By Grace Chesson
Kenya’s relations with the United States and other nations remain strained as a result of the election of Kenyan President Uhuru Kenyatta and Vice President William Ruto, both of whom are under indictment by the International Criminal Court (ICC) on charges of crimes against humanity. Indeed, the Kenyatta-Ruto win has created a dilemma for states and institutions that need to maintain a working relationship with Nairobi while at the same time remaining committed to their values, such as advocating for human rights.
The indictments of the two Kenyan leaders are a result their alleged orchestration of the violence following the 2007 presidential elections, which left more than 1,300 dead and 300,000 to 600,000 Kenyans internally displaced. Leading up to the 2013 election, the U.S. and other countries voiced concerns about Kenyans electing suspected human rights violators as heads of state. Just weeks before the March election, former U.S. Assistant Secretary of State for African Affairs Johnnie Carson stated that “choices have consequences,” alluding to international repercussions and U.S.-Kenya bilateral relations.
Despite outside pressure, the indictments were not enough to keep the Kenyans from electing Kenyatta and Ruto. The candidates were able to use the ICC indictment to their advantage, championing their national identity and accusing the ICC of interfering in Kenyan affairs. They argued that the ICC is discriminating against them and the African continent as a whole in their case selection process.
From the time it entered force in 2002, the ICC has only indicted Africans and while the crimes of many of those facing trial are undisputed, many critics of the ICC have made the case that the court is purposefully targeting African leaders and ignoring those from other parts of the world. Throughout Africa, this isolation has created growing tension, which afforded Kenyatta the opportunity to unite Kenyans behind him.
Following the Kenyatta-Ruto victory, the United States released a carefully worded statement from Secretary of State John Kerry offering congratulations to the Kenyan people on a successful democratic election while making no mention of the victors themselves. The official policy of the U.S. is that it will only maintain “essential” contact with people indicted by the ICC. This becomes complicated with Kenya. The nation is a regional economic power that the U.S. wants to develop more robust ties with, and has played a key role in the effort to strengthen the fledgling Somali central government in its fight against the al-Qaida-linked militant group al-Shabaab. Yet, U.S. President Obama is playing hardball and has sent a clear message in bypassing his father’s homeland of Kenya in his recent trip to Africa.
The ICC, for its part, decided to delay the prosecution of Kenyatta and reduce the number of sessions in which Ruto must be physically present throughout the course of his trial after the two were elected. The ICC claims that this move has nothing to do with Kenyatta and Ruto’s victory and that the delay is due to the prosecution’s need for additional evidence. Whether or not this is the case, the decision to delay the trial is anything but reassuring to skeptics of the ICC’s effectiveness. And while the Kenyatta administration claims that it will respect its international obligations, if Kenyatta and Ruto choose not to cooperate when the trials come to fruition the ICC will be essentially powerless.
The Kenyan case may now be a replication of the case of Sudanese President Omar al-Bashir. Indicted by the ICC for crimes against humanity, al-Bashir has refused to comply with the court, yet has faced minimal practical repercussions. The fugitive al-Bashir has continued to travel throughout the region, even visiting countries that are signatories of the Rome Statute and obligated by the ICC to enforce arrest. The ICC is only as strong as its member states and the retreat of many African countries has been a serious blow to the strength of the court.
The next few months will be critical to both the U.S.-Kenya bilateral relationship and prospectively even to the future strength of the ICC. Much is at stake and the United States must weigh its commitment to human rights against the overall political, economic and security relationship it has with Kenya. And the ICC has another sitting president to prosecute in The Hague, and history suggests that is a difficult proposition.