Kenya Churns Over the International Criminal Court

Deputy President William Ruto’s International Criminal Court (ICC) trial for crimes against humanity associated with the 2007 elections opens September 10 in The Hague. President Kenyatta’s trial is scheduled to open November 12. On September 5 the Kenyan National Assembly passed a motion calling for Kenya to withdraw from the ICC; the passage of the necessary legislation is expected by the end of the month.

As the date of the start of the trial approaches, two more witness have withdrawn from the Ruto case, citing “mental anguish” and “pressure from the family.” Fatou Bensouda, the ICC prosecutor, has complained on numerous occasions of witness intimidation and of the Kenyan authorities’ failure to cooperate in their protection.

With respect to President Kenyatta, in the Kenyan press there is a lively debate on whether the immunity conferred by the Kenyan constitution on a sitting president trumps the ICC. The general sentiment is that it does, and that Kenyatta’s trial cannot go forward so long as he is in office. The debate also features a rehash of familiar arguments about the alleged bias of the ICC against African leaders despite the fact that the prosecutor, Fatou Bensouda is a Gambian who received her university and legal training in Nigeria. (She also studied maritime law in Malta.) There are eighteen ICC judges. Five are from Western Europe, five from Africa, three from Latin America, three from Asia and two from Eastern Europe.

Kenya’s withdrawal from the ICC appears inevitable. With respect to the Ruto and Kenyatta trials, it changes nothing–and it changes everything. As human rights activists and legal experts point out, Kenyan withdrawal can take place only after a year. Further, withdrawal has no legal impact on the indictments now standing against Kenyatta and Ruto. But, Kenyan withdrawal also changes everything because, in effect, the ICC trial will not be able to function without Kenyan government cooperation. Ruto is required by the ICC to be in The Hague on September 10. He previously pledged to cooperate with the court and therefore is obliged to appear. We will see if he actually goes.

The entire dreary episode appears to be a setback for holding African leaders accountable.