Kenya’s crazy-like-a-fox ICC strategy

Last week, I wrote about the hostile letter that Kenya’s United Nations ambassador submitted to the U.N. Security Council. In sometimes rambling fashion, he attacked the court’s investigations of 2007-2008 election violence, which include indictments against new President Uhuru Kenyatta and Vice President William Ruto. The ambassador warned that the court’s work may threaten peace and stability and asked council members to use their influence to end the investigation once and for all.

A strange thing happened after the confidential letter became public, however: Several senior Kenyan officials, including Ruto himself, disavowed it:

Questions are now being raised as to who authorised a letter to the UN Security Council seeking to terminate ongoing criminal cases against President Uhuru Kenyatta and his deputy William Ruto.

This is after Ruto and Attorney General Githu Muigai disowned a letter by Kenya’s ambassador to the UN Kamau Macharia last Friday requesting the Security Council to ask the ICC to terminate proceedings against President Uhuru, Ruto and former Kass FM presenter Joshua arap Sang, on grounds that the cases were a threat to Kenya’s national security and undermined the country’s sovereignty.

“The official position of the Kenyan government is that it has cooperated fully with the ICC and intends to continue cooperating within the framework of the Rome Statute and International law,” AG Muiga said on Saturday.

The confusion has led some close observers to wonder whether the U.N. ambassador somehow went rogue. I’m inclined to a much more cynical interpretation: The Kenyan government is avoiding a direct confrontation with The Hague that would provoke international condemnation while also making clear that it views the court’s investigation and the upcoming trials as a dire threat. Those mixed messages likely send a quite clear signal to Kenyans working with the court: Beware.

To complete the scheduled trials, the court needs continued cooperation from Kenyans inside and outside the government. As Kenyan officials know well, there are many gradations of cooperation. A formal declaration of cooperation is quite distinct from the real thing. According to Kenya’s Capital FM, the ICC prosecutor is not at all pleased with the help she has been getting:

In her submissions to the Hague-based court, Bensouda says that she has encountered difficulties in securing full and timely cooperation from Kenya, despite assurances by government.

She says that although the Government of Kenya (GoK) had allowed investigative missions from the Office of The Prosecutor (OTP) to Kenya, there were other areas in which the government had failed to cooperate.

“Contrary to the GoK’s claims to have acted in “full compliance” with its obligations under the Statute 24, the OTP continues to encounter considerable difficulties in securing full, effective and meaningful cooperation, which continues to deprive the chamber of evidence that may assist in adjudicating the Kenya cases,” she protested.

She says that the government has failed to execute requests for documentary evidence relating to among other things financial records of the accused in the two Kenyan cases.

There are some signs that the government may be successfully scuttling the cases without formally ending cooperation. Most alarming, some witnesses are reportedly reconsidering their participation.