Kenya’s Most Wanted

The victory of Uhuru Kenyatta, indicted for crimes against humanity*, in Kenya’s presidential election poses a familiar dilemma for the West: how to weigh support for human rights against economic and security interests in a part of the world marked by terrorist threats, simmering regional conflicts, and increasing economic and trade opportunities. But Kenyatta’s victory also raises a potentially thornier conundrum: whether actively opposing his assumption of power will indeed advance the cause of international justice at all.

Last week’s Kenyan elections were a messy affair. There are allegations of fraud in the electoral register, and the country’s electronic counting system crashed, leading Raila Odinga, the runner-up, to challenge the result. But the current outcome seems likely to hold. If it does, Kenyatta — the son of legendary Kenyan President Jomo Kenyatta — will soon begin a five-year term.

The contentious outcome echoes the country’s last vote, in 2007, when Odinga lost narrowly to a different opponent. Back then, Odinga also disputed the result and — saying he did not trust the courts — urged his followers to take to the streets. Two months of unrest ensued, including boycotts, ethnic clashes, and more than 1,000 deaths. During this upheaval, according to an indictment issued by the International Criminal Court (ICC), Kenyatta and others engaged in the wholesale displacement, torture, persecution, and ever murder of ordinary Kenyans. Kenyatta stands accused of directing leaders of a Kenyan criminal syndicate to attack perceived opposition supporters. He has vehemently denied committing any crime, vowing to cooperate with the court and mount a robust defense.

The indictment was a landmark for the ICC. Most of the court’s cases had targeted abuses by militias during armed conflicts. This time, in what observers called a warning shot for African and other global leaders accustomed to using violence to defend their rule, the court went after top national leaders who had used brutal repression to maintain political power. The case was also noteworthy because it was undertaken by the ICC prosecutor himself without a request from either the U.N. Security Council or the Kenyan government. After the indictment was issued, the Kenyan parliament passed by a wide margin a non-binding protest motion calling to withdraw the country from participation in the ICC.

Fast-forward five years to this year’s contested Kenyan election. This time the country’s constitution had been strengthened with a bill of rights; the courts have been cleaned up. Those improvements seem to have helped avert violence thus far. But while lives may be spared this time around, the stakes in this election are still high for Kenya, Western governments, and the ICC. The United States and Kenya have cooperated in fighting terrorism ever since the 1998 bombing of the U.S. Embassy in Nairobi. Under the Obama administration, economic and security cooperation and the sharing of intelligence have intensified, particularly on Somalia, home to the al Qaeda-linked militant group al-Shabab. Nairobi is a prime media hub for the continent and is the locus for the United Nations’ vital peacekeeping and humanitarian programs throughout Africa. The United States and Europe are aware that if Kenya pivots away from them, it will likely be in the direction of China, which is already heavily invested in Kenyan oil, mining, transportation, and infrastructure projects.

Despite, or perhaps because of, their close relationships with Nairobi, the United States and Europe have not hid their distaste for a Kenyatta victory. U.S. Assistant Secretary of State Johnnie Carson warned Kenyans before the vote that "decisions have consequences," and Britain has announced that its diplomats would have only "essential contacts" with Kenyatta. The impetus to treat Kenyatta as a pariah is motivated not just by recoil at his alleged actions, but by the practical notion that to deter them, the international community must make crimes against humanity out of bounds not just legally but also politically, diplomatically, and socially. If the ICC hopes to avert abuses and isolate those who commit crimes against humanity, it must ensure that indicted leaders can’t simply go on with business as usual. This is why there has been so much pressure on governments to shun and isolate Sudanese President Omar al-Bashir, who has been indicted and subject to an arrest warrant by the ICC for five counts of crimes against humanity.

But Western efforts at stigmatizing  those who commit crimes against humanity have sometimes backfired in Africa. For years, Africans have alleged that the court unfairly targets Africa while ignoring crimes in the West. That suspicion has fed the continent’s resistance to Bashir’s indictment, which the Arab League and African Union have both condemned as the Sudanese leader travels freely to Oman, Egypt, Kenya, China, and elsewhere. The warrant for Bashir is now five years old, and it’s unlikely he’ll be apprehended soon.

In Kenya, suspicion of the ICC is now running so high that Kenyatta used his indictment as a campaign selling point. Responding to the court’s subpoena, Kenyatta maintained his innocence. He further taunted the court, playing to nationalist sentiments and vowing to resist international interference in Kenyan affairs. "The ICC was definitely a factor in this election, but not necessarily the factor you would expect," Maina Kiai, a leading Kenyan human rights activist, told the New York Times. "It got people out [to vote]. People were saying, ‘They’re our boys; they’re our sons; we need to protect them.’" "Thank god for the ICC," representatives from Kenyatta’s party reportedly crowed. Analysts have also said that by raising the arrest warrant during the closing days of the campaign, Western diplomats played right into Kenyatta’s hands. Last week the Kenyatta campaign accused the British government of "shadowy, suspicious, and rather animated involvement" in Kenya’s election, a claim London sharply denied. The United States’ own failure to join the ICC puts Washington on even shakier ground with the Kenyan public.

For now, shunning Kenyatta may risk not only Western security and regional interests, but also embolden those seeking to further discredit the court. Keeping their hands clean of contact with Kenyatta may inoculate Western governments from criticism from human rights advocates. But it is unclear that such distance will bring Kenyatta any closer to prosecution, since an effective prosecution will need buy-in from Kenyans. As long as Kenyatta continues to cooperate with prosecutors, Western governments can distinguish him from the openly defiant Bashir. Western governments should use the time before a potential future conviction to seek to mobilize credible voices in Kenya who will promote understanding and respect for the ICC’s judicial process and outcome, as well as for national accountability processes to deal with many lower-level suspects associated with the 2007 violence. Despite the election outcome, a 2012 Gallup survey revealed that seven out of 10 Kenyans approve of the ICC’s involvement in the cases of Kenyatta and the others accused in relation to the election violence. If the court is to win back its credibility among the Kenyan people, it will be because local opinion leaders, rather than Western diplomats, come to its defense.

The surprise announcement earlier this week that the ICC would drop its case against one of Kenyatta’s co-accused has heightened skepticism over the strength of the evidence against Kenyatta but also called attention to lapses in the Kenyan government’s cooperation with international prosecutors. For better or worse, this development has the side effect of making it easier for Western countries to adopt a more measured stance until the ICC process is further played out.

Given the weakness and slow pace of international justice mechanisms worldwide, many advocates rejoiced when the ICC took strong action in response to the 2007 Kenyan election violence. They were heartened by the prospect that those responsible for large-scale killings, sowing mass fear, and undermining democracy would be held to account. Any retreat from support for the ICC, or capitulation to the sentiment of defiance rallied by Kenyatta, risks undercutting the court’s already tenuous international credibility, and eroding the faith of Kenyan human rights defenders who have fought for justice. Western diplomats need to be careful in supporting the process of international justice while not interjecting themselves into Kenyan politics in a way that grinds the quest for accountability to a halt.

*Correction, March 18, 2013: Uhuru Kenyatta has been indicted for crimes against humanity, not war crimes, as this article originally stated incorrectly. References throughout the article in reference to war crimes have been changed to crimes against humanity. Return to article.