A summons by the International Criminal Court to Kenya President Uhuru Kenyatta is forcing a standoff between the symbol of international justice – and the prerogatives of a sitting president whose decision on compliance could damage his country's foreign relations.
The ICC ruled Tuesday that President Kenyatta must attend an Oct. 8 status conference in person at The Hague in the Netherlands because the case against him is at a “critical juncture.”
Kenyatta faces charges of crimes against humanity after election violence in Kenya in 2007 in which more than 1,100 people were killed. The mass crimes listed on the ICC charge sheet include rape, murder, and the forcible transfer of populations.
As president, Kenyatta, who was elected in April 2013, has never physically attended court sessions, but has appeared via video link in meetings ahead of a trial that has proven increasingly difficult for the chief prosecutor to pull off.
Kenyatta’s spokesman, Manoah Esipisu, told the Monitor that the presidency has “no reaction” yet to the court’s decision. “I can’t answer either way,” he said when asked if Kenyatta would obey the summons.
If he goes to The Hague, Kenyatta would be the first serving head of state to sit in the dock at the world’s highest court, an ignominy and image he’s worked very hard to avoid since becoming Kenya’s fourth president. The idea that Kenyatta would have to enter the court alone, without his entourage, and face judges and prosecutors, is something he is known to loath.
But if he refuses and skips, the ICC could issue an arrest warrant, which may legally mark Kenyatta as an international pariah. Such is the case for Sudanese President Omar al-Bashir, who was indicted for genocide in Darfur and cannot easily or freely travel abroad. The idea that Kenyatta would end Kenya's cooperation with the court may harm the foreign relations of East Africa's hub nation.
“He [Kenyatta] is between a rock and a hard place,” says Macharia Munene, professor of international relations at Nairobi’s United States International University. “Of the two [options], none of them is very good.”
A Kenyatta no-show also puts the United States and some European nations in a tight spot. Those countries rely on Kenyan troops to fight Al Shabaab militants in Somalia, but have also said that their engagement with Kenyatta depends on his continued cooperation with the ICC.
Since becoming president, Kenyatta has staunchly resisted the ICC, calling it a “toy of declining imperial powers” that targets Africans. So far, all ICC indictees are African, though African nations themselves “referred” or backed five of the nine current cases.
(This spring a special UN commission of inquiry recommended that North Korea’s Kim Jung Un be tried by the ICC for the prison camp gulag system run by Pyongyang. The issue is pending.)
Kenyatta’s anti-ICC efforts resulted in an African Union declaration last year that African leaders should have immunity from prosecution. The ICC didn't go that far, but agreed to change its rules to allow Kenyatta to use video links instead of attending in person so he could fulfill his presidential duties.
The international justice and human rights community has been avidly supportive of the ICC as the first effort to bring to justice mass crimes that nation’s and perpetrators themselves are unlikely to prosecute.
If Kenyatta goes to court, analysts here say, he risks upsetting African leaders who rallied behind him against the ICC. Senior members of his own party have also urged him to ignore the summons.
“He’s getting advice from other African leaders that there are things they don’t want him to do… and they expect him to follow it,” Mr. Munene says.
Still, going for a pre-trial meeting at The Hague might be Kenyatta’s better option.
The case against him has all but crumbled after crucial witnesses withdrew their testimonies. Earlier this month, Gambian prosecutor Fatou Bensouda delayed the trial indefinitely citing lack of evidence. Observers say there’s a chance she’ll drop charges altogether on Oct. 8.
Ms. Bensouda says she’s faced “unprecedented” obstruction from Kenya’s government since Kenyatta became president.
In particular she alleges the government has withheld Kenyatta’s financial records, which could show he paid millions of dollars to arm and transport ethnic Mungiki gangs during the post-election violence.
Victims’ advocates say witnesses against Kenyatta have been bribed, threatened, or worse, forcing some to recant.
Kenyatta’s supporters say the faltering case is proof that Kenyatta is innocent, or that the ICC is politically driven and conducted poor investigations.