Kenyatta, Ruto and the ICC - Major Diplomatic Earthquake in the Offing
By Richard Dowden, 9 May 2013
Analysis
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
<
http://astore.amazon.co.uk/royaafrisoci-21/detail/184627155X> Africa;
altered states, ordinary miracles. For more of Richard's blogs click here
<
http://africanarguments.org/category/politics-now/richard-dowden-blog/> .
Received on Thu May 09 2013 - 17:01:38 EDT
