International Justice

CJ354 Endicott College

Tag Archives: Kenyatta

Kenyatta apologizes to Kenyan public for past wrongs

President Uhuru Kenyatta of Kenya delivered an official apology to the Kenyan public during a state of the nation address this past Thursday. He apologized for the wrongs committed by his own government and of governments past, mentioning the post-election violence of 2007-2008, as well as the 1984 massacre of hundreds of Kenayan-Somalis.

The International Criminal Court just recently dropped charges against President Kenyatta for warcrimes committed during the period of post-election violence because of a lack of evidence and cooperation by the Kenyan government. But, the report by the Truth and Reconciliation Commission in Kenya “recommended that the president apologize to the public within six month after receiving it. Kenyatta received the report on May 2013”.

During his speech, Kenyatta announced that he had requested that the Ministry of Finance set up a fund of $110 million to be used throughout the next three years for “restorative justice”. President Kenyatta has yet to announce what exactly he plans for the fund to do or accomplish, but it is his first public apology for the crimes committed following his election.

The apology earned Kenyatta a standing ovation from the members of Kenyan parliament, although the reactions of the public have been mixed. Some do not accept the apology at all, while the majority tend to feel that it is “better late than never”. Apologies can provide the acknowledgement of past atrocities that is important for rehabilitation of a society and victims, but it will be interesting to see the true impact of Kenyatta’s statements, if any at all.

Witness Intimidation and ICC Processes

The Kenyatta trial, already one with far reaching implications for the ICC judicial process, in terms of indicting a sitting head of state, has been hit with further complications as witnesses have withdrawn testimony, withdrawn all together or disappeared. Fatou Bensouda says it is because of “unprecedented intimidation”, resulting from bribes and threats to not testify.

With every dropout, the ability of the case to stand diminishes. The collapse of the trial would also do away with the African Union’s issues with the trial. But this case is not just important in isolation, for the people of Kenya and so forth. It is important for precedent, and for the ability of the ICC to act as a deterrent to sitting heads of state not to commit crimes against humanity. It is no surprise, then, that Bensouda has not given up.

Bensouda’s final throw of the die is to gain access to Kenyatta’s financial records, but it seems that only a Kenyan court has the authority to do so. A clear problem, since few judges would have the courage to actually release his records.

With a court system that is so young, every case has far reaching implications, setting specific precedent and so forth. This, though, has a potential to weaken the powers of the ICC (or at least, prevent them from becoming a deterrent to sitting heads of state) and thus it is vital from this standpoint that the ICC push on and hopefully present Kenyatta’s case.

Kenyans’ Domestic Perception of the ICC

Since arrest warrants were issued for Kenyan President Kenyatta and Deputy President Ruto in 2011, there has been much debate about Kenyan public perception of the International Criminal Court’s intervention.  In 2007 and 2008 political violence surrounding President Kenyatta’s election ensued– over 1,000 people were killed, over 3,000 were injured, and hundreds of thousands more were displaced.  The ICC’s decision to investigate these crimes now serves as one of the key points African Union states point to in their criticism of the ICC’s alleged “Africa bias.” Leaders from many African nations, but in particular from Kenya and Uganda, accuse the court of unfairly targeting Africans in its investigations and prosecutions.  Kenyatta’s case is one of two in which an active head of state has been indicted by the court– the other is an indictment of Sudanese President al-Bashir. Although Kenyatta seems largely to be cooperating with the ICC, his fellow leaders continue to be critical and outright hostile towards the court. A somewhat less examined topic is public perception of the ICC’s decision to intervene. uhuru+ruto+cabinet

According to recent reports, Kenyan public perception is split. An “element of fatigue” seems to be prevalent among Kenyans.  They are tired of what has become a 6 year investigation process. Most surprising, however, is that this “fatigue” is present even among victims of the violence. They are, “accepting the narrative purveyed by national leaders – that they should accept what had happened and move on.”  There is not public consensus, however, that justice and reconciliation are unnecessary. Many advocate for “justice in whatever form,” including, especially, mechanisms for reconciliation.  Indeed, because the alleged perpetrators are still in power, there is no question that victims must continue to live within the system orchestrated by those who committed crimes against them and their families. Potential public fatigue with the ICC and criminal prosecutions, as well as the entrenched power of alleged perpetrators, point to a severe need for serious reconciliatory justice.

The ICC in Kenya

ICC Prosecution Accuses Kenya Government of Withholding Evidence

This week, the ICC prosecutor publicly accused Kenya’s government of withholding evidence relevant to the court’s investigation in the country. In 2007, post-election violence killed 1,200 and displaced 300,000-500,000. The ICC opened its investigation in the wake of Kenya’s own failure to prosecute those most responsible as per the peace agreement. The court has issued indictments for three perpetrators from each side of the conflict; among these are current president Kenyatta and deputy president Ruto. While Kenyatta and Ruto are voluntarily standing trial, this case shows many issues with prosecuting a sitting head of state. It has provoked hostility to the court from the African Union, where Kenyatta is popular and intrusions on sovereignty are feared. Both Kenyatta and Ruto wield extensive power in Kenya; they are often absent from their hearings, and there have been accusations of intimidation and bribery of witnesses. The new accusation of withholding testament is a further demonstration of this power. While the voluntary cooperation of a sitting head of state in an ICC investigation increases the court’s legitimacy, officials’ ability to obstruct that same investigation undermines this achievement.

Deferral Worthy? Kenya and the ICC

Deferral Worthy?

Should Kenyatta’s case be given deferral by the Security Council Under Article 16 of the Rome Statute?

At the 12th ASP meeting last year, Uganda’s minister for Justice and Constitutional Affairs, Mr. Frederick Ruhundi stated that Kenyatta’s case should be granted deferral by the UN Security Council. Ruhandi argued that the Kenya’s decision to elect Kenyatta should be respected and he should be granted deferral while he still holds office. This power of the security council to defer cases is granted under Article 16 of the Rome Statute. Article 16 allows the UN Security Council to pass a resolution under its Chapter VII authority to defer an ICC investigation or prosecution for a renewable period of 12 months. Article 16 states in full: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the court to that effect; that request may be renewed by the Council under the same conditions.” Chapter VII of the UN Charter empowers the Security Council to take measures to “maintain or restore international peace and security” if it has determined “the existence of any threat to the peace, breach of peace or act of aggression.”

While several occasions have arisen over the years where states have argued that deferral under Article 16 of the Rome Statute of an ICC investigation was necessary, the Council have never yet used its power of deferral. In Kenyatta’s case, while I do understand the argument in support of his case’s deferral, believing that his case should be put on hold until his presidential term is complete, it at the same time sets a bad precedent for Article 16 and the role of the ICC. Under the statute, article 16 deferrals should only be granted by the Security Council when a case is believed to pose a threat to peace and security. If they were to grant Kenyatta’s case worthy of this, it would send the message that State’s have ultimate authority over the court. Additionally, it sends the message that a State can simply threat violence or outbreak if the court does not grant their wishes. This would be a huge threat to the legitimacy of the court.

Is the ICC discriminatory towards Africa?

In keeping with this week’s concentration on the ICC, I found this article from the New York Times Book Review, which is to be published next week.

This article addresses the claim that the ICC is discriminatory towards African leaders, as it has only prosecuted Africans in its 11 year history.  This accusation is particularly applicable today, as the ICC is encountering resistance from the Kenyan Government during their prosecution of their former President, Uhuru Kenyatta, for the 1,100 murdered and 650,000 displaced during the elections in 2007-2008.  The Kenyan Government has appealed to the UN Security Council and the African Union and sent diplomats to various African nations in an attempt to incite a mass withdrawal of African participants in the ICC, a move which would undoubtedly cripple the ICC; of the ICC’s 122 participating states, 34 are African.

The author of the article, Kenneth Roth, lists the many reasons that the ICC has only prosecuted Africans until now: many African nations enlisted the assistance of the ICC to try their former leaders, the high level of support the ICC has been shown by African nations, and the supposed predilection of its former chief prosecutor, Luis Moreno Ocampo of Argentina, to pursue arrest warrants rather than engage the court in long legal battles.  However, the supposition that the ICC is discriminatory towards Africans is a more concrete criticism of the ICC, which is interesting because the readings we did this week had to do with the tough balance that the court must walk between its own power and respecting state sovereignty, a more theoretical dilemma than the one presented by the Kenyans today.

ICC: “The home of justice” or “the toy of declining imperial powers”?

“The ICC has been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims. It stopped being the home of justice the day it became the toy of declining imperial powers.” – Kenyan President Uhuru Kenyatta at a recent African Union summit

In class last week, Professor Tiemessen mentioned the current trial of  President Uhuru Kenyatta of Kenya.  Kenneth Roth, in a recent New York Review of Books article, investigated the case and what it means for the future of the ICC.

President Kenyatta is accused of directing violence during contested elections in 2007 and 2008.  An estimated 1,100 people were killed and as many as 650,000 were forced to flee their homes.  Kenyatta, now on trial at the Hague, is fighting vigorously against the ICC; however, rather than relying on proof of his innocence, his focus seems to be on de-legitimizing the process and cause of the international court.

Kenyatta’s trial has showcased several issues haunting the ICC since its inception especially its authority (or lack thereof) as an international court and its politicized nature given the whims and motives of member and non-member states.  Beyond this, Roth provides interesting commentary on the historical trajectory of the ICC as it has attempted to create legitimacy around its mission and institutional processes.  “In its initial years, perhaps in an effort to establish itself and build political support, the ICC seemed to focus on widely despised figures who lacked a powerful constituency—people like the child-kidnapping Kony or the warlords of eastern Congo.”  But what happens when the ICC goes after heads of state who might be powerful and powerfully supported in their home region?

Now as the ICC turns to prosecuting such heads of state, and moreover sitting heads of state, its work faces increasing resistance not only from the individuals themselves but from the states in which such individuals wield power.  Kenyatta’s trial provides an example of this.  As Roth explains, “Ominously, the alliance campaigned in part by denouncing the court, turning the charges against its leaders into a nationalist protest against interference in Kenya’s affairs.”  Kenyatta has removed the focus of his trial from his criminal past and towards the role and function of the ICC.

As Roth writes, “Kenya” (notably not Kenyatta) “has been making two main arguments in its defense.”  Kenya argues that (1) the court is Africa-centric in its work to identify and condemn perpetrators of human rights atrocities, and (2) a head of state should not be put on trial until after he has served out his term in office.

The reasoning behind this second point is to maintain state-wide stability and allow officials to carry out their imminent duties.  (In Kenyatta’s case, coordinating resistance against local terrorist groups like al-Shabaab.)  This second point goes directly against the ICC’s governing statute which declares that heads of state are in no way exempt from immediate criminal prosecution.  This defense, I believe, provides the most interesting detail of Kenyatta’s trial because Kenyatta’s defense largely ignores his own criminal acts and rather relies heavily on accusations against the legitimacy of the ICC.  What does Kenyatta’s trial mean for the future of other ICC cases?  Will Kenyatta’s trial shift the focus or scope of ICC action?  How might his defense influence the defense of future accused leaders?  Roth’s article presents many of these questions (and more) and provides an interesting read on challenges faced by the ICC as it enters its 12th year.

In Kenya, Tribal Loyalty Outweights ICC Charge

Last month, Uhuru Kenyatta, son of Kenyan founder Jomo Kenyatta, was indicted by the ICC for crimes against humanity for his role in post-election violence in 2007-08, but he isn’t letting a little issue like that get in the way of his presidential bid.  Despite his recent indictment Kenyatta is still seeing a good deal of support among his fellow tribesmen.  Kenyatta is a member of the Kikuyu, the largest of Kenya’s many tribes.  “I feel sympathy for him because of the charges he faces and will vote for him again.  We Kikuyu are loyal to our own.” said one man of Kenyatta.

The post-election violence saw the death of at least 1,220 people, and the displacement of more than 300,000 others.  Nevertheless, Kenyatta is still geared up and has hit the campaign trail regardless of an eventual trial.  In fact, an opinion poll taken earlier in February in Kenya found that Kenyatta’s ratings in the presidential race have actually risen since the ICC charges.  “The case has not hurt him, in fact it has made him more popular than ever.  He will save a lot of money which he would have used on publicity during the campaigns.” another man noted.

An issue like this seems to be unprecedented.  Never before has an individual sought to gain public office while charges from the ICC loom overhead.  Currently, rights groups have asked the court to bar him from running, but the court has yet to decide if the charges disqualify him.  Personally, it seems like a no-brainer that he would be barred from running, but as it stands no actual trial has begun at this point so it’s tough to say what should happen.

What do you think?