By Keith Somerville, Senior Research Fellow, Institute of Commonwealth Studies & Politics and International Relations Department, University of Kent
Kenya’s new president, Uhuru Kenyatta, has moved quickly to stress that he will govern on behalf of all Kenyans and that he and his government will try to adopt a new approach in which national resources will be used for development and service delivery rather than supporting a bloated government bureaucracy. His first major move has been to cut the number of cabinet posts from a staggering 44 down to 18. But as he settles in at State House he has something else on his mind, and something that worries other African governments, the Commonwealth and Kenya’s allies and aid donors in Britain, the United States and the European Union – his impending trial on charges of crimes against humanity at the International Criminal Court (ICC) in the Hague.
And it is not only the president on trial, is vice-president, William Ruto, is too, along with a leading Kenyan radio broadcaster, Joshua arap Sang.
The ICC trials, a result of the failure of the previous Kenyan government of Mwai Kibaki and the Kenyan judicial system to act decisively to prosecute those accused of organizing the post-election violence in 2007-8, were delayed from April because of the elections and of the need for prosecutors to firm up their cases. Uhuru Kenyatta’s trial is due to start in July – though a precise start date has yet to be announced. A big question is whether Kenyatta, as William Ruto is trying to do, will attempt to persuade the court to allow him not to attend the trial but to be available by video link for questioning and defence statements. The defeated presidential candidate in the recent election, Raila Odinga, repeatedly made the point that a president cannot govern adequately from thousands of miles away via phone or Skype while on trial. And it was a good point. If the ICC requires both Kenyatta and Ruto to be in The Hague for the duration of their trials, who governs? But if they refuse to attend, what does the ICC do – does it order their arrest and then, who in Kenya is empowered to make the decision to arrest the chief executive and his deputy?
Non-appearance at the trial and an arrest order would create a huge problem for Kenya’s donors, and organizations like the African Union and the Commonwealth. But if the trial starts and if Kenyatta and Ruto do appear, would Kenya’s two paramount political leaders be able to attend summits and would they be welcome? If they launch a long series of legal delaying actions or try to get the ICC to postpone the trials unti, they leave office, how will they then stand internationally?
A big question is whether Kenyatta or Ruto would be welcome as indictees at the Commonwealth Heads of Government Meeting in Colombo in November? That meeting is already controversial because of Sri Lanka’s human rights record. The last thing Commonwealth leaders will want is the complex issue of attendance of an ICC indictee hanging over the meeting, too. If Kenyatta goes to the Hague for the trial, it is likely to run for many months, even years – how would a president on trial or fighting the ICC be received at CHOGM?
It is a difficult decision, especially because of a bit of history between the ICC and the Commonwealth. In October 2010, the ICC rebuked Commonwealth seceretary-general Kamalesh Sharma for appearing to question the duty of states to arrest those charged over human rights abuses. A letter sent by the ICC to Sharma revealed a rift between the ICC and the Commonwealth but also suggested one within the Commonwealth Secretariat, over its approach to human rights. Mr Sharma had argued that the court did not have a duty to speak out over abuses by member states. The disagreement began in August 2010 when Sudan’s president, Omar al-Bashir, indicted by the court for genocide and crimes against humanity, visited Kenya amid much controversy. As an ICC signatory, Kenya was required to arrest Bashir. But the African Union position is to say that common AU membership overrides the ICC indictment. Kenya’s failure to do so drew criticism from both the court and European governments but was supported by the AU. The Commonwealth head seemed to support the AU position, to the horror of the ICC.
But in July 2011, the Commonwealth clarified its support for the ICC when a memorandum of understanding was signed by Judge Sang-Hyun Song, the ICC president, and Kamalesh Sharma at the Commonwealth Law Ministers’ Meeting (CLMM) in Sydney yesterday (13 July). At the signing, Song made clear the support it expected from the Commonwealth, when he said, “National jurisdictions are the first line of defence against impunity for mass atrocities. The ICC is a safety net, a court of last resort. For justice to prevail, we need to develop the national and international elements in parallel. The Commonwealth is uniquely placed to facilitate that process.” Sharma said the ICC played a central role in achieving justice for victims and preventing impunity for genocide, crimes against humanity, war crimes and other forms of aggression. He said the agreement between the Commonwealth and the ICC would help promote the rule of law on the domestic front through capacity-building measures in international humanitarian law and international criminal law. Having taken this step to reaffirm support for the ICC’s role in preventing impunity for political leaders, Kenya’s ICC trials could become an embarrassment for the Commonwealth and key member states.
During the March election, comments by the British High Commissioner to Kenya, Christian Turner, that it was British policy that its ministers and government officials should not meet anyone who is facing charges for international crimes brought a strong rebuke from Kenyatta But it is undeniable that his elections causes problems for supporters of the ICC process. High Commissioner Turner had explained the position that, “The electoral matter is a Kenyan affair. But neither myself nor other government ministers talk to or engage with indictees.” At Kenyatta’s inauguration, Turner was present but no government minister representing Britain (or other leading non-African Commonwealth members such as the Canada or Australia – or the USA for that matter). What happens if Cameron and Kenyatta meet at CHOGM – no handshake, as with Mugabe, or diplomatic musical chairs to prevent them being in close proximity?
If the ICC case against Kenyatta and Ruto collapsed – as happened with the case against former civil service head Francis Muthaura – it might be convenient for Kenya’s friends and international organizations of which it is a member. But if it collapsed, as Muthaura’s did, because witnesses were too scared to testify or recanted earlier testimony, fearing the consequences of testifying, there would be serious questions of witness intimidation and a cloud over the presidency. Uhuru Kenyatta, unlike Sudan’s Bashir, has said he will cooperate with the ICC – but has not said definitively what he will do if ordered to attend the trial in July. This case is very necessary to end the idea of impunity of politicians in Kenya, but it is throwing up a complex series of questions for the ICC, Kenya, and Commonwealth members to answer over the coming months.