President Kenyatta Snubs African Union and Embraces ICC

Kenya has stood out for many decades as a leading international centre in Africa. It hosts the largest number of headquarters and regional offices of international governmental, business and non-governmental organizations on the continent.

Nairobi, the country’s capital, hosts Africa headquarters of United Nations and world headquarters of United Nations Environmental Programme and UN-Habitat. Over many years, international trade, tourism, international business have constituted a sizeable portion of Kenya’s gross national product.

When African countries rose up in arms against the International Criminal Court’s (ICC) case against President Uhuru Kenyatta, Kenya found itself, uncomfortably, at centre stage. It had its reasons. Although Kenya is a signatory to the Rome Statute that established ICC in 2002, as are most African countries, an indictment against Kenya’s President Uhuru Kenyatta was an unexpected development.

The ICC is an independent judicial body that would not accept impunity for grave international crimes—genocide, war crimes, and crimes against humanity. Unlike the International Court of Justice, which is based in The Hague but settles legal disputes between states, the ICC addresses mass atrocities committed by individuals at all levels. Ruthless national leaders could threaten, corrupt, or compromise judges and prosecutors at home. But the ICC is to rise above national afflictions and weaknesses. The court has been accepted by 122 states.

Kenyatta, then deputy prime minister, was accused of directing some of the violence that shook his country in late 2007 and early 2008. The orgy of killing, burning and attacks shook the country resulting in a political, economic and humanitarian crisis. It started as a dispute of election results by political parties but quickly became an ethnic conflict that pitted Kikuyus against Luos and Kalenjins, a legacy of ethnic rivalry that dates far back.

The savagery led to the deaths of 1,500 people and another 650,000 were displaced from their communities. The country came out of the violence heavily polarized and tense. The Kofi Anan-led Committee and a national commission that looked into the conflict recommended that its architects and leaders should be prosecuted by the ICC, in the interest of justice.

Most cases that come before the ICC were either instigated by countries (Uganda, Mali, Cote d’Ivoire, Democratic Republic of Congo) or at the instance of the UN Security Council (Sudan and Libya). In the case of Kenya, ICC acted on its own, relying on reports of the committees.

In 2011 the ICC summoned six Kenyans in connection with the violent acts: Kenyatta and two alleged accomplices on the one hand, and William Ruto, then Minister, and two alleged conspirators from the other side. In 2007–2008 during the crisis, Kenyatta, 52, and Ruto, 47, were senior members of opposing political parties, respectively leading Kikuyus and Kalenjins.

Both leaders led a political alliance that won the March 2013 elections despite opposition charges that Kenyatta was a “criminal-in-waiting” and that he could go to jail as president, if elected. Some powerful countries were known to have echoed reluctance on his eligibility for election. No matter what was claimed by critics, he was elected comfortably.

Whilst Deputy President Ruto and other indicted persons went to answer before the ICC, Kenyatta, now a sitting President, balked. The government of Kenya refused the authority of the ICC and mobilized other African leaders’ to serenade the “never shall we bow before ICC” chorus that had started earlier. The African Union had expressed strong support for Sudan’s President Omar al-Bashir’s rebuff in 2009 when ICC issued a warrant for his arrest over allegations of atrocities committed in his country’s western region of Darfur.

Despite the AU support, the Sudanese leader faced problems over the warrant of ICC. Threatened with possible arrest he cancelled a scheduled trip to South Africa in 2009 to attend the inauguration of Jacob Zuma as president. Neither the host country nor the visitor wished to find itself in the unpalatable situation of having to enforce the warrant.

Nigeria admitted al-Bashir to an AU summit in Abuja in July 2013 but the wanted leader left in the middle of the Summit without speaking to the meeting, amidst calls for his arrest and a court action filed by a civil society group. His movement became complicated and difficult.

This is not how a President carries out his duties. It heralded a new way of life for powerful personalities that would come before the ICC. Whilst some countries stated specifically that al-Bashir would be arrested if he set foot on their territories, others have welcomed and hosted him.  Of course countries that have not signed the treaty establishing the ICC had no obligations to act on its warrants or indictments.

The AU at its summit stated that the ICC should defer any actions against sitting heads of state and government. It accused ICC of targeting African leaders for prosecution. The records of ICC show that only Africans had ever been indicted. ICC is conducting preliminary examinations in several other countries such as Afghanistan, Colombia, Georgia, Honduras.

The AU could not get ICC to relent though.

President Kenyatta fought the ICC frontally. Kenyans responded with the same supportive applause as when he was elected with their votes. He mobilized his peers for support in October 2013 at an Extraordinary Session of AU Assembly that was mainly dedicated to Africa’s relationship with ICC. The summit made a case to bail out Kenya, and the leaders, by extension.

Kenyatta must have been having some sleepless nights. He must have considered the position of Kenya internationally. His bold statements and refusal of ICC must have been well crafted, camouflaging that covered deep-seated rumblings in his head. How would it look for the young, dynamic Kenyatta, scion of a political and business dynasty to act like a fugitive, watchful of every international trip to be sure he would not be picked up, like former President Charles Taylor of Liberia? Indicted in 2003 by the ICC, Taylor was picked up three years later in Nigeria where he was living in exile, tried and jailed in 2012 for 50 years.

Internally, pressure had mounted on Kenyatta. At the home front, the fault lines of the atrocities of 2007 and 2008 were emerging more pronouncedly. What answers would he and his supporters have for the restive supporters of Ruto who say that their leader was answering to the ICC and was a sacrificial lamb when Kenyatta as leader of the second indicted group appeared unconcerned?

The rumblings over how the Kikuyus were playing smart against the Kalenjins were getting louder, despite the apparent political alliance of their leaders.  Several associations including the powerful National Council of Churches of Kenya called on Kenyatta to go to The Hague if he really had nothing to hide.

The African Union met in February 2014 and maintained its position on the ICC. President Kenyatta’s voice was loudly heard in unison. He would not answer to the ICC. Astonishingly, few months later, he did a U-turn. In a dramatic show of political nimbleness, he told Kenyans that he would drop his immunity of office, suspend his political status as president, hand over to his deputy, and travel to The Hague as an ordinary citizen to appear before ICC.

He did exactly as he said. A regular citizen, he checked in at a counter at the airport in Nairobi, boarded a Kenya Airways flight to the Netherlands. He appeared before ICC, seating with his lawyers. Kenyans hailed him as a leader who had nothing to hide. The first sitting president to appear before ICC, he returned home to a heroic welcome.

The hearing will continue, although it is unlikely that there will be much of a hearing as it appears that key witnesses against the President have either withdrawn or are seemingly uninterested in the case. By the day, the case against Kenyatta and some of the accomplices is getting weaker. Kenyatta’s trial was to start in November 2013 but was postponed to February 2014 after the prosecution and defense teams said they needed more time to prepare. Most recently, the prosecutor has sought long adjournments, stating that he did not have cooperation from Nairobi to access desired documents.

In hindsight, it would seem that Kenyatta had one step in his African roots but another step in the global community within which Kenya plays forward position. While playing ball with his peers at the AU he had his mind focused on the larger world. Sudan’s President al-Bashir stands tall as the African model of refusal of ICC and he insists on his presidential immunity. President Kenyatta stands taller as the new model of African leadership that is willing to stand trial and face justice.

Between rhetorics and actions there can be a wide gap. Kenyatta has confirmed the importance of ICC and has accepted its authority by acquiescing to appear before it. He joins his compatriots who have made several appearances before ICC and confirms to Kenyans that he would not let immunity shield him. It was a masterful performance in political theatre.

At another level, the cohesion amongst African leaders is again thrown in disarray by the actions of Kenyatta. The notion that AU is a group of peers that makes decisions collectively is in jeopardy, as it has happened often in the past. Sovereignty of countries has proved overriding and it shall be each country and leader for itself. Kenya has chosen to stand with the international community. A dance with the ICC is preferable to living a furtive existence. And it is most likely that Kenyatta will laugh last.

Makinwa is a communication for leadership entrepreneur based in South Africa and Nigeria. Twitter: @bunmimakinwa

Published on November 21, 2014 by Sahara Reporters

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