The peaceful outcome of Kenya’s election presents a different challenge to the International Criminal Court than the violence that followed the election in 2007. Uhuru Kenyatta is Kenya’s president-elect, but he also faces an indictment for crimes against humanity committed in the aftermath of the previous election, when over 1000 people were killed. The International Criminal Court (ICC) thus faces the difficult question of how to balance respect for the will of the Kenyan electorate (who have apparently trusted their country to Kenyatta’s hands, however flawed the overall vote count may have been) with the court’s mandate to uphold norms of international criminal law. The overall stakes are high for the Court: if it does succeed in striking the appropriate balance, its legitimacy will be strengthened, which may in fact lead to wider cooperation with the Court. On the other hand, if the Court overreacts in this situation, it will jeopardize chances of future cooperation and further strengthen the misperception that it is biased against African states and their leaders.
The ICC should pursue the Kenyatta indictment further and with full force if Kenya proves unwilling or unable to investigate the charges. However, the international community – especially the leading powers – should be very much hesitant to declare Kenyatta a persona non grata or repudiate his presidency or government. Doing so would be perceived as illegitimate interference in the legitimate electoral process of another state. As well, it will open the ICC to accusations that by subjecting Kenya to international diplomatic pressure, it is seeking a political outcome disguised as a judicial one. The ICC should not risk further undermining its credibility in Africa by opening itself up to charges that it is subverting the democratic political process of a member state.
Kenya has in fact cooperated with the ICC in the past. It is the only state from which all of the summoned – six individuals in total – have appeared before the Court. Mr. Kenyatta has made the following statement (perhaps in a veiled reference to his case before the ICC) immediately after his election: “We recognize and accept our international obligations and we will continue to cooperate with all nations and international institutions” but has also said that he hopes “the international community will respect the sovereignty and the democratic will of the people of Kenya.” At this juncture, it would be counter-productive to declare Kenya a diplomatic pariah and blacklist the newly-elected president. It would empower those who oppose the Court and the idea that sovereignty is a responsibility as well as a right, as well as further embolden Kenyatta before his domestic constituency.
Contrasting the Kenyatta indictment and that of Sudanese President Al-Bashir makes clear that the Court has an opportunity to proceed productively with Kenyatta. In 2010, Al-Bashir was indicted by the ICC for crimes against humanity, war crimes, and genocide in the Darfur region. Al-Bashir did not cooperate with the ICC in any shape or form. In fact, he has publicly defied the ICC a number of times by visiting states – most recently Chad – that are party to the Rome Statute of the ICC. While only time will tell if Kenya is willing or able to address the crimes within its national jurisdiction, the ICC must be patient with a leader who thus far has proven amenable to accounting for his alleged crimes.
Opponents of the ICC will be tempted to use the Kenya indictment as further evidence that the ICC is biased and merely reflects ‘power politics’. When the methods of referral of the cases currently in the docket in The Hague are considered, the fallacy of the ‘Africa bias’ of the Court is obvious, however this is a difficult message to convey to skeptical publics. The challenge of explaining that the Court has responded most often to requests from member states, rather than entering uninvited, renders the prosecutorial strategy and inherent legitimacy of the ICC vulnerable to accusations of partiality and Western domination. Mr. Kenyatta’s case is another opportunity to meet this challenge by demonstrating the Court works with, not against states. The principle of complementarity within the Rome Statue of the Court that gives preference to state sovereignty requires that the people of Kenya should have the opportunity to judge their President for themselves. The Court must give them room to do so, and then proceed if appropriate action is not forthcoming. This course of action will not be easily misrepresented as part of an “Africa bias” or “power politics”.
To operate effectively, the ICC must perform a very fine legal, political, and diplomatic balancing act. If the ICC stays the proceedings and allows time for the Kenyan authorities to address the issue within the domestic legal context, the ICC will gain much support, not only within the international realm but perhaps even from within Kenya as well. However, if the Court shies away from the case entirely, then may undermine its own raison d'être by allowing individuals charged with the gravest of crimes to escape justice. The ICC therefore must yield to Kenyan authorities, but only in the short term, while maintaining clear lines of communication with them. Clear communication will allow the Court to determine the will and capability on the part of Kenya to address the crimes so that it can exercise diplomatic and legal pressure as appropriate. The willingness of both the Court and the accused to communicate with each other will create an opportunity for justice to prevail in Kenya.