THE BLOG
24/09/2013 06:27 BST | Updated 23/11/2013 05:12 GMT

Kenya: International Criminal Justice is Failing Just as it is Needed Most

This article was written before the attack on the Westgate Mall in Nairobi. The attention paid to this corner of Africa will be monopolised for some time by al-Shabab, the Greater Horn crisis, and the whole narrative of the (post-?)War on Terror. The prosecutions at the International Criminal Court that are the subject of this piece are now even more politicised. Westgate has only added to the difficulties the Court faces in securing convictions in Kenya or anywhere else of serving political leaders.

This poem by the Ghanaian poet Kofi Awoonor, who died in Westgate, has been circulating on the internet and seems almost uncomfortably timely. My mountains reel and roll to the world's end.

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Syria has agreed to destroy its remaining stockpiles of chemical weapons and accede to the Chemical Weapons Convention as part of a US-Russian deal. A muddy compromise, where one form of killing is exchanged for another, will be debated by scholars for years to come. But this is not the only set-back this year to what is inaccurately called international law. On September 5th, Kenya's Parliament voted to pull out of the Rome Statute, the 2002 treaty establishing an International Criminal Court, which if ratified by a second vote would mark the first time a nation has withdrawn from the ICC.

Kenya's action was taken ahead of the trial of Vice President William Ruto, indicted in March 2011 for his alleged role in perpetrating pre-election violence in the run-up to Kenya's 2007 General Election along with Joshua Arap Sang, General Manager of one of Kenya's largest radio stations, accused of essentially being the head of the propaganda operation directing the violence. It also comes ahead of the trial, on slightly different charges, of President Uhuru Kenyatta, due to begin in November.

In April 2013 elections, the Jubilee Alliance led by Uhuru Kenyatta beat the National Alliance of Mwai Kibaki, the government that overturned the electoral stranglehold of KANU from 1964 to 2002. Whether by bad luck or political miscalculation the ICC's indictments of Ruto, Sang and Kenyatta seem to have hit a nerve with the Kenyan public, and this dissent has infected other African nations frustrated that the ICC is just another means to interfere in the politics of Africa.

The ICC's investigation in Kenya is unique. The Kenyan indictments are the first time the court has invoked the principle of proprio motu, investigating and issuing indictments on its own initiative and not in response to a state-party referral. It is also a significant political change. From the first ICC investigations into the 2007/08 violence, the perception of foreign interference in Kenyan politics has met a prickly populist resistance that has only served to strengthen the political hand of Kenya's leadership. Kenya's vibrant online community even managed to get #SomeonetellCNN to trend on Twitter as a sarcastic rebuke to foreigners' predictions that the 'Uhuruto' alliance of former political rivals would lead to bloodshed in 2013.

Some see the Uhuruto coalition as an opportunist stitch-up to emasculate the Luo-dominated KANU, which as corrupt and undemocratic as it was at least kept a lid on ethnic violence in Kenya for forty years. Supporters would argue that the coalition is the act of statesmen and peacemakers determined not to see the potentially bloodier scenario of a return to Luo dominance.

Kenya's neighbours Tanzania, Uganda, Burundi, Rwanda and Eritrea have all filed amicus curie petitions to allow William Ruto to be exempted from attending his own trial in order to fulfil his public duties, as Article 63 of the ICC Charter attempts where possible to balance justice with the need for state cooperation. It is this solidarity among African nations that marks a turning point for the ICC, and highlights the consistent and growing complaint from African nations that the ICC seems to exist solely to prosecute Africans.

The Kenyan agitation adds to a sense that the ICC meddles in political waters it is not equipped to navigate. Here is a video of Ruto shaking hands with Ban Ki-Moon this last June, being thanked for his Kenyan support in Somalia. Just look at the body language. When the head of the UN shakes the hand of a man indicted as a war criminal, it just feeds into the narrative some in Kenya spin that a racist international elite seek to use the ICC as a tool to oppress Africa as and when it suits them. The fact that the ICC is not a UN body is lost within the populist noise that feeds on inconsistency and political naivety for its own ends.

A strong Kenya is a regional and geostrategic priority given the challenge of security in Somalia and the Greater Horn, and the general economic rise of Africa. The case that supporters of the ICC and those who argue for ever-greater expansion of its mandate need to demonstrate is one of working with the grain of a complex world, not against it.

For those in favour of multilateralism, what progress has been made in the last couple of months? In Syria the taboo against using chemical weapons was met with division at the UN and a backroom deal between America and Russia that was somewhere between realpolitik and statesmanship. In Kenya, the actions of the International Criminal Court, a body established to advance the concept of international criminal liability, has provoked a state party to consider dropping out of the Rome Statute for the first time.

For the world's remaining strongmen, who are the cautionary tales of the last few years: Bashir and Kenyatta or Saddam and Ghaddafi? One former President, Charles Taylor, is in prison, but this is after being found guilty by the ad hoc International Criminal Tribunal for Sierra Leone, and mainly for the crime of invading a neighbour, not for anything that happened at home. This is hardly a major advance for the concept of international criminal responsibility for crimes committed against your own people.

Where international criminal responsibility has been upheld, it has typically been the actions of national courts - such as the arrest of five suspected Rwandan genocidaires this year, and the pursuit over decades of Nazi war criminals - rather than any international law enforcement action. Rethinking the prosecutions in Kenya could go some way to rehabilitating the reputation of the Court, and may better advance the cause of international justice.