Delaying President Kenyatta’s Justice

This is a guest post by Cheryl Strauss Einhorn, a journalist and adjunct professor at the Columbia University Graduate School of Journalism.

Last week, two “firsts” occurred in Africa:

1. Kenya’s President Uhuru Kenyatta became the first sitting president to appear before the International Criminal Court (ICC) where he faces charges of crimes against humanity for allegations that he instigated the ethnic violence that erupted after the December 2007 elections killing over 1,000, the worst violence in Kenya since its independence.
2. President Kenyatta invoked a never-before-used article of the constitution, handing over power temporarily to his deputy president so that he could attend the two day hearing that will determine whether the ICC grants the prosecution more time to gain evidence or to possibly halt the case.

Were these the moves of a truly democratic leader, or are they the schemes of a crafty politician who stepped down so he could be tried as a private civilian in a court with the authority, but not the power, to collect evidence?

President Kenyatta knows that the ICC has no army or police to seize evidence. He is well aware that the prosecution is struggling to keep its case alive in the wake of two setbacks: witnesses recanting their testimony and a failure to secure Kenyatta’s phone and bank records that prosecutors claim would show he paid collaborators to take part in the post-election violence. Thus far seven witnesses for the prosecution have dropped out, allegedly through intimidation and bribes.

The prosecution has already asked once for the trial to be postponed. And judges are under pressure from other African leaders and the African Union to discontinue the case claiming that their heads of state should not be prosecuted by the ICC, which thus far has only brought indictments against African leaders, a state of affairs created by the ICC’s limited jurisdiction and authority.

Given the ICC’s difficulty, Kenyatta might expect the judges to feel compelled to drop the case. But perhaps the judges might consider postponing it indefinitely in an effort to delay justice so that it is not denied. Such a decision might have the collateral benefit of preserving the nascent ICC’s credibility as an impartial body.

Here’s how: A suspension would acknowledge that while there is no evidentiary cooperation now, the judges convey that it would be a mistake to dismiss the case entirely. It would allow the ICC to sidestep the growing diplomatic conflict with the African Union and effectively punt the future of the case to the ICC’s ruling body, the Assembly of States Parties, a political body that would be deciding the very political issue of when and how to try a case against a sitting leader.

While a deferral is at least a temporary win for Kenyatta, the ICC has already made a mark: The Kenyatta indictment sent a signal that the violence of 2007 would not again be tolerated and indeed it was not repeated after the last election. Moreover, leaders don’t often rule forever and thus witnesses may still come forward in the future, as they did after atrocities like the Holocaust.

Strong-men like Kenyatta can only continue to hoodwink their citizens with optics over evidence for so long. His grand gesture to step down to stand for a trial that can’t occur does not mean that he is innocent, but it may mean the ICC needs to be patient until Kenyatta’s time and options run out.