Little mention has been made of justice for the 1,300-odd people that lost their lives in the post-electoral ethnic violence which Kenya’s two leaders are accused of masterminding in early 2008. The deferral suits everyone apart from the victims.
The International Criminal Court (ICC) may have to wait to try its first sitting head of state after all. The prosecution of Uhuru Kenyatta, Kenya’s president, remains in the balance less than a month before his trial is due to open in The Hague. A resolution passed on October 12th at a meeting of African leaders at the headquarters of the African Union (AU) in Addis Ababa, Ethiopia’s capital, demanded immunity for the continent’s leaders while in office. This has raised the pressure on the court and its backers. The UN Security Council must now decide whether to ignore the African demands or use its power to defer Mr Kenyatta’s trial for a year. A third option would be “trial by Skype”, should the ICC judges allow the Kenyan president to give evidence via a video link. Kenya’s vice-president, William Ruto (pictured on the right), whose separate trial is already underway, said on October 15th that he would continue to co-operate with the court if he is allowed “sporadic” absences from the hearings.
Western governments have been anxiously pondering what to do, even before the AU resolution, but their views differ. Some argue that the strategic importance of east Africa’s biggest economy outweighs concerns over granting impunity to its leaders. They have been strengthened by last month’s massacre at a shopping mall in Kenya’s capital, Nairobi, carried out by gunmen loyal to the Shabab, an al-Qaeda-linked Somali militia. Mr Kenyatta’s role as a key ally of the West in the war on terror is vital, it is argued. Others respond that giving a free pass to sitting presidents and their lieutenants would encourage them to hold on to power at all cost. That would mean more rigged elections, the trampling of constitutions and political repression, just as standards of governance across the continent are tentatively but steadily improving. But such voices appear to be losing the battle.
A draft UN resolution being circulated among European missions calls for the Security Council to use its powers under Article 16 of the Rome statute, which established the court, to defer the Kenyan trials for 12 months on the ground of international peace and security, a ruling which can be renewed repeatedly. It is unclear what backing it has among the five permanent members of the council, but France may be leaning towards the idea, with President François Hollande saying that trial procedures should be “simplified”.
The Kenyan government may yet overplay its hand. The speech of the American-educated Mr Kenyatta at the AU meeting was surprisingly aggressive. He railed against “imperialists” and sounded more like Robert Mugabe, Zimbabwe’s president, than a man whose election strategy had been devised by a British public-relations firm. He gloated over the West’s supposed decline into the “pits of penury” and compared development aid to “structural colonialism”, likening it to apartheid.
The son of Kenya’s founding president, Jomo Kenyatta, he ran for office insisting that the ICC indictment he faced was a “private matter” and that he would co-operate with court, which had been asked by Kenya’s previous government to take on the task of bringing to justice anyone responsible for perpetrating the terrible violence that followed the country’s elections at the end of 2007. But he has evidently changed his line since winning. Now, he says, he is no longer a private citizen. Instead of courting governments that prize Kenya’s importance in the fight against Islamist extremism in the Horn of Africa, his administration has been picking what one Western diplomat called “childish fights”. Newly accredited European ambassadors arriving in Kenya have been told that the president has no time to receive them.
Meanwhile little mention has been made of justice for the 1,300-odd people that lost their lives in the post-electoral ethnic violence which Kenya’s two leaders are accused of masterminding in early 2008. “The deferral suits everyone apart from the victims,” says an ICC lawyer.