Diplomatic Dilemma in Kenya

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Western governments warned against electing Uhuru Kenyatta, but what should they do now that he looks certain to become president?

By Felix Olick - International Justice - ICC ACR Issue 343, 26 Mar 13

Ahead of Kenya’s March 4 presidential election, western states sent out strong signals that electing two suspects who face trial at the International Criminal Court, ICC, in The Hague would have “consequences” for the country internationally.

Their fears have come true. Although his opponent is challenging the results, Uhuru Kenyatta has emerged as the next president, with his running-mate William Rutu likely to become vice-president. Both are due to stand trial at the International Criminal Court, ICC, on charges of orchestrating months of bloodshed that followed a disputed presidential election in December 2007, leaving more than 1,100 people dead.

One obvious course of action would be for the international community to press the Kenyan government to comply fully with the ICC process. After all, the court’s prosecutor, Fatou Bensouda, has complained that the Kenyan government has not been fully cooperative with her investigations.

On March 11, Bensouda’s office announced that it was dropping the charges against one of the four Kenyan suspects facing trial, the former head of the Kenyan civil service, Francis Muthaura after a key witness withdrew his testimony.

The announcement came as a bombshell since it came just as Kenyatta was celebrating victory.

Citing her reasons for the decision, Bensouda said that the Kenyan government had not given her access to critical evidence that she needed to support her case.

“Despite assurances of its willingness to cooperate with the court, the government of Kenya has in fact provided only limited cooperation to the prosecution,” Bensouda told judges. “It has failed to assist it in uncovering evidence that would have been crucial, or at the very least, may have been useful in the case against Mr Muthaura.”

It was not the first time that Bensouda has complained about the level of cooperation from the Kenyan government.

Her complaints also raise concerns about the extent of the international commitment to take effective action to back the ICC, aside from issuing general warnings about the implications of electing suspects.

“It seems pretty obvious that the international community, broadly speaking, hasn’t exactly lent its political support in terms of putting pressure on Kenya to cooperate with the ICC," said Mark Kersten, an international justice expert at the London School of Economics. “I, for one, have never seen a statement [to that effect]. And no one has said anything since [the election], no one – not even the UN Security Council – has lent their support [to the ICC]. It seems pretty clear that Bensouda is out there on her own trying to make things happen.”

Another international lawyer, Mbuthi Gathenji, believes that the ICC’s member states, known as the Assembly of States Parties, need to tread a fine line dealing with Kenya on matters related to the court.

He believes that as an independent institution, the ICC ought to be seen to be operating as such.

“The Assembly [of States Parties] may certainly support the effectiveness of the Rome Statute [which underpins the court] by deploying political and diplomatic efforts to promote cooperation and to respond to non-cooperation,” Mbuthi said.

“However, threats of consequences if Kenya elect suspects and pressure to cooperate with the court are clearly different issues.”

Both Britain and the United States issued their warnings shortly before the polls, making it clear that a Kenyatta victory would not be welcome.

US Assistant Secretary of State for African Affairs, Johnnie Carson, told Kenyan voters that “choices have consequences”.

"We live in an interconnected world and people should be thoughtful about the impact that their choices have on their nation, on the region, on the economy, on the society and on the world in which they live,” he said.

British High Commissioner to Kenya Christian Turner said, “It is a well-known position of my government and others that we don’t get in contact with the ICC indictees unless it is essential. It is not a policy specific to Kenya only, but a global policy.”

The three suspects now facing trial – Kenyatta, Ruto and journalist Joshua Arap Sang – have cooperated with the court since they were summoned before its judges in March 2011. In his victory speech on March 9, Kenyatta pledged to continue to cooperate with international institutions.

Commentators say that western governments now face a tough choice. On the one hand, they have a commitment to the ICC, while on the other, they will not want to harm their economic and security interests in Kenya.

European governments including the UK are the ICC’s main funders, contributing more than 50 per cent of its annual budget. But while these governments support international justice, observers are uncertain how far they would put their economic and security interests at risk to further the court’s work.

Measures like economic sanctions to enforce cooperation with the ICC would be serious steps, and experts like Dr. X.N. Iraki, an economics lecturer at the University of Nairobi, doubt they will be forthcoming.

“Europeans are likely to see the business part before sanctions. They need Kenya as a gateway to East and Central Africa and [as] a frontier in the war on terror. Add oil discovery, and the negative side of sanctions emerge,” he said.

Iraki dismisses speculation that western powers might pull out of Kenya if Kenyatta becomes president.

Large US companies including the drinks company Pepsi and technology giant IBM are currently expanding in the country.

Tullow oil, a multinational oil and gas exploration company headquartered in London, and British American Tobacco are two of the top British companies in Kenya, with an annual turnover of millions of US dollars.

Meanwhile, Kenya’s military intervention in Somalia to fight the Islamist group al-Shabaab is seen as a major contribution to the global fight against terrorism and to stabilisation efforts in the region.

Iraki points out that the March 4 election was itself a landmark in restoring stability to Kenya after the 2007-08 violence. The polling and the protracted count went off almost entirely peacefully. That is a huge step forwards, given that the last election led to chaos that left the Kenyan economy in tatters and badly affected trade and production across East Africa.

That is hardly something the international community will want to put at risk.

“I do not think any western country wants to be seen as the source of destabilisation – economic or otherwise – after we voted peacefully, and sent soldiers to lawless Somalia,” Iraki said.

Dr Joseph Magut, a political scientist at Kenyatta University in Nairobi, predicted that western governments “may not retract their hard-hitting statements issued earlier, but they would continue doing business with Kenya”.

As Magut points out, western economic interests are now competing with those of states like China and India. Since neither has signed up to the ICC, they are not hampered by considerations about a Kenyatta presidency.

Kenyatta’s main rival, Raila Odinga, has challenged the election result, and a petition to that effect is currently before the Supreme Court. But if judges uphold the election commission’s decision, Kenyatta will become Kenya’s fourth president.

Felix Olick is a reporter for and The Standard newspaper in Nairobi. Simon Jennings, IWPR's Africa Editor, contributed to this report.

This article was produced as part of a media development programme by IWPR and Wayamo Communication Foundation in partnership with The Standard.