Originally Published 2013-09-19 04:31:29 Published on Sep 19, 2013
Given Kenya's recent diplomatic, financial and trade advancements in the international community, observers anxiously await the verdict in the trials of President Uhuru Kenyatta and Deputy President William Ruto at The Hague and the reactions of Kenyans to it.
Trials of Kenyan President, D-P, at The Hague
" Kenya's Deputy President William Ruto entered a plea of not guilty to charges of Crimes Against Humanity at The Hague on September 10, 2013. Kenya's President Uhuru Kenyatta is expected to take the same plea when his trial begins in November. Both Ruto and Kenyatta have been accused of being criminally responsible for murder, forcible transfer, persecution; Kenyatta is further charged with criminal responsibility for rape and 'other inhumane acts'1 . Both men stand on trial for their roles in the post-election violence following Kenya's 2007 presidential elections. In reaction to both its President and Deputy President simultaneously on trial at The International Criminal Court (ICC, also known by its offices at The Hague), the Kenyan Parliament has initiated a withdrawal from the ICC, a global first. Given Kenya's recent diplomatic, financial, and trade advancements in the international community, observers anxiously await both the trials' verdicts and Kenyans' reactions.

The two leaders are at the ICC for events that occurred after the 2007 elections. On December 27, 2007, Kenya held a general election that, by all accounts, was expected to be legitimate. The preceding years' elections had been relatively free and fair, and Kenya had not experienced extreme political violence since early years of independence. The two largest and front-running parties were the Party of National Unity (PNU), and the Orange Democratic Movement (ODM). The PNU candidate was Mwai Kibaki of the Kikuyu tribe and then- incumbent President while the ODM candidate was Raila Odinga of the Luo tribe; together they represented respectively the two largest ethnic groups in Kenya. Polling showed the two politicians were closely matched, with Odinga just slightly pulling ahead. In the days that proceeded, something went askew. Despite both the opposition and international election observers insisting the elections were invalid, Mwai Kibaki was declared the winner by the Election Commission of Kenya on December 30th, and was sworn into Office later that night. Within an hour, rioting began in Nairobi's largest slum Kibera. Thereafter unexpected, bloody violence spread and continued for six weeks, resulting in 1,333 deaths, 3,561 injuries, and over 300,000 people displaced from their homes. The mayhem only ceased on February 28th 2008 when, under the mediation of Kofi Annan, Kibaki and Odinga signed the National Accord and Reconciliation Act that created a power-sharing agreement between the two and ordered an official inquiry into the origins of the violence.

The resulting inquiring body was quickly formed and called the Commission of Inquiry into Post-Election Violence (CIPEV), or informally the Waki Commission. Conducting investigations throughout the spring of 2008, the Commission found that violence was '?spontaneous in some geographic areas and a result of planning and organization in other areas, often with the involvement of politicians and business leaders' 2. A U.N. Fact-finding Mission in February 2008 was more specific. It said violence came in three forms. The first was the looting of shops and homes instigated by youths in slums in Nairobi and Kiumu, generally random and spontaneous, and was an initial wave of violence after the election results were announced. The second type was organised, targeted violence towards Kikuyu farmers and landowners in the already politically-tense Rift Valley, and came in the days and weeks that followed the election. The third wave of violence was largely retaliatory, targeted ethnic minorities and migrant workers in Nakuru, Naivasha, Central Province and in the slums of Nairobi, and was carried out by pro-Government (PNU) militia groups. These and other reports found that some of the violence was organised and targeted, that the media and the judicial branch were used to implicitly spur on ethnic tension and attacks, and that the local police were either entirely overwhelmed or passively complacent with the aggression.

The CIPEV recommended the establishment of special tribunal to prosecute those responsible for the attacks. The Kenyan government was given until September 30th to create a prosecuting mechanism; when the government failed to meet the deadline, the CIPEV sent their recommendations to the ICC as per the agreements reached in the National Accord and Reconciliation Act. After getting the consent of various political leaders in Kenya, then- Prosecutor of the ICC Luis Moreno-Ocampo officially launched an investigation in 2009. In 2010, six Kenyans who were found to be most responsible for clashes were summoned to appear before the Court for preliminary proceedings. In 2011, two cases were filed against four individuals for committing crimes against humanity: the first against then- ODM MP William Ruto and then- radio host Joshua Sang for their roles in inciting murder and other violence in the Rift Valley against Kikuyus. The second case was against politician Uhuru Kenyatta and then- Cabinet Secretary Francis Muthaura3 for inciting murder and other violence against ODM supporters.

In the years that passed between the violent elections and the ICC indictments, the domestic politics of Kenya changed. The ICC charges against Kenyatta and Ruto shot the two politicians to mass popularity and facilitated the cooperative Jubilee Alliance between their parties. In 2012 despite being named in active ICC investigations, Kenyatta and Ruto announced their intentions to run for offices in the 2013 general elections. In March 2013, Kenyatta won the seat of the presidency and Ruto won the Deputy Presidency position. On September 10th 2013, The Hague began its trial against Ruto and Sang.

When Kenyatta and Ruto took office, Kenyan parliament began discussions on a withdrawal from the ICC. This threat has been met with approval from many leaders of the African Union (AU) member-states. Other commentators both African and otherwise have accused the ICC as pursuing a neo-colonialist agenda and being a tool of the West. Their criticisms are not without reason -Kenya's is one of the seven on-going ICC cases, all of which are against Africans4 . Whereas war criminals from the former Yugoslavia, Lebanon, and Cambodia were prosecuted in special Tribunals in their home countries5 , only Africans thus far have stood trial under the jurisdiction of the ICC. Only an African, former Congolese warlord Thomas Lubanga, has been convicted by the Court. If one were to look at the decisions of the ICC without context, the accusations of a racial, neo-imperialist bias would be reasonable.

In May 2013, the Kenyan ambassador to the UN urged the Security Council to dismiss the charges against the Kenyatta, citing the region's need for a strong Kenyan executive branch. The ambassador reasoned the Kenya's security would be highly compromised if both the President and the Deputy President were simultaneously standing trial in a foreign country. In the weeks preceding the trial, Ruto threatened to bring dozens of Kenyan MPs with him to show his countrymen's protest. Other AU leaders have voiced their support of Kenyan withdrawal from the ICC, and various polls show an overall disproval of the ICC within Sub-Saharan Africa.

In truth, criticisms of the ICC are political at best and indicative of a misunderstanding of ICC proceedings at worst. The ICC Charter mandates cases may only be brought forth under specific circumstances - upon the request of the UN Security Council as in the Sudan and Libya cases, on the request of a member-country as in the cases of the Democratic Republic of Congo, Uganda, Mali, and the Central African Republic, or if an ICC member is unable or unwilling to prosecute its war criminals as in the case of the Cote d'Ivoire. The ICC assumed responsibility of prosecuting those in Kenya after the Kenyan national government was unable to create its own judicial body to indict those responsible for the 2007 violence by the September 2008 deadline.

Are Kenyatta and Ruto wrongly using their popularity to fight their indictments at the ICC? Some scholars and civic societies believe that the threat of prosecution at The Hague has deterred others against using violence as a governance tool; Kenyatta and Ruto's politicization of their trials has weakened public perception of the ICC and the consequences of belligerency against civilians. Kenyatta and Ruto's fanfare is also delegitimizing pre-existing case at the ICC - those standing trial have committed serious offenses, as is the case of Al-Bashir and Lubanga. To date, the African nations have needed the ICC more than other regions if the number of war criminals given up by their own countries is any indication.

Regardless of whether Kenya decides to pull out of the ICC, the cases against Ruto and Kenyatta will continue, as per the rules and regulations of the Rome Statute. The wisdom of the leaders' and their supporters' protests must be objectively examined. Considering Kenya's current position in the international community as a regional financial hub, economic rising-star, and increasing popularity as a healthy African country in the 21st century, is it in Kenya's interest to withdraw from the ICC?

(Elizabeth Ray is a Research Intern at Observer Research Foundation, Delhi)

  1.    "Kenya ICC 01/09," International Criminal Court, http://www.icc-cpi.int/EN_Menus/ICC/Situations%20and%20Cases/Situations/Situation%20ICC%200109/Pages/situation%20index.aspx.

  2.    Government of Kenya, "Kenya: Commission of Inquiry into the post Election Violence (CIPEV) final report," ReliefWeb (OCHA), October 16th, 2008. http://reliefweb.int/report/kenya/kenya-commission-inquiry-post-election-violence-cipev-final-report.

  3.    Muthaura has since been dropped from the suit

  4.    Other countries with on-going cases at the ICC are the Democratic Republic of Congo, Central African Republic, Uganda, Sudan, Libya, and the Côte d'Ivoire

  5.    With the exception of the International Criminal Tribunal for the former Yugoslavia which, although a special UN Tribunal, was conducted on The Hague's premises.

Government of Kenya. "Kenya: Commission of Inquiry into the post Election Violence (CIPEV) final report." ReliefWeb (OCHA). October 16th, 2008. http://reliefweb.int/report/kenya/kenya-commission-inquiry-post-election-violence-cipev-final-report (Accessed September 9th 2013).

Kennedy, Brian. "Kenya: Early Results Give Raila Odinga Lead." AllAfrica. December 28th 2007. http://allafrica.com/stories/200712280783.html (accessed September 10th, 2013).

"Kenya: 2007 Presidential election results." Electoral Institute for Sustainable Democracy in Africa. July 2010. http://www.eisa.org.za/WEP/ken2007results.htm (accessed September 9th, 2013).

"Kenya ICC 01/09." International Criminal Court. http://www.icc-cpi.int/EN_Menus/ICC/Situations%20and%20Cases/Situations/Situation%20ICC%200109/Pages/situation%20index.aspx (accessed September 10th, 2013).

Lynch, Gabrielle and Mi?a Zgonec-Ro?ej. "The ICC Interventional in Kenya." Chatham House. February 2013. http://www.chathamhouse.org/sites/default/files/public/Research/Africa/0213pp_icc_kenya.pdf (accessed September 9th, 2013).

Pflanz, Mike. "Uhuru Kenyatta's crimes against humanity trial must be stopped, Kenya tells UN." The Telegraph. May 9th 2013. http://www.telegraph.co.uk/news/worldnews/africaandindianocean/kenya/10047573/Uhuru-Kenyattas-crimes-against-humanity-trial-must-be-stopped-Kenya-tells-UN.html (accessed September 10th, 2013).

"Report from OHCHR Fact-finding Mission to Kenya, 6-28 February 2008." United Nations High Commissioner for Human Rights. http://5d0851659fb2c02cd1ff-af1bbd52513c4a786d3ef25bdd02ad4c.r84.cf1.rackcdn.com/wp-content/uploads/2008/03/final-ohchr-kenya-report-19-march2008.pdf (accessed September 9th, 2013).

"Situation in Kenya." The Hague Justice Portal. http://www.haguejusticeportal.net/index.php?id=11604 (accessed September 9th, 2013).

Wheeler, Tom. "Africa and the International Criminal Court." South African Institute of International Affairs. July 18th 2011. http://www.saiia.org.za/opinion-analysis/africa-and-the-international-criminal-court (accessed September 9th, 2013).

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