President Kenyatta escapes ICC prosecution in Kenya

It has been an eventful few weeks for Kenyan President Uhuru Kenyatta, whose case at International Criminal Court was dropped on 5 December 2014. However, Deputy President William Ruto still has charges to answer at The Hague, leaving the president in a difficult position domestically.

The collapse of the Kenyatta trial did not come as a surprise. Commentators have been discussing the weakness of the ICC’s case against Kenyatta for some time. It was always a case based on limited evidence, and therefore heavily reliant on a small number of key witnesses. Many of those witnesses have now recanted their statements, in part because of the absence of an effective and independent witness protection programme to safeguard key informants. Combined with the refusal of the Kenyan government to hand over important evidence, this undermined the prosecution’s case from the very start. According to Human Rights Watch, the Kenyan government had acted as a roadblock “impairing the search for truth”.

As early as December 2013, the ICC’s Chief Prosecutor Fatou Bensouda told the Court that she did not have the necessary evidence to prove Kenyatta’s guilt. She was given more time to procure it, but because the ICC has no investigatory capacity within Kenya this search was doomed to failure. On 8 October 8 2014, the Prosecutor was forced to admit that she had no new evidence that would tip the balance against the president. She was informed by the judges of the ICC Trial Chamber that while they would not support Kenyatta’s application to terminate proceedings there and then, she must find the evidence or request the judges to withdraw the case.

When the evidence was not forthcoming, it became inevitable the case would be withdrawn. Bensouda made one final attempt to have it indefinitely adjourned, so that proceedings could be reopened in the event that new evidence came to light, but this was rejected by the Chamber, who criticized the Prosecutor for failing to ask for evidence that she later claimed was essential earlier in the trial. For many, the collapse of the Kenyatta case is just the latest in a long line of ICC failings that demonstrate the inability of senior lawyers to understand the political context within which they operate.

President Kenyatta was reportedly “excited” and “relieved” at the news. Having always denied the charges, he said that he felt “vindicated” and that his “conscience was absolutely clear”. However, Kenya’s Deputy President, William Ruto, remains on trial. The Ruto case has always been thought to be stronger than the Kenyatta case, in part because it relies on a broader range of evidence and so is less vulnerable to the intimidation or bribery of a small number of witnesses. President Kenyatta is hoping that this case, too, will be dismissed, quipping “one case down, two more to go” on Twitter.

He may get his way. Many commentators remain skeptical about the strength of the Ruto case, especially now that the Trial Chamber has effectively rewarded the Kenyan government for its failure to comply with the Prosecutor’s requests by halting the proceedings against Kenyatta. But the short-term divergent trajectories of the two cases may cause domestic problems for the president. In many ways President Uhuru Kenyatta, a Kikuyu, and Deputy President William Ruto, a Kalenjin, are unlikely bedfellows. Their charges at the ICC relate to allegedly organizing violence on different sides of the 2007/8 ethnic clashes, and many members of their communities are deeply suspicious about their coalition, which is best conceptualized as a marriage of convenience. Although Kenyatta and Ruto managed to successfully bring their supporters together behind their “Jubilee Alliance” during the 2013 election campaign – thus pacifying the often volatile Rift Valley region, home to a Kalenjin majority and a Kikuyu minority – radicals on both sides have called for an end to the pact.

This tension places the president in a tricky position. Unless he campaigns hard to ensure that the charges against Ruto are also dropped, the Deputy President’s supporters will accuse him of conspiring to use the ICC to remove their man – and his potential rival – from the Kenyan political landscape. But if the president does work hard to ensure Ruto’s freedom, he will frustrate many of his own advisers, who fear that unless the Deputy President is removed he will one day succeed Kenyatta to State House, undermining their access to power. Squaring this circle while keeping his ruling coalition together will be one of the most difficult challenges facing the president in the early months of 2013.

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