What a Kenyatta win would mean for the International Criminal Court

As votes in Kenya are counted, the chances are growing that Kenya’s next president will be Uhuru Kenyatta or, as he is referred to at the International Criminal Court, Case No. 01/09-02/11. In March 2011, the International Criminal Court indicted Kenyatta and his running mate, William Ruto, for orchestrating ethnic violence in the wake of the country’s 2007 election.

In formal terms, a Kenyatta victory wouldn’t change anything in the Hague. The wheels of international justice have already started to turn. Kenyatta will remain an indictee and won’t have any new protection against the charges. The ICC’s founding document explicitly rejects immunity for senior officials. Article 27 of the Rome Statute provides that "official capacity as a Head of State or Government…shall in no case exempt a person from criminal responsibility…" But politically, a Kenyatta victory would be a serious problem for the young court, which began operations in 2002 and has struggled to establish its credibility.

First, a Kenyatta victory would appear to be a slap at the institution by the people of one of Africa’s most important states. During the campaign, Kenyatta insisted that choosing a president was a matter for the people, not judges in the Hague. Reporting from Kenya suggests that at least some voters have been motivated by animus against the ICC. Jeffrey Gettleman’s latest New York Times dispatch from Kenya offers up some anecdotal evidence of that dynamic:

[T]he International Criminal Court may have actually driven turnout for Mr. Kenyatta and Mr. Ruto, who has also been charged with crimes against humanity. Many voters said they felt that if the two won, they would have a better chance of beating the charges.

“If Uhuru’s president, it will be harder to send him to The Hague,” said Terry Wamitha, a vegetable seller in Limuru, a Kikuyu-dominated area outside of Nairobi.

Another Kenyatta supporter, Joseph Koech, a road engineer, said, “this election isn’t about tribes, it’s about the West.”

He explained: “We believe the I.C.C. is a tool of Western countries to manipulate undeveloped countries. That’s why we voted for Uhuru, against the West.”

Whether or not the indictments actually did help Kenyatta and Ruto (and there’s reason to be skeptical of that claim), their victory will be perceived in many quarters as a defeat for the court. It’s not the kind of publicity the ICC needs. The court already suffers from the perception that it is slow, inefficient, and toothless; now it will appear to have been spurned by a people it is ostensibly seeking to help. (A Kenyatta victory wouldn’t be the first time an indictee has won an election. Sudan’s Omar al-Bashir secured almost 70 percent of the vote in April 2010, a year after the ICC indicted him for crimes against humanity. But that election occurred in a thoroughly autocratic environment.) 

That a freshly elected African head of state will bear the burden of ICC indictment would likely worsen already poor relations between the court and African officialdom. Many African leaders have argued that the ICC, which to this point has indicted only Africans, systematically ignores crimes committed in other parts of the world. At various points, African leaders have discussed withdrawing en masse from the treaty that created the court or, more likely, empowering a regional court to investigate atrocities, thereby displacing the ICC. 

For the court, there may be an even more damaging consequence to a Kenyatta victory: It could force powerful states to choose between the ICC and their diplomatic and economic interests in Kenya. The United States and some European states have warned that there would be "consequences" for the bilateral relationship if Kenyatta prevails. Those vague words suggest that the West might sever relations with a Kenyatta-led government, reduce aid, or curtail security cooperation. But if the ICC’s first decade has demonstrated anything, it is that powerful states — even those most supportive of the court — will rarely elevate international justice above their other interests. The most damaging result of having an ICC indictee elected president might be how little the world will care.