Kenyatta, Ruto and the ICC: major diplomatic earthquake in the offing – By Richard Dowden

Everyone is so relieved that the Kenyan election this year did not result in a repeat of ethnic violence after the 2007 election, that we seem to have forgotten that both President Uhuru Kenyatta and Vice President William Ruto have been summoned to appear at the International Criminal Court in The Hague charged with crimes against humanity.

This week Kenyatta was invited to London to attend the conference on Somalia, Kenya’s troublesome northern neighbour. Everyone else charged with crimes against humanity by the ICC has been arrested on sight and locked up to await trial.  But instead of slipping on the handcuffs this week, Mr Cameron grasped Mr Kenyatta warmly by the hand and welcomed him to London. He argues that Mr Kenyatta is cooperating with the court. That remains to be seen. Kenyatta must report to the ICC in The Hague on July 9th, Ruto on May 28th.

There are precedents here. Mrs Thatcher embraced Augusto Pinochet of Chile, another murderous dictator but one who helped Britain during the Falklands war, because he too was an enemy of Argentina. And Tony Blair embraced Colonel Gadaffi when he dropped his nuclear programme. But their crimes were committed before the ICC was established.

No one seems to have thought about the possibility that a murderous warlord might be elected president of a country which is a close ally of Britain and the US and vital to the security and prosperity of East Africa. When Britain and 121 other countries ratified the Rome statute establishing the ICC (a further 31 signed but have not yet ratified), it was assumed that states would cooperate with the Court. No one envisaged a situation in which someone indicted for crimes against humanity would be elected president.

So will Kenyatta and Ruto dutifully surrender themselves to the court on their appointed dates? Will they then continue to try to run Kenya by skype from a cell in a Dutch prison for the next few years? Unthinkable. Even if they agreed to go, Kenyans – including the middle classes – will lie down on the road to the airport to prevent them going. Never mind that Kenya was given the choice to hold them to account in the Kenyan courts but failed to do so.  Never mind that Kenya’s international treaty obligations oblige the country to deliver them to The Hague. Never mind that both should already have been arrested by the Kenyan police and put on a plane, delivered to the court and locked up. They are not going to go.

When Kofi Annan issued the names of those culpable for the murder and mayhem that tore Kenya apart in 2008, he gave them a choice of going to The Hague or being tried in Kenya. Both Kenyatta and Ruto argued in favour of The Hague rather than the Kenyan courts, believing that somehow it would never happen. When The Hague issued summonses they went swiftly into reverse. Too late! Then they argued that they did not have to come in person. Extraordinarily, given that they are accused of crimes against humanity, no arrest warrants have been issued by the Kenyan state or anyone else.

Many Kenyans believe that the charges will be quietly dropped. They believe that Western governments control the Court and it will do their bidding. President Obama and or Prime Minister David Cameron, they believe, will simply phone up the International Criminal Court and tell it to drop the charges. That belief will be strengthened by the sight of Mr Cameron greeting their president in London this week.

I used to think that Britain’s obligation to the ICC would trump its relationship with Kenyan politicians but now I am not so sure. Either way a major train smash is on the way. I cannot see any way of avoiding it. It’s either the end of the ICC or a deep rift between those committed to the ICC and Africa. It sounds like a perfect opportunity for China – another ICC non signatory – to strengthen its already dominant new position in Africa.

Western countries, Britain in particular (being Kenya’s closest ally outside Africa) are faced with a hard choice: abandon the ICC or isolate their closest political and security ally in East and the Horn of Africa. Britain and western countries benefit hugely from a stable, prosperous Kenya. In Mombasa Kenya has the best port on the western Indian Ocean. 5000 Kenyan troops are in Somalia helping to restore peace and Britain is taking the lead in establishing a legitimate government there. A huge space in northern Kenya is also the British army’s training ground for hot weather warfare. British troops heading to Afghanistan spend time acclimatising to hot conditions and training there. And Britain wants economic success stories in Africa. Kenya has a dynamic economy and has just discovered oil. Five of the top ten tax paying companies in Kenya are British and economic ties are strong. At a time of fragile security in the whole of the Horn of Africa as well as the growing economic influence of China in the area, is this the moment to put Kenya in the deep freeze?

Against this argument is the demand for a system of international justice where politicians are no longer above the law and can hire gangs of thugs and hit-men to destroy their opponents. In Africa however there is a strong feeling that the ICC is specifically targeting those from the continent. The vast majority of those convicted by the ICC and its affiliates are indeed African. The only president facing trial is Omar Beshir of Sudan who has been charged with crimes against humanity in Darfur. There was once talk of sending snatch squads to capture him but he travels around Africa freely with no threat of arrest in most countries.

So what will happen? Unless anything changes, when Kenya fails to deliver those charged to The Hague it will be punished by international sanctions. As Johnny Carson, the retiring United States Assistant Secretary of State for Africa, said “choices have consequences”. America’s president may be half Kenyan but he is not sentimental about it. Contact with Kenya by countries who have ratified the ICC charter will be reduced to a minimum – essential business only. The President and Vice President of Kenya will be unable to travel except to countries that do not recognise the court. Aid to Kenya, including training the Kenyan armed forces, will be cut. British and US naval ships will stop using Mombasa port. Kenyans will find it harder to come to Europe and the US.

The fact is that the Kenyan elite – like many in Africa – simply do not recognise that they are subject to the law. Politically powerful, exceedingly wealthy and above the law, no state official would dare touch them. Throughout the years they have regularly looted the state through scams such as Goldenburg and Anglo Leasing but not one of them has been sent to jail. That is why the rest of the Kenyan elite have rallied round and supported them in the name of nationalism fighting off “British colonialism”.

There are some manoeuvres that Kenyatta, Ruto and the others accused can deploy to delay their trials. Kenya could repudiate the treaty, withdraw from the court and refuse to send those accused for trial. There is widespread demand in Kenya and elsewhere in Africa to withdraw from the ICC but under international law that would not affect the cases already started.

After that the options narrow. For example under Chapter VII, the UN Security Council can adopt a resolution requesting the Court not to commence an investigation or prosecution for up to 12 months. Kenyatta and Ruto have both requested a delay in the beginning of the trial and asked if they can appear by video link or that the trial is held in Kenya or Arusha (Tanzania). The court is looking at a request for delay in Kenyatta’s trial until November but it looks unlikely to bend on other issues. The larger threat is that witnesses will be prevented from attending. At least two key witnesses in the Kenyatta case are reported to have either disappeared and are believed to have been murdered. Others have withdrawn their statements. The case might collapse.

The case against Ruto is said to be much stronger. Ruto is the Kalenjin leader and the worst killing that took place in 2008 was between Kalenjin and Kikuyu. Kenyatta and Ruto then established an ethnic alliance which made sure the war between them did not break out again and their combined numbers would secure electoral victory. But if Ruto goes to The Hague but not Kenyatta there may be war between the two groups again.

Whichever way you look at it a major diplomatic earthquake is about to happen.

Richard Dowden is Director of the Royal African Society and author of Africa; altered states, ordinary miracles. For more of Richard’s blogs click here.

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27 thoughts on “Kenyatta, Ruto and the ICC: major diplomatic earthquake in the offing – By Richard Dowden

  1. Truth is, many people here, myself included, don’t even take the ICC very seriously anymore because:
    i. They think the ICC only dared to touch Kenyatta and Ruto because they did not hold too much power in government at the time. People think the ICC is too scared to really go after the “big boys”. It would cause too much chaos and disorder.
    ii.People think the ICC has double standards indicting only Africans. The ICC’s credibility has seriously gone down.

  2. Excellent piece. I however think there is highly likelihood that both ICC cases will collapse because witnesses will change their minds about what they recall as their relatives are coerced with money or insecurity…
    That would be a shame because PEV was organised, planned and executed by some powerful Kenyans

  3. Good article. Just a slight correct. Kenyatta and Ruto both voted in favor of a local tribunal and not the ICC option. The hansard vindicates them. However their lieutenants voted for the ICC option…. one can decide to read between the lines!!

  4. Richard,

    First and foremost excellent piece. I however take issue with several assertions in the peace. Firstly, the assertion that many people in Kenya and Africa in general want to withdraw from the ICC is not based on any substantial evidence other than the views of ICC critics. Secondly, Kenya is an ethnically polarized society. You err when you gloss over the central reality. You therefore refer to a ‘Kenyan elite’ that rallied around the President when the truth is a little more complex simply because the political elite is not united.

  5. very sad that the director of the royal African society still holds a colonialist world view: what about the crimes committed by western governments? your constant assumption is West good/Africa bad= West judge of Africa. But it can’t withstand any empirical of didactic argumentation. As long as citizen of the world are not equal there cannot be a world body dispensing universal justice (Gustav Radbruch: kein Weltbuergetum/kein Weltgericht).
    No mentioning about the Belgian ICC Judge who choose to quit the court because of malpractices? I see a new form of communism here in this legal-extremism where in the name of Human Rights other fundamental Human Rights like equality before the law and presumption of innocence, right to self-determination are violated in the name of an en-lighted clique composed of rent holding African and Western Elites. For the average African citizen what counts is better living conditions not ICC. Justice is not pronounced in a vacuum, there checks and balances but also a constituency and all this is absent for the ICC.

  6. Dowden, this is an interesting analysis of the Kenyan situation and the ICC judicial process.

    The dynamics are true and point to what is happening. However, while it is true that largely the ethnic voting process dictated the outcome of the March 4th elections,plus the mobilisation that was largely against the ICC, the State’s interests might as well dictate otherwise. This might be either Kenya, Britain and even other States. Further the emerging geopolitics in the region might as well play a major role and dictate otherwise, with the competition on economic fronts. Also keen to follow up is the push for the Kenyan cases to be heard in Arusha.

    Lastly, with changing times, the diplomatic earthquake might as well play out in various forms than unanticipated although the attention should always remain on the victims of the 2007/8 events.

  7. This article, like most written on Africa (by westerners) fails to grasp the complexities of the continent and reduces itself to the standard and simplistic analysis that is displayed here. What is that analysis?

    That analysis seeks to define Africa’s complex tribal societies into a simple good guy vs. bad guy paradigm. Ignoring (or maybe not recognizing) that very often, these conflicts are created, nurtured and under-taken by many forces at the same time. Shades of grey exist everywhere.

    The fact that 6.2 million Kenyans stood in line for up to 8 hours to vote for Uhuru and Ruto is totally lost on this author. However, those Kenyans who were most affected by the violence, understood that the story line was not as simple as good guy vs. bad guy. This complexity was something Yoweri Museveni also understood.

    The west, using it’s simplistic analysis, tried to force the Kenyans to vote for THEIR good guy (Raila Odinga) but the Kenyan people knew that Raila was not that good and they rejected this story line because they know (more than any other foreigner) what their country is about.

    The path to modernity is not paved with white lillies. It hasn’t been so for Africa and it hasn’t been so for the west — just look at it’s violent history (WWI, WWII, brutal colonialism, The Iraq war where almost one million have been killed, The vietnam war, which led to the rise of Pol Pot, the Falklands war)

    So, who are you to lecture Africans when your own countries path to modernity is filled with rivers of blood?

  8. I’m surprised indemarugamba could answer the math question required to post a comment.

    Ignorance and arrogance aren’t African values.

    The ICC didn’t just fall out of the sky, Kenya signed and ratified it. It was entirely voluntary. Quit crying please.

    I think this article is realistic … not “colonialist” … look back 50 years and ask kenyans if this is colonialism … they’d laugh your complaints away.

  9. Embarrassing. How simplistic! Where is the complexity, nuance and proper contextualization of events in this article and others on the same subject. The elephant in the room, is the fact that whatever Uhuru is accused of doing, was within the context of self defense by a community that was facing the threat of annihilation. The rhetoric and spontaneous or organized violence that was rapidly spreading across the country warranted some kind of response that would force everyone to the negotiating table. I do not endorse violence, but surely, how can we have an intellectually honest and productive conversation on these matters when the details that inform our judgement are selective. Kenya has landed on a political solution to a political problem, and the judicial process should at a minimum take that political context into account, even the kids know this. We ignore this context at Kenya’s expense.

  10. Richard, put yourself in the shoes of the accused persons and imagine for once how you would like to be treated if you knew you were totally innocent. There is a very real possibility that the evidence given to ICC was fabricated. With that in mind, just imagine how cheap your article appears to those who are open minded!

  11. As a Patriotic Kenya and One who believes in the rule of law . This very debate is very distressing . As a Kenyan who has understands the complex community dynamics this ICC is an egg inside a torn basket .
    I am a firm believer what we are witnessing is Kenya is Economic driven some sort of muscle dynamics between the east and west . The real losers are Kenyans who have very little they can do to save the country.
    The west has seen its share of history and political revolution without interference it is time you allowed Africa to grow.

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  13. The victims of the 2007/08 clashes are Kenyans primarily from the Kikuyu, Kalenjin and Luo communities.

    The Kikuyus and Kalenjins either do not believe that Uhuru and Ruto were responsible for the violence or have already forgiven them for their perceived involvement and chosen to move on. That is why millions queued to vote for the duo.

    The Luos have not been friends with the Kenyatta’s since the 1960s. I however doubt that any Luo would have named Uhuru as one of the main perepetrators of the post election violence. That is until Moreno Ocampo named him. Before Ocampo, most would remember Uhuru standing on top of a pick-up truck urging Kikuyu youths not to take the law into their hands.

    Following the naming of the then ‘Ocampo Six’, we have as Kenyans waited for evidence against Uhuru, evidence to show that he is the monster that ICC paints him to be. All we have heard to date is that Uhuru, Kibaki and others met the Mungiki at Statehouse and in a public mall. But this evidence is all hear say presented by witnesses we either do not know or for those we now know, it is because they have admitted to having lied.

    Based on the above, millions of Kenyans voted for Uhuru and Ruto and do not care whether you approve it or not. That is unless you can show as proof of their culpability.

  14. A point of correction;

    They cannot be arrested unless a warrant of arrest has been issued,which only happens if they fail to obey the court.Please check your facts.

  15. The violence of 2007/2008 was madness fomented by tribalism. Tribalism is the basis for all Kenyan politicians hoping to win an election, and the alliance between Kikuyu and Kalenjin is what won the most recent election.
    But politicians and the government overall, are responsible for the lack of economic opportunities for youth. The violence was orchestrated, but it was easy to whip up anger in environment where people don’t have attainable aspirations.
    The root of the political tribalism in Kenya was colonialism, but colonialism and western influence are not sufficient to explain the lack of punishment for corrupt politicians and other elites since 2002. Western influence should decline in Kenya, particularly from the aid industry, because Kenyans can make these resource allocation decisions. Prioritizing efficient institutions could lead to a transition from tribal politics to meaningful policy differentiation.

  16. Kenya voting is based on ethnicity and not on ideology nor integrity of personalities. To suggest that 6.2m people[figure contested] voted for uhuruto because they believe they are innocent and Raila is the bad guy is a figment nm,s imagination and nothing could be further from the truth. If Raila today is accused of crimes against humanity but makes it to the ballot he will still get the numbers from his tribal bases…and thats the FACT.

  17. The integrity of ICC and the prosecutor are at stake in this case. An impartial and honest prosecutor should terminate his/her case once they discover that the evidence they are holding are not truthful( read the Strauss Khan case vs. the New York Maid), this opportunity has presented itself to the prosecutor on several occasions (Ali, Kosgey, and Muthaura cases) but it seems their interest are elsewhere.

    We all watched the confirmation hearings and were stunned when the prosecutor used newspaper cuttings and personal opinions as evidence.

  18. Embarassing is the word! This article does not take into account one very simple fact that any serious commentator would consider before writting:

    1- The ICC IS NOT ASKING FOR RUTO TO BE ARRESTED and never did. From the start of the process, Ruto complied willingly to the orders of the court. That makes the comparison with Pinochet shamefull for the author.

    Cries of outrage are irrelevant in that case. I was accustomed to read less simplistic analysis in the African Arguments. Hope this is an accident!

  19. Actually, they have not failed to turn up in court. There is no warrant out for their arrest. It hasn’t got to that stage yet.

  20. I just wonder about the case of bush who lied to the world about weapons of mass destruction, his war led to death and displacement of thousands yet the same has naver been investigated when the facts are so clear for all to see.Am a kenyan who was present in 2007/08 and to be honest the ICC never conducted any investigation, they just adopted civil society reports which of course had their own agendas am just waiting to see how the prosecutor will prove th same.Richard goes on to suggest that perharps david cameron should have arrested mr kenyatta, Icc has never issued a warrant of arrest for any of kenyan suspects perhaps in Richard`s court kenyan suspects are guilty till proven otherwise.The author is right on one thing, majority of those who voted for kenyatta come from his and ruto`s tribe but Raila and his running mate too were supported by their trbes almost to the last man.Its apparent this article is meant to vent frustrations on kenyans for voting against the wishes of some self righteous individuals.

  21. I think the piece reads like emotional wishful thinking. When the Politics is adverse, the ICC has generally gone absolutely nowhere, and that is what will happen again. Whether arrest warrants are issued or not, they will certainly not be enforced. Instead, the procedures of the ICC will be altered to allow exceptions. It will be uncomfortable for Kenyatta, but unlikely to matter very much.

    It really is a shame though that African Elites tend to think this is a new colonialism. Colonialism was marked by Europeans and Arabs oppressing the masses and promoting a thin elite. This is a very different new “colonialism” if the focus is on preventing the elites from murdering the masses. It is obvious why the US is not pestered by the ICC: they are not a signatory. That is of course a traversty of justice in itself, massively undermining the court, but it is not bias in the court that makes it so.

    For those who say the author is being simplistic, I think they rather miss the point. The issue the author is dealing with is whether or not a crime has taken place, and the implications for the ICC (and Kenya) of a lack of political support in and outside Kenya for the Judicial findings. Whether the issue of committing those crimes should be set aside on some “reasonable behaviour” criteria is a political consideration and not a judicial one.

    It is also absurd to ask the author or indeed the court to present the evidence before the hearing to drum up political authority for the hearing in the first place. The whole point of the hearing is to present the evidence. If the court needs to present the evidence before having a hearing then the judicial process would have been turned on its head.

    As a half-African, half-European, I feel I can deplore all sides for lack of logical structure. The ICC crisis has been a long time coming. The decision of the US not to become an ICC signatory was a fatal flaw. The failure of the institutions of the ICC to realise that justice can only be accommodated within political constraints was an act of liberal bourgeois arrogance. That the author, a noted expert on Africa, does not recognise this, when it is a key issue across all emerging markets is remarkable.

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  23. It is sad that so many Kenyans are seemingly still unable to see that their country exists within the context of a much bigger world.

    Whatever the validity or credibility of the evidence, there IS a case to be answered by Kenyatta and Ruto. To pretend that they are too powerful to need to answer this case is foolishness.

    Too many Kenyans, no matter how sophisticated the country has become in so many other ways (a world leader in things like innovative use of mobile phone technology), too many are still villagers in their heads, unable to look beyond a very small area to the wider world.

    By failing to answer the charges (if they are innocent what do they have to fear?) Kenyatta and Ruto will cause serious harm to the country they have been elected to serve. The harm will not be caused by the ICC, but by these two men, and their self-blinkered toadies.

    Kenya has a chance to prove itself a strong and creditable country … why do I fear that Kenya will fail to do so? Why will Kenyans continue to bow down to, and be bought off by, their own elite? When will Kenya be confident enough to be the great country it could be?

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  26. This is an excellent and realistic article…just to correct one thing, actually Kenyatta and the other suspects wanted a trial in Kenya or somewhere close to their home (Tanzania). They filed an application asking to change the place for trial and it was rejected by the ICC..
    There is no doubt, as the author points out, Kenyatta’s presidency puts the ICC in dilemma.You can not simply expect Kenya’s BIG western friends to push for the trial any longer. Arrest Kenyatta and the Kenyan people will resort to more deadly violence than that which is the subject of the charges, plus putting the interests of US and UK at risk. Let him go free and there is a precedent,it only confirms that only those who go against the interests of the big powers get prosecuted.This claim of bias and selectivity within ICC existed already even before the Kenyan trials. And to expect a domestic trial is simply unimaginable. I guess the Court will have to find an excuse to drop the case

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