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October 23, 2013

Kenya Pushes for Delay as ICC Trial of Kenyatta Looms

by Gabe Joselow

Kenyan President Uhuru Kenyatta’s trial date at the International Criminal Court is now less than three weeks away.  His administration, with backing from the African Union, is lobbying for the case to be deferred. 

Kenyatta has been adept at turning the ICC charges against him from a potential blight on his career to a rallying cause for his supporters.

Accused of orchestrating violence after Kenya’s 2007 presidential election that killed more than 1,100 people, Kenyatta has characterized the charges as a neo-colonialist attack on the country.

He used the rhetoric most recently in a speech Sunday marking the country’s equivalent of Heroes Day celebrating fallen freedom fighters, like his father, Kenya's first president.

“Let us confront without flinching those external forces seeking to thwart our collective aspirations," he said.  "They may be powerful and rich, but so were the colonists.  They may disrespect, but we have defeated their ilk before.”

Kenyatta’s trial is due to begin November 12 at the ICC in The Hague, where the deputy president, William Ruto, is currently attending proceedings in a separate but similar case against him.

Meantime, Kenya and the African Union have been lobbying the United Nations Security Council to have the case deferred for a year, citing concerns about security in Kenya and the region.

The requests follow September's terrorist siege on a Nairobi shopping mall attributed to the Somalia-based militant group al-Shabab.  The argument is sitting leaders cannot react and handle future security threats, if they are out of the country for prolonged trials.

Adams Oloo, political science chair at the University of Nairobi, says Kenya and the AU are exploring “unchartered waters” in trying to get more leverage for African leaders.

“The Kenyatta regime and the African Union are saying they don’t want to set precedents in which there is a possibility of heads of state from Africa, in future, being dragged into the court.  I think that’s the problem, the major problem that they have,” he said.

Kenyatta and Ruto have cooperated with the court so far and have promised to continue to do so.

The president won what appeared to be a minor victory last week when ICC judges ruled he would not have to appear in person for all of his trial - only for the opening and closing statements, judgments and when victims testify.

Barring a deferral from the U.N., Oloo says he expects the president to continue to cooperate with the ICC, as long as chief prosecutor Fatou Bensouda does not appeal the decision allowing him to skip some portions of the trial.

“I think they’ll only have a problem if Bensouda appeals and it is now demanded that he should be there physically the way the deputy president is there physically on a day-to-day basis.  I believe they would have a problem with that and would see that as trying to undermine his authority as head of state and head of government,” he said.

Bensouda has appealed against a similar decision granting Deputy President Ruto a conditional exemption to appearing at his trial.  A judgment on that appeal is due on Friday, and will indicate how much leeway might be granted to the president.

Still, some rights groups in Kenya see a potential deferral of the trial as a deferral of justice and object to Kenyatta's attempts to escape appearing in person.

“You know, in these discussions, where are the victims?" Those people who suffered, who lost their property, who lost their lives, those who lost their loved ones.  How do they access justice?" asked Stephen Musau, chairman of the Rights Promotion and Protection Center in Kenya.

If things do not go Kenyatta’s way, and were he to skip his trial altogether, he could be slapped with an international arrest warrant, like the one put on Sudanese President Omar al-Bashir, wanted for war crimes and genocide charges.