International Justice

CJ354 Endicott College

Kenya’s Election and the ICC

Uhuru Kenyatta and William Ruto, two presidential candidates in Kenya’s upcoming elections, are both facing charges by the ICC for crimes against humanity committed during the post-election period of 2007 and 2008. As a signatory of the Rome Statute, Kenya is obliged to cooperate with the ICC, despite the fact that Kenya’s constitution gives immunity to Kenyan presidents from prosecution. In addition, both candidates have been cooperative with the ICC thus far, and state their intention to continue to cooperate in the future. Despite these positive signs of progress, there is still some concern over transitional justice in Kenya. With the elections to be held in March 2013 and the trials to begin the following month, Kenya has repeatedly requested a deferral of the cases (which the ICC has denied).  The ICC has also accused Kenya of being uncooperative and delaying responses to the ICC’s requests for assistance.

As Leebaw writes, international courts and tribunals “may override national conflict over the question of whether to ‘punish or pardon,’ yet debates over ‘whether to cooperate or not to cooperate’ may still undermine the goals of these institutions in important ways” (Leebaw 103-104). Despite Kofi Annan’s praise of Kenya’s reforms and mechanisms for addressing future electoral disputes, a lack of cooperation with the ICC may risk furthering a culture of impunity. With the election set to occur before the trials, there will be no set example of sentencing to deter future violence, especially if the outcome of the election is again contested. In addition, if either Kenyatta or Ruto are elected and convicted, Kenya will face new political challenges. Will a conviction override voters’ feelings towards their president-elect? What kinds of consequences will this have for reconciliation? How could a Kenyatta or Ruto administration (even if the president himself were unable to serve) properly address acknowledge the crimes of its leader, yet also move forward without destabilizing the country again?

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3 responses to “Kenya’s Election and the ICC

  1. Alana Tiemessen October 12, 2012 at 3:33 pm

    A great post and an apt quote from Leebaw. Kenya is a really challenging and interesting case for the ICC, in part because Kenyan authorities are cooperating with the Court in some ways but resisting in others. It’s a real test of the ICC’s “complementarity” principle, where the ICC can only step in as a last resort. Arguably Kenya has the ability to conduct these trials but lacks the political will to do it fairly.

    The ICC’s intervention has also had a big impact on domestic politics and the campaigns of these two presidential hopefuls. It has raised the questions about the degree to which the Court can be indifferent to domestic politics.

  2. mjbarnes1 October 14, 2012 at 11:18 pm

    This is a potentially diabolical situation for the International Criminal Court, particularly because of the African bias allegations that continue to surround it. Since the first multiparty elections were held in 1992, Kenya has slowly been moving towards a genuinely democratic society with free and fair elections. Although the 2007 elections were widely viewed as ‘flawed’, which was the catalyst for post-election violence, the 2002 elections were perceived as free and fair by impartial international observers. These elections were also significant because it was the first peaceful power transition between parties since Kenya’s independence from the British.

    My emphasis on previous elections is important because if Kenyatta or Ruto is elected president in democratically free and fair process, this provides a mandate of support from the majority of Kenyan voters that consequently makes cooperation with the ICC less probable (a rather pessimistic but likely view considering Kenya has already tried to withdraw from the Rome Statute since the indictments were issued). The ICC’s continued prosecution would, therefore, directly challenge the sovereignty of Kenya and help to strengthen criticisms that the court (in particular, ICC Prosecutor Luis Moreno-Ocampo) is anti-African as it seems not to pursue Western criminals with the same tenacity (all cases currently before the ICC deal with crimes committed in Africa). This anti-African sentiment would in turn reinforce attitudes of non-cooperation amongst African states making justice even more difficult to achieve.

  3. indraswb October 16, 2012 at 10:27 am

    This situation begs the question of when is an ideal time for prosecution. Cohen’s delineates the possibility of trials as having an effect on reconciliation, accountability, and the promotion of respect for the rule of law; in my view, it is a zero sum game between these three factors that determines the efficacy of the tribunals. The existence of tribunals themselves should satisfy the notion of accountability, but as SPSC showed, its relatively quick establishment came at the cost of serious resource deficiencies that “affected the quality of courtroom proceedings and thus had a direct impact upon the right of the accused to a fair trial” (Cohen). These shortcomings, which also included inadequate counseling for witness victims, thus detracted from promoting respect for the rule of law and jeopardized the rehabilitative aspects of reconciliation which it meant to pursue.

    However, when we consider ICTY, rule of law and accountability was better accomplished, albeit slowly, in the eventual transition of cooperation from Tudjman to Racan to Sanader. The wait for punitive outcomes undermines immediate psychological reconciliatory needs. As Peskin argues, “the origin and structure of ad hoc tribunals prevent victor’s courts” necessarily; but does not sufficiently address victor’s justice when Croatian administrations did not comply in the arrest of indicted generals.

    In Kenya’s case, sentencing the president-elect will assert demands for reconciliation and accountability, but results in an awkward foreign interference of respecting democratic law.

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