Kenya’s Conflict with the ICC Continues

In January, I wrote that the standoff between Kenya and the International Criminal Court over the so-called “Ocampo six” was one of 2011’s top stories to watch in Africa. On December 15 of last year, ICC Chief Prosecutor Luis Moreno Ocampo announced his intention to try six prominent Kenyans on suspicion of fomenting electoral violence in 2007-2008. Since then, the case has caused controversy within Kenya and internationally, raising important issues about the future of Kenyan politics, questions about international justice and African sovereignty, and new tensions in Kenya’s relationship with the US.

The matter of the “Ocampo six” reverberates strongly in Kenyan politics because of the high profile of the targets. They include Higher Education Minister William Ruto (suspended), Industrialisation Minister Henry Kosgey, Head of the Civil Service Ambassador Francis Muthaura, former Police Commissioner Major General (Rtd) Mohammed Hussein Ali, and KASS FM radio presenter Joshua arap Sang, all of whom are well known in Kenya. Perhaps most importantly, the sixth member of the list is Uhuru Kenyatta, son of Kenya’s first president, Jomo Kenyatta. The younger Kenyatta, who is currently both Finance Minister and Deputy Prime Minister, is a strong candidate to replace current President Mwai Kibaki. The accusations against Kenyatta and the others could affect the 2012 elections in Kenya.

Domestically, the situation has already divided Kenyans. One poll of around 2,000 mobile phone users indicates majority support for the trials among the population, but many elites have reacted to the ICC’s actions with hostility. A week after Ocampo’s announcement, the Kenyan parliament “voted overwhelmingly for the country to pull out of the treaty which created the [ICC].” President Kibaki also sided against the ICC, arguing that Kenya needed local tribunals to deal with the problems stemming from 2008’s violence. These decisions in turn angered some civil society groups.

Internationally, the issue is also making waves. Vice President Kalonzo Musyoka meets this week with UN Secretary-General Ban Ki Moon and with US government officials to urge a deferral of the case by a year. The AU supports Kenya’s request, but international organizations like Human Rights Watch have called on both the AU and the Kenyan government to allow the ICC’s work to continue.

The conflict has deepened feelings among some Kenyans, especially elites, that the ICC represents a new and insidious form of Western domination of Africans. The BBC reports that when the Kenyan parliament voted to leave the ICC,

MPs decried the ICC as a colonial, anti-African court and said that Kenya was surrendering its sovereignty.

“It is only Africans from former colonies who are being tried at the ICC,” Kenya’s Daily Nation paper quotes Energy Minister Kiraitu Murungi as saying.

“No American or British will be tried at the ICC and we should not willingly allow ourselves to return to colonialism,” he said.

This feeling has intersected with ongoing tensions in the US-Kenya relationship. These tensions concern punitive measures the US has already taken against Kenyan elites in response to the 2008 violence. Revelations about Kenya in the Wikileaks embassy cable dump exacerbated these tensions, and now Kenya’s Daily Nation is writing about “How Kenya Rejected America’s ICC Plot.” The newspaper sees the US as an aggressive and hypocritical actor aiming to undermine Kenyan sovereignty:

The American government tried for years, without success, to pressure Kenya into signing an agreement to protect Americans who might be wanted by the International Criminal Court.

Documents released by the whistle-blower website WikiLeaks show US frustration that Kenya resisted all types of inducements, arm-twisting and threats to sign the so-called Article 98 agreement.

That is a bilateral agreement by which Kenya would undertake not to hand over to The Hague any American citizen sought for war crimes, crimes against humanity, genocide, mass murder or other crimes of that nature.

Ironically, the US is now at the forefront in pressing the government to accede to ICC trials for key officials facing possible indictment for the post-election violence.

The US is itself not a party to the ICC and has over the past six years waged a worldwide campaign to protect its military forces and civilians from jurisdiction of the international court.

The pressure applied by the US included visa bans against ministers and other officials, cutbacks in military cooperation and development aid; and travel warnings that adversely affected the flow of American tourists to Kenya by depicting the country as unsafe because of terrorism threats.

The ICC issue includes more parties than just the US and Kenya, but it could affect that relationship more than any other.

A final thought is that if Uhuru Kenyatta becomes the next president of Kenya (and my speculation that he might win comes from a knowledgeable Kenyan acquaintance, not from hard data, so take this with a grain of salt), the ICC’s credibility may slip further in Africa. If in 2012 there are two African heads of state (Kenyatta and Sudanese President Omar al Bashir) who refuse the ICC’s summons, the Court may end up looking ineffectual. The stakes, then, in Kenya’s battle with the ICC are high on both sides.


2 thoughts on “Kenya’s Conflict with the ICC Continues

  1. Pingback: Kenya: Will the “Ocampo Six” Heed the ICC’s Summons? « Sahel Blog

  2. Pingback: Kenya situation – Ask the Court | Diaspora Kenyan

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