Friday, 15 February 2013

A note to diplomats on Kenyatta, the ICC and the presidential race

There are two levels to the debate over the International Criminal Court's (ICC) trial of Uhuru Kenyatta for crimes committed in the post-election turmoil of 2007/8. One level is domestic and the other international. The international is of course important for diplomats, but it is crucial to bear in mind how it fails to have much impact on domestic discussions because most Kenyans have either come to distrust the motives of the ICC or feel that, for it to have been fair, Raila Odinga should also be under trial for his role in mobilising violent protests in 2007/8. Regardless of the truth of these claims, it is important not to underestimate the sense in which the ICC has been politicised in the eyes of many Kenyan citizens. This is made especially easy by the fact that most on-the-ground experiences of courts in Kenya are that they are open to corruption and political pressure. The judiciary is changing for the better, but this does not bring trust in judicial bodies overnight. In this way, the image of the ICC suffers from domestic experiences of miscarriages of justice.

Whilst Kenyatta is able to uphold a spirit of full complicity during this election campaign, there is support he could draw on if he came to power that would allow him to change his mind and stop complying. It is likely that Kenyatta would reverse his position of support for the ICC process if he were to take office, involving something like a domestic review of the Rome Statute together with the simultaneous creation of a local court. To facilitate this process, he might delay participation with the current ICC trial and continue a suspected tactic of eliminating witnesses due to appear against him (see the BBC article here; for Kenyatta's original request for witness identities, see this article). This process would last until either the trial finds no evidence to stand on, or a local court has sufficient credibility in the eyes of political supporters of Kenyatta to justify a departure from the ICC.

In terms of statements by international actors and diplomats against Kenyatta being free to stand for office in the election on 4 March, these are unlikely to get weaker for two reasons. First, the more comments that are made, the more this will be framed as a West vs. Africa confrontation which, if pursued, would just play into the hands of Kenyatta. The second is that, in my opinion, Odinga is much more likely to win this presidential race, and polls may bear that out in the two weeks preceding the second round run-off. This will give diplomats reason to "wait and see" who wins, before they use up their political capital.