By Ken Opalo
On some matters, it is almost impossible for the administration of justice to be apolitical. The criminal case against President Uhuru Kenyatta at the International Criminal Court (ICC) is one such matter. As such, politics will definitely play a role in determining how the case plays out. Yes, the cases started before Kenyatta was elected president. But now he is the President of the Republic of Kenya. It appears that the government is willing to pull all stops in a two-prong strategy of applying political and diplomatic pressure on the court. The Kenyan Parliament appears on track to pull the country out of the ICC. And this weekend in Addis Ababa a special session of the African Union is scheduled to deliberate on the Kenyan cases at the Hague court.
The court now has to soberly weigh its options. One is to insist that President Kenyatta attends the hearings in person. This option has the risk of resulting in non-cooperation from the Kenyan government.
As Foreign Affairs Cabinet Secretary Amina Mohamed reminded the world on Wednesday, if President Kenyatta attends the hearings in person it would be the first time a sitting Head of State attended a court hearing in a foreign country. Indeed most countries have total immunity for Heads of State and government while they are in office. Furthermore, the Government of Kenya feels that it has already bent over backwards to accommodate the court by allowing Deputy President William Ruto to attend hearings in person.
In their view, rigidly requiring President Kenyatta to do the same might prove to be too much.
The other option for the court is to grant President Kenyatta his wish and allow him to attend hearings via video link. This option would allow the President to save face at home while at the same time maintaining Kenya’s promise of continued “cooperation” with the court.
This option would probably also prove popular with the Kenyan public. The fact of the matter is that even though during the campaigns Kenyatta insisted that the criminal charges against him at the ICC were “personal challenges,” after his election these challenges became Kenya’s challenges as well. What is best for the country is that he and his deputy deal with the cases in a manner that least interferes with the day-to-day running of the Kenyan government.
So will the political and diplomatic pressure on the court succeed? My guess is that it might. The court wants to preserve itself and remain relevant. And events in the recent past suggest that the Kenyan case comes with existential risks for the court. In short, Kenya can decide not to cooperate and most likely get away with it. Both the United States and United Kingdom governments (and other European governments as well) appear to be willing to violate their rules on “only essential contact” with ICC-accused. Three key reasons make it such that non-cooperation from Kenya will likely not result in the same consequences as in Sudan.
Kenya is an important diplomatic and economic hub in the region, and hosts the biggest US mission in Africa. Kenya also receives very little in donor support, and could survive without donor money. And lastly, the escalating “War on Terror” in the wider eastern African region means that Western governments cannot afford to have a hostile administration in Nairobi. In short, Kenya is not Sudan, and so non-cooperation might not prove to be as costly. Plus the government can always point to the trial attendance by the Deputy President to argue that they have done enough and the court is demanding too much. These are some of the things that the judges must weigh in their decision.
Like most analysts, I don’t think that the threat by the AU of a mass pullout from the ICC holds any water. Most of the African signatories to the court depend on donor money for budget support and are smart enough not to bite the hand that feeds them. Furthermore, any resolution for a withdrawal at the AU will require at least two thirds to pass. What the AU special session will do, however, is provide further diplomatic leverage for Kenya in its dealings with specific Western states –the US, UK and France that are members of the security council.
As I have always insisted, it would be a shame if the Kenyan case was the one that destroyed the ICC as a deterrent against mass atrocities in Africa. We might not need the court, but other weaker, poorer and worse run African countries do.