Undermining the quest for justice in Kenya

Last week, the Permanent Mission of Kenya to the United Nations submitted a letter to the U.N. Security Council (UNSC), asking for the "immediate termination" of the International Criminal Court (ICC) cases against President Uhuru Kenyatta and Deputy President William Ruto. They are currently scheduled to begin trial this July and May, respectively, for their alleged roles in inciting ethnic violence in the aftermath of the 2007 election and are being charged with crimes against humanity.

While Kenyatta and Ruto are now allies, it has not always been this way. In fact, they are accused of orchestrating and financing horrific, armed attacks against members of each other’s communities in 2008. It’s widely believed that their current alliance is little more than a strategic attempt to combine forces against the ICC. Misery acquaints a man with strange bedfellows indeed.

Much of the debate around the letter has focused on whether or not the pair authorized it, but there has been less attention on the messages contained therein. What is particularly alarming is the attempt by UNSC Ambassador Macharia Kamau to paint the ICC as an illegitimate and irrelevant arbiter in relation to Kenya, which he does by using the recently concluded (and contested) election as "proof" that Kenyans believe the suspects are innocent. This is tantamount to amending the historical narrative to exclude Kenyan support for the Court.

Ironically, this line of attack works against the very people Kamau purports to represent, the Kenyan people. It obstructs the victims’ pathway to justice and undermines the creation of a truthful and representative national account of the 2007-08 violence. These are critical to a peaceful and democratic future.

In his letter, Ambassador Kamau goes as far as to say that Kenyatta and Ruto were "overwhelmingly" elected, thereby proving that Kenyans do not support the cases against them. This is highly suspect reasoning, given the fact that the 2013 election was fundamentally flawed and had major issues with its voter registry and counting system. But, if we take the numbers reported to be true, Kamau’s assertion still falls pretty flat. Out of the just-over 12 million votes cast, Kenyatta only received 50.07 percent. With the runner-up receiving 43.31 percent of the vote, this can hardly be counted as "overwhelming support."

The letter also makes the claim that the ICC undermines the sovereignty of Kenya, painting the entire process as foreign interference in Kenyan affairs. What he seems to have forgotten, however, is that the Kenyan government signed and ratified the Rome Statute, thereby agreeing to the terms of the ICC and showing support for its activities. Furthermore, Ambassador Kamau states that the Kenyan case was taken up by the ICC prosecutor at his own behest, who then cherry-picked particular individuals to investigate.

This is patently untrue.

Ambassador Kamau’s expressed rationale is confusing given that it was the Kenyan government that refused to establish a local tribunal to try the cases on two different occasions (February 2009; November 2009). This opened the door for the ICC, which is only allowed to become involved if the country in question chooses not to conduct its own investigations and trials. The Kenyan delegation in Geneva agreed when ICC Prosecutor Luis Moreno Ocampo started his preliminary investigations. Moreover, the list of suspects was created by the Kenyan commission investigating the 2007-08 post-election violence.

Overall, the process proceeded entirely with the support of Kenyan politicians and the general public. As of February 2013, 66 percent of Kenyans said they supported the ICC prosecutions. Surely, 66 percent support is far greater in significance than the .07 percent "overwhelming" majority claimed by Kamau.

The Kenyan Mission also tries to claim that the cases against Kenyatta and Ruto will threaten the stability of the entire region. This is entirely backwards reasoning when contrasted with what we know about countries moving forward after wars and violent conflicts. As we see again and again, publicly acknowledging and legitimizing the trauma inflicted on society is crucial to the process of achieving future stability. In 2012, former Liberian president Charles Taylor was sentenced to fifty years in prison for his role in atrocities committed in Sierra Leone back in the 1990s. Today, cases against perpetrators of the violence in the former Yugoslavia are still ongoing, more than a decade after the end of conflicts there. Yes, general stability may have returned to these former conflict zones before the tribunals, but ensuring the perpetrators of war crimes are brought to justice has been recognized as critical for these societies to be able to confront and resolve the past. Governments that fail to pursue justice send the message that they are not committed to the rule of law. This can intensify inter-group mistrust, hinder security and development goals, and can even lead to the cyclical recurrence of violence in various forms. 

Undermining the Kenyan victims’ quest for justice is an insult to what they endured, and that would be the real threat to long-term peace in Kenya. Indeed, there are already signs of unwillingness to confront the past in Kenya. The Kenyan Truth, Justice and Reconciliation Commission, which investigated the 2007-08 post-election violence, was statutorily bound to release its report on May 3 of this year. That report has yet to be released, and speculation abounds that the delay is due to the president’s opposition to the report’s details about his family’s controversial ownership of massive tracts of disputed land.

Ambassador Kamau’s letter asks the Security Council to give Kenya time to deal with the cases in a local context, stating that Kenya "has the capacity to offer a homegrown solution." Disregarding past support for an ICC trial, there is no Kenyan court which has the capacity to try crimes of this stature. In fact, the closest manifestation of such a court would be the International Crimes Division of the Kenyan judiciary, which is still in the process of being created. Where, then, is Kamau’scourt? Who then, if not the ICC, will allow for justice to be served?

Seema Shah is a political analyst based in Nairobi.