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Who's Afraid of the International Criminal Court?

In Kenya, the answer is no one at all

Simon Maina/Getty Images

It’s hard to drag an elephant into a room. But once there, it’s surprisingly easy to ignore. Such was the case during Kenya’s presidential campaign, which concluded this week. After a series of galling technical mishaps, the latest vote count delivered the presidency to deputy prime minister Uhuru Kenyatta and his running mate, William Ruto. The elephant of course, is the fact that both are under indictment by the International Criminal Court, accused of inciting, organizing and funding ethnically motivated violence against political rivals—or as these actions are otherwise known, crimes against humanity.

Ironically enough, Kenyatta and Ruto's trials evolved from a gruesome spate of violence during Kenya’s last elections, in 2007. After a tense campaign between incumbent president Mwai Kibaki and Raila Odinga, the tally was announced and Kibaki immediately sworn in. It was the last thing many voters saw; minutes later, the televisions went black. The ensuing indignation of Odinga supporters—which at the time included Ruto’s support base—quickly escalated into a campaign of violent reprisals, placing poor Kenyans on farms and in slums alike at the center of pent-up tribal grievance. After six weeks of chaos, global diplomats intervened, and Odinga was declared runner up and prime minister. Twelve hundred people were dead, and over 350,000 were displaced. 

Two years later, Kenyan courts had barely begun to address the matter of justice for those killed or ruined by the clash. Into the breach came Luis Moreno Ocampo, the Argentine chief prosecutor of the ICC, wielding a clause in the Rome Statute that permits him to initiate proceedings (in other situations, the countries themselves refer the cases). After gathering witnesses and evidence, he brought charges against six Kenyans, including Kenyatta and Ruto. Until a last-minute intervention pushed Kenyatta’s date in court to July, their trial was to begin in April.

When I lived in Kenya from 2010 to 2012, the topic of the “Ocampo Six” was hot news. Whether the freshness of the violence in memory, the shame at the scale of the disruption or a new belief in accountability triggered by the constitution ratified in 2010, the mood was at least supportive of the ICC’s mandate. Tee-shirts reading “No Impunity”—referring to the Six—were edgy, but everywhere. The Kenya National Commission on Human Rights produced the report that helped inform the ICC case. In October 2010, 68 percent of the country favored a process to bring any wrongdoers to justice. Even in the Rift Valley and Central Provinces that form the heart for Ruto and Kenyatta’s coalition, surveys put support for the ICC process at 73 and 61 percent, respectively. In January 2012, Justice Minister Mutula Kilonzo said “a ruling by the ICC is equal to a ruling by a Kenyan court by virtue of ratification of Rome Statute. You play with that ruling at your own peril.” 

The statement has the tainted virtue of being half-true. While Kilonzo is right on the law, he is wrong on the politics. As Kenyatta, the 52-year-old son of the nation’s first president, mounted his campaign, he also mounted an assault on the Court’s legitimacy. He framed the prosecutions not as justice, but as western menace. (Ironically enough, he did so with the help of a UK-based public relations firm. ) “I am not saying that international justice doesn’t have a purpose,” he said in a combative interview with Al Jazeera. “But if Kenyans do vote for us, it will mean that Kenyans themselves have questioned the process that has landed us at the International Criminal Court.”  

For Kenyatta, drawing fire toward foreigners—rather than the gargantuan land and business holdings that make him seem more monarch than MP—has been tricky but successful politics. He percetibly changed public attitudes. By fall 2011, only 38 percent of the public backed the ICC. By the time of national elections Monday, the fourth since multiparty democracy emerged in 2002, it seemed perfectly acceptable to have two ICC-indicted politicians on the ballot. At last count, the alliance bested Odinga by 830,000 votes.

The conundrum didn’t go unaddressed. At Kenya’s first-ever presidential debate, moderator Linus Kaikai managed to poke the elephant. “Your trial for crimes against humanity begins in April,” he told Kenyatta. “For two minutes, provide the public with a clear plan of how you tend to govern if elected president and at the same time attend trial as a crimes against humanity subject.”

Kenyatta parried the question as a “personal challenge,” promising that “I will be able to handle the issue of clearing my name while at the same time ensuring that the business of government continues.” When pressed, Kenyatta specified that his plan involved videoconferencing—prompting one of the best zingers of the season, from Odinga: “It’s going to cause serious challenges to run the government by Skype from The Hague.” 

Quickly, however, his peers backed off, affirming their opposition to the ICC, and the great efforts they made to hold a local trial. In fact, they didn’t—the parliament to which most belonged couldn’t convene a quorum to settle the issue—but the retreat was a sign of the new temperature around the country. Even if the ICC presented a golden opportunity to ding a major rival, no one wanted to be seen as supporting a process suddenly tarred as neo-imperial. 

Mohammed Dida, an upstart politico who provided koan-like pronouncements and comic relief throughout the debates, spoke plainly. “According to the culture of justice, if you are found suspected of a crime, the norm that we had is you step aside until you are cleared. If there is nothing with you and you’re found not guilty then you resume your office. Why is it different with Uhuru and his friends?” No one provided a good answer.

It’s understandable for the political class to close ranks—an old story the world over. (For Kibaki and Odinga, who evaded prosecution, the instinct is perhaps even stronger.) More intriguing is how the popular tally of votes for “Uhuruto,” as the marriage of convenience is known, outstripped those for the unindicted. Given a slate of candidates untainted by the most damaging civil conflict in the country’s modern history, the people picked Kenyatta. Perennially tribal voting is the best answer as to why Kenyatta and Ruto, members of the two biggest ethnic blocs, prevailed. But the strong poll showing is the latest in a series of events that expose the ICC as an increasingly toothless body.

I spoke with Ocampo recently, on the subject of his actions in Kenya. He was sanguine about the role of the court and his own decision-making. Of the delays, and the potential for a multi-year process, he said, “You cannot expect the court to convict or acquit before elections.” That may be true, but the timing of the trials—postponed multiple times—left Kenyan voters with a question mark they had to fill in themselves on election day. This, too, was no problem for Ocampo. “If the political elites are not facing the issue, it’s a political problem,” he said. “I did my job.”

Beyond Kenya’s hostility, the ICC has been disfavored across Africa because it is seen as a scold for poor nations when similar cases could be built against western war criminals. Indeed, of the 26 defendants indicted by the court since 2002, all have been African. The asymmetrical prosecutions have ennobled neo-imperialist rhetoric, even from the mouths of otherwise loathsome characters. Sudanese president Omar Bashir, convicted in 2009 for prosecuting war crimes and genocide in Darfur, has barely bothered to acknowledge the warrant out for his arrest. When he came to Kenya in 2010, the High Court urged his extradition, but none was forthcoming. 

In retrospect, Kenya’s refusal to extradite Bashir may be seen as a first volley in its present clash with the ICC. The same thing happened when Bashir visited Malawi in 2012. As African parties to the Rome Statute are deciding they won’t respect the ICC’s judgments, it’s a sore spot for Ocampo. “Bashir changed the narrative—he was able to use a colonial past to present prosecution as racism—it’s a well repeated lie.”

To be fair, there’s an argument that the ICC wrongly saps local capacity. Moving the forum for justice to revitalized Kenyan courts or to a regional court in Arusha, Tanzania, might solve the legitimacy crisis and promote stronger local institutions. And whether the Ocampo Four are found guilty or innocent, the ICC continues to bumble in its assessment of regional politics.

The court started its second decade with a new prosecutor—Fatou Bensouda, a Gambian woman with a long tenure at the ICC. But it’s clear the real test of Uhuruto’s gamble will come not at the Hague, but in the court of international public opinion. Some international governments don’t take meetings with those indicted or convicted by the court. And rightly so—it’s a rum club, populated by the likes of Bashir and Joseph Kony. If and when the accused occupy the State House, they may trigger the kind of diplomatic sanctions and exclusions that could hobble east Africa's largest economy. Kenya remains a hub for regional security, humanitarian work and economic development. If the economy takes a hit, as it did following the 2007 upheavals, many millions will suffer.

The possibility of diplomatic exclusion and economic decline wasn’t enough to break the dutifully tribal voting patterns that make Kenyan elections look more like a census. In fact, when Assistant U.S. Secretary of State for African Affairs Johnnie Carson, made the terse statement that “choices have consequences,” he triggered a wave of indignation. Rather than condemning Kenyatta and Ruto, many of their supporters felt responsible for providing them a safe harbor from prosecution. 

As the dust from the vote settles, it may irk the west that the ICC indicted, while six million Kenyans turned out for Kenyatta. But that’s rather the point—appearances to outsiders have become as suspect as the sundry aid disbursements that flow from them. 

Dayo Olopade is a Knight Law and Media Scholar at Yale. Her forthcoming book, on innovation in Africa, will be released next year.

This article has been updated to reflect the latest vote counts.