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Kenya, Uhuru Kenyatta and politicising the International Criminal Court

Kenyan president Uhuru Kenyatta and his deputy William Ruto are currently facing crimes against humanity charges at the Hague-based International Criminal Court (ICC). The charges result from the post-election…

Kenyan president Uhuru Kenyatta is currently facing crimes against humanity charges at the International Criminal Court. EPA/Daniel Irungu

Kenyan president Uhuru Kenyatta and his deputy William Ruto are currently facing crimes against humanity charges at the Hague-based International Criminal Court (ICC).

The charges result from the post-election violence in early 2008 where over 1300 Kenyans died and 600,000 were injured or displaced. Yet the pair have done everything to politicise these charges in Kenya and at the African Union.

Ruto, an ethnic Kalenjin, has been accused of planning and organising crimes against members of the Kikuyu community - Kenya’s largest ethnic group. A judicial investigation into the violence, the 2009 Waki Commission report stated that:

…the incident which captured the attention of both Kenyans and the world was the deliberate burning alive of mostly Kikuyu women and children huddled together in a church.

It is claimed that Ruto was involved in the incident, which took place in January 2008.

Kenyatta, a Kikuyu and the richest person in East Africa, is accused of planning and organising crimes against members of the Kalenjin and Luo ethnic communities.

Ruto has persuaded the ICC to move his trial from May 28 to a new date to be determined. Kenyatta’s trial is slated to start on July 9. Both leaders have stated that they respect international law and will cooperate with the ICC.

These cases have not only divided the Kenyan community, but they have also pitted the African Union against the rest of the world and threatened to complicate Kenya’s previously close diplomatic relations with Western countries.

Even before Kenyatta and Ruto were elected to Kenya’s top offices on March 4 this year, the uncertainty about their cases had been compounded by the Kenyan government’s mixed signals. These included: half-hearted cooperation with the ICC, legal challenges to the ICC’s legitimacy to handle the cases, futile appeals to the UN Security Council to intervene and diplomatic efforts to undermine the ICC in Africa.

Kenyatta and Ruto’s political coalition - dubbed the “Jubilee Alliance” - was crafted as an anti-ICC vehicle. The duo, who acknowledged that their election to power would complicate Kenya’s international matters, initially sought to draft then-deputy prime minister Musalia Mudavadi to be a flag bearer for their party. However, a week later, Kenyatta made an about-turn and announced that “dark forces” had compelled him to resume the leadership of his party, with Ruto as his running mate.

Kenyans are divided over these cases along the lines of those who support the Hague process and those who believe a national tribunal should be established to handle them. Those who support the ICC believe Kenya does not have the resources to manage these cases. Ironically, Kenyatta and Ruto were the strongest supporters of the ICC in 2009 when they joined other MPs to derail legislative efforts to establish a national tribunal.

Kenyan deputy president William Ruto faces charges of ethnic violence after the country’s 2007 elections. EPA/Lex van Lieshout

Since being named as suspects in December 2010, Kenyatta and Ruto have changed tune and called for a national tribunal. They have claimed that the ICC is a foreign institution which undermines Kenya’s sovereignty. The duo exploited this theme successfully in this year’s election campaigns by portraying their main rival, former prime minister Raila Odinga, as a supporter of the ICC.

Yet parliamentary records show that Odinga argued strongly for a national tribunal in 2009 and was defeated by the duo and their supporters, with Ruto claiming:

Don’t be vague. Let’s go to the Hague.

But even Kenyans who support the Hague process are not united. Some of them believe the case should be deferred indefinitely until Kenyatta’s presidency is over, while others counter that such a deferral would amount to a denial of justice.

Previously, the Kenyan government has sought to use the African Union to frustrate the ICC. On May 23, the African Union foreign ministers passed a resolution calling on the ICC to drop charges against Kenyatta and Ruto and 53 African presidents (with the exception of Botswana’s) endorsed this resolution on May 27.

Despite such calls by the African Union, there are no African legal institutions equipped to handle these cases. The African Court on Human and People’s Rights does not have the capacity to handle these cases.

Kenya has also not formally applied for the transfer of these cases, and even if it did, there are no procedures that would make this possible.

Nonetheless, these cases hanging over Kenyatta and Ruto could complicate Kenya’s diplomatic relations with Western governments.

Isolating Kenya might not only complicate Western strategies against terrorism in the region (particularly in Somalia), but it could also undermine the road to economic prosperity for several states in the region, including South Sudan, Uganda, Tanzania, Rwanda and Burundi.

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7 Comments sorted by

  1. James k

    Program Manager

    A point of correction, President Uhuru Kenyatta said the "dark forces" were pushing him to relinguish leadership of the coallation and pave way for Mr Mudavadi who was favoured by the establishment. The supporters of Uhuru and Ruto felt the charges were political as the people who were candidates for the disputed elections were never called to account and selection of people to charge seemed crafted politically where equal number from each side was indicated, and when confirmation at the pre-trial ended, one person from each side was freed to keep the balance.

    1. Samuel M. Makinda

      Professor of Security Studies at Murdoch University

      In reply to James k

      Thanks for your comments, James. The main point of my article was to explain how the ICC charges against Uhuru and Ruto have been politicised by both the suspects and the Kenyan government. The second point was to show that had Uhuru and Ruto decided to support the creation of a national tribunal in 2009, the ICC would not be prosecuting them. The third point was to suggest that Uhuru and Ruto were happy to support the ICC process as long as it prosecuted other Kenyans but themselves. So, the claim that the ICC is a foreign institution that undermines Kenya's sovereignty has been made largely because these two people have been indicted. Having said this, I don't believe that Uhuru and Ruto will have a chance to clear their names. I suspect the Kenyan witnesses might pull out and thereby compel the ICC to discontinue the cases against the duo.

    2. Njomo Arap Simiti

      Rights Activist

      In reply to James k

      That is a point of confusion and not correction. You are adding politics to this. Investigations were conducted and THE MOST RESPONSIBLE - for the crimes - were identified and chares upheld against them. If you got any evidence against other persons, please pass it on to the CIA, FBI, CID, KBS, KBC, AIC, WTF and wherever else you think is relevant. Otherwise we can all come with our own narratives.... blah blah blah

  2. Nikola Pijovic

    PhD Candidate, Political Science at Australian National University

    Former US assistant secretary of state for African Affairs Jendayi Frazer said after the election (on Al Jazeera's Inside Story) that the ICC process is a geopolitically motivated one, and that the case against Uhuru Kenyatta is based on hear-say.

    Well as someone well acquainted with the cases against Slobodan Milosevic and other high profile ICTY defendants I can say that most of these high-profile cases are based…

    Read more
    1. Samuel M. Makinda

      Professor of Security Studies at Murdoch University

      In reply to Nikola Pijovic

      Thanks for your comments, Nick. It is true that much of the evidence at the ICC and similar tribunals is based on hearsay and the witness protection system has been questioned by some analysts. On the claims by former US Assistant Secretary of State for Africa, Jendayi Fraser, I would agree that she said nothing that would be considered new. Why she said what she said, I have no idea. As far as I am concerned, Uhuru and Ruto are innocent until proved guilty. Indeed, as I have pointed out in response to another critic of my article, I suspect that Uhuru and Ruto might not have a chance to be tried because witnesses might withdraw and thereby compel the ICC to discontinue their cases.

    2. Njomo Arap Simiti

      Rights Activist

      In reply to Nikola Pijovic

      Jendayi Frazer is a " hired and paid" hand. She spews words written by Njomo's PR team in the UK. Uhuru Muigai has a team of UK PR operatives. They formed the TNA party and came up with the slogan " TNA I believe". They also came up with the dove symbol and the anti-West slogans that Kikuyus are singing today. All coined in the UK. This particular UK PR firm has hired Jendayi Frazer to spew hatred, controversy and sing songs praising dictators in Africa, butchers, plunderers of public wealth and looters of public coffers

  3. Njomo Arap Simiti

    Rights Activist

    Point of correction. Uhuru Njomo Muigai and William Kipchirchir Samoei did not win the elections. They were outrightly rigged in. This whole election was a sham that was carefully crafted..... we vote then, no matter the outcome, Njomo and Kipchirchir are announced winners. So I hope they get locked up somewhere for their heinous crimes