Kenya's ICC Experience: Few Winners, Many Losers

Now that the remaining Kenyan cases at the International Criminal Court have been terminated (at least for now), there will undoubtedly be much debate on who the winners and losers are. 

President Uhuru Kenyatta and his Deputy, William Ruto, were already ahead on that score even before their cases collapsed. It is almost certain that without the ICC indictments they would not be in power today. Now, not only do they not need to worry about the Court for the foreseeable future, they also are, by virtue of their incumbency, in pole position for the next electoral contest in about 16 months’ time. 

However, the picture is not all rosy. The two have laid claim to a spurious exoneration, which conveniently ignores the fact that neither was acquitted. In fact, if one was to consider their oft-repeated desire to “clear their names”, one would have to conclude that they failed pretty badly. That both cases were stopped for a lack of evidence, with the ICC judges citing both the Kenyatta administration’s obstructive behavior and “the troubling incidence of witness interference and intolerable political meddling”, will continue to cast a pall on the duos reputations.

One must also wonder what will become of their political union which was forged in the heat of the common ICC threat. Will it go the way of the National Alliance Rainbow Coalition, which begun to disintegrate shortly after its victory over the Moi regime? It remains to be seen whether the fruits of victory would be ashes in the Jubilee coalition’s mouth.

The Kenyan government is another entity claiming a dubious victory. “The court itself looking at the evidence and the law has arrived at a judicial decision which vindicates the position taken by the government,” declared Attorney-General Githu Muigai. The court’s citing of the the government for obstruction does not seem to perturb him in the least. Neither, apparently, does the September 2013 Sunday Nation claim to have established the existence of “a shadowy team hunting down witnesses”.  There has since been no evidence of the government doing anything to find and prosecute those involved.

Further, it will not be forgotten that the government expended public resources and much diplomatic capital proclaiming immunity for the Head of State despite the constitution clearly limiting such immunity. The embarrassing scenes of it playing both victim and bully at international fora will also not quickly fade from memory.

While the winners may be somewhat ambiguous, the losers are clear. The ICC has undoubtedly suffered a serious blow to its credibility. The incompetence of its prosecutor, the mud Kenya and her African allies have thrown, and its cruelly exposed impotence when facing a hostile government have all worked to tarnish the Court’s reputation.

The victims too have lost out on what may be the last opportunity to hold someone to account for their plight. The government’s decision to transform “a personal challenge” into what President Kenyatta this week described as “a nightmare for my nation”, coupled with the fact that to date only a handful of people have been prosecuted for the murder of over 1,300 Kenyans and the rape, mutilation and displacement of thousands more, shows that there is little political will to punish those responsible.

But perhaps the biggest loser will be Kenya itself. Elite fear of the ICC was one of the reasons why the last election had low levels of violence. Now as another polarizing poll looms, that fear is fast receding. And with the electoral system in shambles and the Supreme court reeling from corruption scandals, the country is right back where it started: another disputed poll could set the country alight. 

Even worse for both ordinary Kenyans who would bear the brunt and for the ICC, the court would not only not deter, but perhaps even incentivize political violence since it is now clear that taking power is the only guaranteed way to avoid its clutches.