The politics of the theatrics around the International Criminal Court’s intervention in Kenya

By Gabrielle Lynchkenyatta ICC

This post draws from Gabrielle Lynch, ICC must go back to drawing board after Kenyan cases, Saturday Nation (Nairobi, Kenya), 11 October 2014.

Last week President Uhuru Kenyatta, made history as the first sitting head of state to appear before the International Criminal Court (ICC) in The Hague. However, in local media and public debates, judicial proceedings were overshadowed by parallel theatrics. But what is the focus of the ICC’s Kenyan cases, and why are demonstrations and public positionings – rather than judicial proceedings – taking centre stage?

To date, 21 cases have been brought before the ICC in eight situations – all of which are in Africa. In the Kenyan situation, the ICC Chief Prosecutor, Luis Moreno Ocampo, requested to open investigations proprio motu (or at his own initiative) although the initial request for intervention came out of a national commission of inquiry. In December 2010, Ocampo announced the names of six Kenyans under investigation for crimes against humanity allegedly committed during the post-election violence of 2007/8, when over 1,000 people were killed and almost 700,000 were displaced following President Kibaki’s hurried reinauguration. Then, in January 2012, charges were confirmed against four of the accused in two separate cases; charges against Francis Muthaura, the former head of the civil service, later dropped.

However, inbetween the 2007 and 2013 elections, Kenyatta and Ruto – who had been in opposing camps in 2007 and facing charges of organising violence against each other’s support bases and communities in 2007/8 – came together in the Jubilee Alliance, and in March 2013 were elected President and Deputy President of Kenya respectively. Indeed, one of the remarkable aspects of the 2013 election was how this ‘alliance of the accused’ managed to reframe their ICC indictments as a performance of injustice, neo-colonialism, and threat to the country’s peace and stability, rather than as a performance of neutral and effective international justice at work, at least in the eyes of a significant number of Kenyans.

However, while Ruto and Joshua arap Sang’s case began in September 2013, in December 2013, the new Chief Prosecutor, Fatou Bensouda, requested another adjournment of Kenyatta’s case so that her office could garner new witnesses on the basis that the loss of two further witnesses meant that available evidence did not satisfy the Court’s high evidentiary standards. Then, in September 2014, Bensouda asked for an indefinite postponement of Kenyatta’s case citing the Government of Kenya’s failure to hand over potentially incriminating evidence against it’s President. Unsurprisingly, the President’s lawyers appealed against this request leading to last week’s Status Conference to decide whether the case against Kenyatta be dropped or be indefinitely postponed.

We do not yet know the outcome of the Status Conference, however it is significant that relatively little attention was given to the Court’s decision that the President be addressed as Mr Kenyatta (rather than as President Kenyatta) during the Status Conference, or to the legal arguments presented. Instead, coverage focused on the dramas, spectacles, and staging of responses that occurred outside of the courtroom. More specifically, the week’s media coverage started with a presidential address to parliament in which President Kenyatta announced that he would temporarily appoint William Ruto as Acting President to protect the country’s sovereignty. After which, coverage turned to President Kenyatta’s departure and arrival at Jomo Kenyatta International Airport, demonstrations in The Hague, and President Kenyatta’s public statements. Published photos in turn provided portraits of the President’s relaxed demeanour; the Deputy President’s support for his colleague; the demonstrations on the steps of the ICC building led by the always colourful Senator Mike Sonko; and the warm welcome the President received on his departure from and arrival in Nairobi and The Hague.

For me, what this coverage highlighted is the extent to which, the ‘virtual trial’ – or the “trial of cooperation” whereby the “political interactions between [court], state, and international community…determine a state response to [a court’s] demands for cooperation” – has taken centre stage (Peskin, Victor (2008) International justice in Rwanda and the Balkans: Virtual trials and the struggle for state cooperation. Cambridge: Cambridge University Press, p. 9). This is not unusual. On the contrary, Prof. Peskin’s work on the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), as well as Prof. Duncan McCargo’s analysis of the Extraordinary Chambers in the Courts of Cambodia, reveal a common pattern whereby political debates around an international criminal judicial process tend to gain predominance. But why is this?

First, international tribunals and the ICC lack the vestiges of a state and are therefore reliant on state cooperation to carry out investigations, locate witnesses, and bring suspects to trial. However, there are a number of reasons why states or political elites might not want to cooperate with such processes, or might seek to bring them to a halt. For example, they may seek to protect particular individuals or institutions from successful prosecution, or to defend themselves against (or to use) nationalist arguments regarding the need to protect state sovereignty from external interventions. As a result, the prosecution tends to try and negotiate with, but also to shame states in an ongoing effort to motivate state cooperation; while targeted states often seek to use the court’s intervention for their own ends or to counter-shame the court – whereby they stress (and sometimes exaggerate) a court’s shortcomings and mistakes – in an attempt to undermine its moral authority.

In this case, Kenyan elites have proved particularly adept at counter-shaming the ICC and at questioning its neutrality, its interpretation of events, and potential impact. Thus, emphasis has been placed on the fact that all of the ICC’s cases focus on Africa cases. In turn, President Kenyatta and his Deputy have presented themselves as innocent parties who have been taken to The Hague by vested interests. Finally, it is argued that – as democratically elected leaders of a regional powerhouse in an area wracked by terrorism – that the cases are detrimental to peace, security, and development.

I leave it to others to determine whether they are swayed by the arguments presented by the ICC or the Jubilee Alliance and their respective supporters in this virtual trial. But what is clear is that the ICC is also on trial. Moreover, it is evident that, if the ICC is to be more successful in future cases, it needs to learn that it cannot simply rely on the moral high ground of being an international judicial body or the strength of its legal arguments to ensure that it enjoys sufficient support to conduct successful investigations and prosecutions. Instead, it has to work to inculcate greater faith in all aspects of its works so as to ensure that it is generally perceived as an example of neutral justice, and that it cannot be so easily recast as a performance of injustice and as a threat to a country’s sovereignty, peace and security. In short, it is time that the ICC gave more consideration to the whole range of its operations from its selection of cases and investigations to its public relations and outreach programmes.

Gabrielle LynchGabrielle Lynch is Associate Professor of Comparative Politics at the University of Warwick.   She is the author of I say to you: Ethnic politics and the Kalenjin of Kenya (Chicago: University of Chicago Press, 2011) and is currently writing a book about transitional justice in Kenya as part of an ESRC funded project entitled “Truth and Justice: The search for peace and stability in modern Kenya”. Follow her on Twitter @GabrielleLynch6.

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