independent electoral and boundaries commission, and on yet-to-be reformed ones such as the police and the provincial administration. A flawed process may result in a crisis similar to, or worse than, that of 2007-08. In a broader sense, the outcome of the election will determine the development trajectory of Kenya for many years to come. Should Ruto or Kenyatta, directly or by proxy, gain access to the presidency and then refuse to cooperate with the ICC, Kenya would become isolated, impunity would be rewarded, the new constitution would not be implemented and other much needed reform processes would grind to a halt.


Further reading

Human Rights Watch 2011, “Turning pebbles”. Evading Accountability for Post-Election Violence in Kenya. New York: Human Rights Watch.

International Crisis Group 2012, Kenya: Impact of the ICC Proceedings. Nairobi/Brussels: International Crisis Group

For information of the cases, see
www.icckenya.org

And for information on the political process in the aftermath of the 2007-08 crisis, see
http://www.dialoguekenya.org/

 

 

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