The ICC's Dilemma In Uhuru, Ruto Cases

A version of this article was published in The Star.

Last week, Uhuru Kenyatta made history. On Tuesday, he became the first sitting President to hand over power to his Deputy and two days later, paradoxically was the first sitting President to ever appear before the International Criminal Court. On his return, he was treated to a hero’s welcome with thousands thronging the streets, egged on by his administration. According to one poll, his approval ratings soared to 71 percent, compared to 43 percent just two months ago.

“Politics is theatre. It doesn't matter if you win. You make a statement. You say, ‘I'm here, pay attention to me’” said the gay American politician, Harvey Milk. The unnecessary theatrics of handing over power and resuming office –“a temporary abdication,” Sky News called it- showed just how well the Kenyatta administration understands this. In fact, he and his Deputy, William Ruto, have skilfully managed to turn their indictments for crimes against humanity to their political advantage, easily slipping into the role of victim. In fact they have utilised a trope long made famous by Kenyan politicians. Every time one of them has been threatened with prosecution for economic crimes or political violence, they have mastered the art of using their ethnic communities as a shield. So effectively, they paint themselves, and their communities, as victims and generate political heat to prevent the cases ever being judged on their merits. Failing that, there is always the time-honoured practice of bribing, intimidating and even murdering witnesses.

In the cases before the ICC, we have seen elements of all these strategies. First was the sustained campaign to paint the court as anti-African and to transform the duo into the victims of “the toy of declining imperial powers” as President Kenyatta described the court at the African Union. This is the “our community is being targeted” argument. That African nations form the largest single group of signatories to the Rome Statute, that the Prosecutor is African and that the many of cases, including, arguably, the Kenyan ones, were referred to the ICC by African nations themselves are facts that are not allowed to stand in the way of this performance of collective victimhood. Why Sudan and not Syria, they cried, ignoring that while both are not signatories to the treaty, the latter has cultivated friends at the UN Security Council who have prevented any reference of the situation to the ICC. Omar Bashir, however, is not so lucky in his alliances and indeed it was the Security Council that got the ICC involved in his case. But it is easier to demonize the ICC than to go after the Security Council. And they are not after the Security Council anyway.

Then there was the attempt to turn up the political heat and to get the cases either postponed or dropped altogether.  From the UN to the AU to the Assembly of State Parties, the Kenyan Government pulled all the stops, declaring that these cases were no longer the “personal challenges” of presidential candidates, but the national security issues of the entire country. The prosecutions threatened the fragile peace between the Kikuyu and Kalenjin communities who, though reconciled, were apparently raring to have another go at each other’s throat. It was only the promise of impunity that kept them apart, or so the story went.

When a poorly attended extraordinary AU summit embraced the position that no African head of state should be prosecuted while still in office, the Kenyans wasted no time declaring a massive victory. The fact that it was reportedly just 15 out of the continent’s 54 countries that endorsed the view was irrelevant. The show must go on! However, the UN and the ASP took a rather dim view of that proposition, the former declining to stop proceedings and the latter only agreeing to change the rules to allow the two accused to skip some court sessions and to attend via video link. Of course, the fact that the Kenyan constitution specifically allows for the prosecution of the President did not appear to give the government pause for thought. Worse, it did not lead any of our parliamentarians or journalists to ask why the Uhuru administration was seeking to subvert the clear intention of the basic law that the Presidency not serve as a shield for those charged with international crimes.

Alongside all this, strange things were happening with the witnesses. Some died, others had their identities revealed, still more begun to withdraw, some turned out to be liars, yet others had sudden attacks of conscience and claimed to have been enticed to lie on the stand through promises of relocation to Europe.  Reports begun to emerge of cartels hunting down and threatening or bribing witnesses. As well, the prosecutor was complaining of non-cooperation from the government which was accused of withholding evidence which became increasingly crucial as witnesses dropped out. 

Soon, Madame Fatou Bensouda was admitting that she no longer had enough evidence to sustain a conviction. But the show must go on, she argued, saying that it would be a mistake to reward the government’s intransigence. On their part, many Kenyatta’s supporters took to claiming that in fact there was no evidence at all and that he had been framed.  However, the OTP, at the last status conference summarised the evidence it had, including witnessed and phone records linking Kenyatta to the financing of the Mungiki terror gang to carry out attacks.

So where do we stand today?

As a court of last resort, it was indeed the failure to set up a credible local tribunal to try the elite that forced the ICC to act. But, for such a landmark case, the first attempt to hold a sitting head of state to account, the trials have revealed the weakness at the heart of the international justice system and just how vulnerable it is to both political pressure and governmental manipulation. Ironically, it is to escape these very factors that many put their faith in the ICC in the first place, viewing it as a panacea for weak local courts unable to hold powerful elites to account.

However, the tough realities of trying to prosecute some of the most powerful people on the planet have demonstrated that the court should not be oblivious to the politicising of its procedures and decisions. Arguments made inside the court are just as likely to be aimed at political constituencies as at the judges, and political theatrics are just as likely to affect the court’s ability to effectively try cases. Further, as has been demonstrated in the case of the Sudanese President, the ICC lacks the means to coerce even signatories of the Rome Statute, let alone those standing outside of the treaty, into abiding by its decisions.

This raises difficult questions for the supporters of the court and for those who struggle against official impunity. How to ensure cooperation from the very governments whose leaders it is trying to prosecute? How to protect the court’s credibility without miring it in the muck of local and international politics? Does the Rome Statute need to be amended to give the court real teeth in enforcing its decisions? These and other issues will continue to engage those working to make real the promise of accountability long after the circus has left town.