The faith of two major presidential candidates in Kenya accused of sponsoring the 2008 electoral violence has become increasingly clear following a landmark ruling of Pre-Trial Chamber II of the International Criminal Court (ICC) on May 30.
In the ruling, the Chamber rejected an admissibility challenge filed by the Government of Kenya in connection to two pending cases before The Hague Court, involving the country’s most senior civil servant and some of Kenya’s most prominent politicians. Two of the suspects, Deputy Prime Minister Uhuru Kenyatta and suspended Minister of Higher Education William Ruto, had already announced their candidature for the 2012 presidential elections. However, since Monday’s ruling strongly indicates that Kenyatta and Ruto will stand trial during the campaign period, the two mastodons of Kenyan politics now face an uphill task.
Despite being suspected for crimes against humanity by an international court known to be eager to obtain its first conviction, until recently it had looked somewhat promising for Kenyatta and Ruto.
Following ICC Prosecutor Moreno-Ocampo’s naming of the six suspects in December last year, Kenyatta and Ruto made a controversial pact, ruthlessly attacking anyone – notably Prime Minister Raila Odinga – who dared to advocate in favor of ICC trials. Though few have doubted that when Kenyatta and Ruto shook hands it was a “marriage of convenience” (the two candidates are accused of inciting violence on each others’ supporters in 2008), they gave the appearance of a formidable couple during rallies in the spring. Being supported by Vice President Kalonzo Musyoka and a number of other influential politicians, the alliance seemed the most serious challenge to Prime Minister Raila Odinga’s way to State House next year.
The only problem for the Kenyatta/ Ruto alliance was what had brought them together in the first place – the prospects of ICC trials. But members of Kenya’s political elite tend to stand by each other in hard times. So, many thought that the government was going to find a way out of this “mess” created by ICC Prosecutor Moreno-Ocampo.
A first move aimed at defying the international court was made in December last year when the Kenyan parliament almost anonymously passed a motion requiring the government to take “appropriate action to withdraw from the Rome Statute”, the treaty governing the ICC. That the government chose to neglect this request should not be seen as a consequence of commitment to accountability principles, but reflects that parliament had acted too spontaneously, failing to appreciate that such a withdrawal would not have any consequences for the pending ICC cases.
Instead, while the government officially stated its commitment to cooperate with the ICC, a new two-stringed strategy was created to avoid that Kenyatta, Ruto and the other suspects would end up in the dock.
Spearheaded by Vice President Musyoka, the government launched diplomatic efforts to obtain a U.N. Security Council deferral of the Kenyan cases, arguing that “the pending ICC indictments pose a real and present danger to the exercise of government and the management of peace and security in the country”. Unsurprisingly given the organization’s history of protecting alleged war criminals, including Sudan’s al-Bashir, Kenya swiftly ensured African Union backing for this move. However, in early April, the President of the U.N. Security Council made it clear that the Council would not further consider the request, seemingly finding that the requirement for a deferral – that the Court’s action constitutes a threat to international peace and security – was not met.
Disappointed with the international community’s lack of understanding for Kenya’s dilemmas, the government instead hired Sir Geoffrey Nice and Rodney Dixon, two prominent British lawyers, to halt the ICC process through an admissibility challenge. In complete neglect of what was stated in the deferral request, the government now argued that accountability for the post-election violence was indeed high on the agenda in Nairobi. As an outcome of this sincere commitment to bring to justice the masterminds of the 2008 electoral violence, the government claimed, far-reaching judicial reforms were being implemented, making it possible for Kenyan courts to take up the task of prosecuting those responsible for the violence, including Kenyatta and Ruto.
The international judges just didn’t get it.
While the Chamber’s rejection of the admissibility challenge presents a hard blow to Kenyatta and Ruto, it is likely to boost Prime Minister Odinga’s presidential aspirations. Yet, Kenyan politics remain highly unpredictable, and it is far from certain that the government will simply raise its hands and hand over the six suspects for trial in The Hague. Vice President Musyoka and other creative leaders may come up with new ideas of how to fight to the international court, and new unimaginable alliances may be formed. It all comes down to the game of succession politics, and Kenyan politicians are often notoriously known to do everything to get a taste of power.
Also see this article from Toward Freedom: How Will International Criminal Court Prosecutions Impact Kenya’s Legacy of Political Violence?
Dr. Thomas Obel Hansen is Assistant Professor of International Relations at the United States International University, Kenya.