On Saturday, Kenya’s Supreme Court, in a unanimous decision, upheld Uhuru Kenyatta’s victory in Kenya’s presidential election. This leaves many members of the international community in a very awkward position. Kenya’s newly elected president, and his running mate William Ruto, are both facing charges at the International Criminal Court for the roles they may have played during Kenya’s post-election violence in 2007. This decision is likely to further damage the credibility of the International Criminal Court as well as the human rights credentials of major international powers who will now be forced to engage with the president-elect.
Even though Uhuru Kenyatta has promised to cooperate fully with the ICC, and the court has equally promised to press ahead with its prosecution, the decision of the Kenyan Supreme Court cannot be good news for the ICC. The Court, which has secured only one conviction so far from a case list that is almost exclusively African, already has a severe image and credibility problem which can only be further damaged by developments in Kenya. The ICC was recently forced to drop charges against one of the other co-accused in the Kenyatta case due to the withdrawal of key witness testimony. Since the case against Kenyatta is based on very similar evidence, lawyers for the president-elect have requested that the case be sent back to the pre-trial chamber.
They could succeed on this argument. Even if the case is to proceed against Kenyatta, there is a possibility that his willingness to cooperate with the court may wane. His electoral victory has been seen by many as a rejection of the charges being leveled against him by an "imperialist" ICC. Kenyatta has previously gone on record accusing the British government of working against him. If the ICC case continues to act as a thorn in the side of his presidency, it would not be too much of a stretch for the President-elect to ramp up the "anti-imperialist" rhetoric against the Court and refuse to cooperate. In perhaps a sign of things to come, Kenyatta, in his March 9 acceptance speech, reminded Western powers to respect the democratic will of Kenyans, even while continuing to pledge his cooperation with international bodies.
If the new administration decides not to cooperate, the Court will be virtually powerless. The ICC depends on the consent and cooperation of its member states to work effectively. The Court has already had a tough time getting many Kenyans to cooperate with its investigation and this situation will worsen with an openly hostile government. Additionally, as with the court’s other fugitive head of state (Sudan’s Omar al Bashir) the Court will need to rely on Kenya’s regional neighbors to help enforce an arrest warrant. At the very least they would have to prevent Kenyatta from travelling through their territories. However, Kenya is too strategically important to the region. It acts as a vital trade hub and provides an invaluable outlet to the sea for many of the landlocked countries in the region. These countries remember how damaging the 2007 post-election violence was to their trade, and would be reluctant to de-stabilize the peace in Kenya by betraying a validly elected president.
The Supreme Court decision will also present a big headache for the governments of the U.S. and the UK. In the run up to, and the immediate aftermath of the elections, these governments seemed rather hostile to the prospect of a Kenyatta victory. Both nations have an official policy of maintaining only 'essential contacts' with individuals facing trial at the ICC. Dreading the discomfort of having to deal with a president accused of human rights violations, and also sensing an opportunity to boost their human rights credentials, the US, UK, and most Western powers unofficially pitched camp with Kenyatta’s opposition.
This choice was in itself arbitrary – according to some reports, the West’s preferred candidate, Raila Odinga, should probably also be facing charges at the ICC for his role in the post-election violence. Odinga seemed to be a safe bet; most opinion polls had him coming out victorious. Perhaps to help the cause of their preferred candidate, U.S. Secretary of State for Africa, Johnny Carson, infamously delivered a veiled warning to the Kenyan people about the implications of voting for an ICC indictee when he remarked in a conference call with reporters that "choices have consequences." Despite this warning (or perhaps because of it) Kenyatta and Ruto were chosen to lead (albeit by a slim margin; the victory came down to better voter turnout in key Kenyatta strongholds).
They now await the consequences and I don’t imagine there will be any. Following the announcement of results, Western powers refused to congratulate Kenyatta by name. However, now that his victory has been upheld by the country’s Supreme Court and the election has been declared free, fair, and transparent, these countries have come to accept the political reality and have officially acknowledged the president-elect in their congratulatory messages. This was to be expected; Kenya is too important strategically to both the U.S. and the UK, especially since it began to take a lead role in the fight against terrorism in Somalia. The sudden turnaround is embarrassing only in that it sheds further light on unfortunate international relations norms. Firstly, it is evident that principled positions based on human rights concerns will always be subordinate to other foreign policy interests. Secondly, the United States’ initial aversion to a Kenyatta presidency based purely on an impending ICC case further highlights the hypocrisy of a nation willing to pay lip service to a court it has not itself ratified.
I do not presume by the above that Kenyatta is innocent. He may well have a case to answer at the court. However, his election victory is in part a blow to the credibility of the Court and a rejection of attempts by the West to determine (no matter how subliminally) who is fit to lead in African states. The story of Kenyatta’s indictment is still being told; but at this early stage, two lessons that can be drawn. Firstly, the ICC needs to seriously address its credibility and image problem if it is to achieve its mandate. It would be a disaster if future indictment from the Court could be worn as a badge of honor by indictees, indicating that they have been targeted by an 'imperialist' outfit. Appointing an African chief prosecutor isn't far-reaching enough; diversifying the Court’s case load might be a useful step in the right direction.
Secondly, the Western powers may be wary about the dangers of seeming to have even a slight interest in the results of another nation’s elections. This is especially true of a nation like Kenya with relatively strong institutions – a candidate, no matter how unfavorable, validly elected in a clean democratic process, cannot be so easily avoided.