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Vol 54 No 21

Published 18th October 2013


Kenyatta mulls nuclear option

Unless he gets a backroom deal to defer his case, the Kenyan leader is preparing to end cooperation with the International Criminal Court

The chances of President Uhuru Kenyatta appearing in the Hague to stand trial for crimes against humanity at the International Criminal Court are decreasing by the day. Astute lobbying by his government and its use of the Westgate terrorist attack to bolster its case, along with widespread acceptance of his mandate after national elections in March, have emboldened Kenyatta and his associates. The diplomatic ground has been carefully laid for Kenyatta to announce that he cannot go to the Netherlands on 12 November. Yet his deputy, William Ruto, who is currently on trial at the ICC, could lose out in any back-room deal that helps his boss.

The African Union’s extraordinary summit in Addis Ababa on 11-12 October gave Kenyatta half of what he was looking for: consensus support for a deferral of all cases against incumbent heads of state (see Box, African Union challenges the ICC). The other half was a mass withdrawal from the ICC, for which there was little appetite. The AU summit asked the United Nations Security Council to agree to the deferral of Kenyatta’s case. The only possible basis for this would be if it considered that the case might threaten regional peace and security. In the wake of the Westgate attack, Kenyan diplomats have been arguing just that: that it is impossible for President Kenyatta to lead an effective counter-terrorist strategy while facing trial at the ICC (AC Vol 54 No 20, Shockwaves after the shoot-out).

Further to that, Kenya has hinted to Western governments that its cooperation in regional counter-terrorism would be less forthcoming should its President face the humiliation of a trial at the Hague. That brinkmanship resonates with the United States, European governments and other countries with nationals and investment in Kenya. However, widespread accusations that the leaders in Addis Ababa were voting for a return to absolute impunity may have prompted them to reject the mass withdrawal from the ICC called for by Kenya and Sudan. The ICC has indicted Sudanese President Omer Hassan Ahmed el Beshir for genocide, crimes against humanity and war crimes but his regime refuses to cooperate with the Court in any way. It signed the Rome Statute establishing the Court in 2000 but announced in 2008, as Omer was being investigated, that it would not ratify it.

Tutu defends the ICC
Civil society organisations and human rights groups throughout Africa were preparing a mass campaign against an AU withdrawal from the Court. ‘The ICC is the world’s first and only court to adjudicate crimes against humanity,’ argued South Africa’s Archbishop Desmond Tutu. ‘But leaders of Sudan and Kenya, who have inflicted terror and fear across their countries, are trying to drag Africa out of the ICC, allowing them freedom to kill, rape and inspire hatred without consequence.’

Kenyatta has nurtured the image of a constitutional leader, successfully courting Nigeria and South Africa. His diplomats have denied trying to orchestrate a mass withdrawal. Ethiopian Foreign Minister Tewodros Adhanom said that if the Security Council did not respond to the AU deferral request, Kenyatta would have continental backing to refuse to attend the scheduled opening of his trial on 12 November.

Kenyatta’s supporters have been preparing, in case he decides not to go to the Hague. For several months, we hear, the British government has been convinced that he will not stand trial and has been planning accordingly. Members of the presidential circle say Kenyatta’s reluctance to appear in court is as much about personal pride as foreign policy or national strategy. Before he was elected, Kenyatta drew parallels between the ICC case against him and the detention of his father, Founding President Jomo Kenyatta, by the British colonial authorities on trumped up charges during the Independence struggle of the 1950s. He says the attempt to prosecute him for crimes against humanity is just another imperialist attempt to sideline a Kenyan nationalist leader. The fact that international support for the ICC cases was led for a time by the British government has only hardened his resolve.

Kenyatta’s government is using every trick in the book to weaken support for the ICC trials. The long-running uncertainty over the prosecutions is likely to be resolved in one of two ways. Either the Court will bow to the clamour for deferral until Kenyatta leaves office or the proceedings will go ahead and Kenyatta will not appear, confident that his refusal will not result in effective sanctions. When the charges were first confirmed, it seemed unlikely that Kenyatta could secure international support for either option. Since then, much has changed. During the presidential election, his campaign managed to persuade its supporters that his whole community was under attack and that the ICC, aided and abetted by his rival, Raila Oginga Odinga, and ‘neo-colonialists’, was the enemy.

Once elected, Kenyatta used his new-found domestic legitimacy to step up the campaign against the ICC. His government understood that its best line of attack was to persuade other African states, which with 34 of 122 states represent a significant proportion of the parties to the Rome Statute, to threaten withdrawal.

The argument that the ICC was pushing a racist agenda, pursuing only African targets, went down nearly as well within the AU as it did previously within Kenyatta’s own Kikuyu community. From that point on, it was likely that the AU would support him against the ICC. Few expected, though, that the AU summit would propose a relatively moderate solution. The UNSC and ICC are now in an uncomfortable position: they will look weak if they cave in to the AU’s call for a deferral but could seem unreasonable if they don’t, especially given international sympathy for Kenya after Westgate.

Privately, many Western diplomats say that a deferral might be the ‘best worst’ option, keeping the cases open and saving face for the ICC while effectively giving Kenya what it wants. This option is important to the West because if Kenyatta simply refuses to comply with the Court, countries such as Britain and the USA will be obliged to observe only ‘essential contact’ with his government. They fear that Kenyatta respond in kind, freezing them out in favour of stronger ties with China and other partners and reducing his commitment to the war against Al Haraka al Shabaab al Mujahideen in Somalia and countering other Islamist organisations.

Case already in jeopardy
Although both Britain and the USA remain committed to the ICC in principle, neither is keen to lose influence in East Africa in order to defend a case that British officials believe likely to be long, costly, and problematic. Over the past year, many key witnesses have been either bribed or intimidated into withdrawing their testimony. If this continues, the future of the case looks in jeopardy in any event. Such assessments have significantly undermined Western support for the idea of prosecuting Kenyatta come what may.

The prospects for a deferral are not good, though. Setting the precedent that cases against sitting heads of state should be deferred would require the UN to rethink its policy on Sudan. Those Security Council members who have tried to constrain Field Marshal Omer el Beshir would find a deferral for the Sudanese leader unacceptable and have said so previously.

Africa Confidential understands that London and Washington have drawn up contingency plans to continue working with Nairobi should the AU’s request for a deferral succeed and Kenyatta refuses to appear at the Court. Both governments plan to operate with a very broad definition of essential contact in an attempt to maintain good relations with Kenyatta, whom they see as key to the economy and security of the region, especially Somalia. Kenyatta is well aware of these calculations. Having discerned that he stands to lose relatively little by refusing to go to the Hague, that eventuality is becoming more likely. The prospect of what insiders refer to as the ‘nuclear option’ is more real than ever.

The relatively flexible position of some Western governments does not mean an easy ride ahead for the Kenyatta government in the event of his no-show at the ICC. Kenyans will not enjoy being international pariahs and Kenyatta’s carefully constructed statesmanlike image will be tarnished. The country is likely to take a hit in terms of foreign direct investment and consumer confidence. There will also be domestic ramifications. Tensions are likely to rise within the Jubilee Alliance if Kenyatta secures a deferral or refuses to comply with the ICC while proceedings continue against his Deputy President and Alliance partner, Ruto. Yet Kenyatta may be able to turn this to his advantage.

If the case against Ruto goes on and Kenyatta continues to support his ally while doing little to make the case against him go away, he may be able to increase his leverage on Kenya’s second most powerful politician. For those facing trial, the ICC could bring opportunities as well as risks.                                     


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