The Kenyatta case shows that the International Criminal Court needs to reset it relations with Africa

Prof. Tom Zwart

Prof. G.J Alexander Knoops

In April the newly elected Kenyan President, Uhuru Kenyatta, was sworn in during a public ceremony in Nairobi. While many African states, as well as countries like China and Russia were represented at the highest level, Western states had deliberately sent only lower ranking officials. The reason was that President Kenyatta has been indicted by the International Criminal Court (ICC). He is accused of having committed crimes against humanity by playing a role in orchestrating the violence after the 2007 elections. 

This lowkey presence amounts to a denial of the presumption of innocence. After all, at this stage President Kenyatta is only a defendant and therefore entitled to be presumed innocent until proven guilty. By comparison, when the American President Bill Clinton was impeached for high crimes and misdemeanours in 1998, Western states did not scale down their contacts with the Administration, nor did they have to. Therefore, one cannot blame African observers for believing that a double standard is being applied here.   

The presidential elections in Kenya turned into a referendum on the ICC, which emerged with a bloody nose. The Court has undoubtedly itself contributed to this state of affairs. It had several means at its disposal to prevent this clash, but it proved unwilling to use them.

Firstly, President Museveni, who spoke during the inaugural, observed that the case against Kenyatta should have been dealt with at the national level. There is strong support for this position even at the Court itself. In a dissenting opinion to the decision to charge Kenyatta and his co-defendants, Judge Hans Peter Kaul indicated that the violence committed in 2007 did not amount to crimes against humanity. Therefore, the Court lacked jurisdiction to try the case, which instead should have been prosecuted before an ordinary Kenyan criminal court. The majority of the Pre-Trial Chamber, however, decided to continue with the case regardless. 

Secondly, highly charged cases like this, in which it is difficult to prove the facts and to determine who is most responsible, can best be settled with a plea deal. President Kenyatta could express regret for his failure to prevent loss of life after the 2007 elections, in exchange for the charges to be dropped. Although other international tribunals resort to plea-bargaining to facilitate reconciliation, the ICC has not yet done so, probably because it believes that it should be above such ‘horse-trading’. However, in the Kenyatta case, such an agreement would not only allow it to give Kenyatta a slap on the wrist, but also to invest in its standing in the region.

By not seizing these opportunities until now, the Court has done itself a disservice. Opposing the Court has become a way for Africans to assert their independence from the West, which is boosted by impressive growth figures and closer relations with China. During the ceremony President Museveni indicated that he too is losing patience with the Court. His critical remarks are a telling sign that the tide is turning. In 2003, he breathed life into the ICC by agreeing to refer the first much needed case to it. Now, the time has come to ‘reset’ the relationship between Africa and the ICC. This can be done by taking two important steps.

   

Firstly, as President Museveni rightly pointed out, the ICC is being driven by legalism, i.e. the idea that its work should be determined entirely by law without taking the political context on board. Interestingly, since the Rome Statute does not prescribe legalism, the decision not to engage in politics is by itself political. The idea that the Court operates on a strict diet of pure law is a myth, which is rightly met with scepticism in Africa. Therefore, Africans tend to see the ICC for what it is, a political actor, and they treat it that way. To maintain its legitimacy the Court should therefore acknowledge this political dimension to its work.

Secondly, in his inaugural address President Kenyatta made clear that no one country or group of countries should have control or monopoly on international institutions or the interpretation of treaties. The ICC does little to honour the African sense of justice, although the Rome Statute allows it to apply African criminal law notions like restorative justice, reconciliation, and peace as an integral part of justice, as well as respect for local culture. If the Court succeeds in showing that it takes these elements of African justice seriously, its legitimacy will increase, and so will the compliance with its rulings.

Uhuru Kenyatta (Left) shakes President Museveni hand at  President Kenyatta's Inauguration

President Kenyatta’s observations are reflected in an initiative, taken by legal academics form Africa and elsewhere, which is aimed at combining more respect for African justice on the part of the ICC with increased cooperation on the African side. It is important that both sides soon endorse this initiative, led by professors Laurence Juma from Rhodes University and Tom Zwart from Utrecht University, before irreparable damage occurs. 

Guest Post by Alexander Knoops & Tom Zwart

Alexander Knoops is a Professor of International Criminal Law at Utrecht University; Tom Zwart is a Professor of Human Rights at Utrecht University.