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The trials and tribulations of prosecuting heads of states: Kenyatta and the ICC

- December 19, 2014

Kenyan President Uhuru Kenyatta appears before the International Criminal Court in The Hague, Netherlands, on Oct. 8, 2014. Prosecutors at the ICC said Dec. 5 that they are withdrawing charges against Kenyatta. (Peter De Jong/Pool/EPA)
International relations scholars are trying to understand if, and how much, the possibility of a war crimes prosecution is changing the political game. The limited scholarship has produced contradictory findings, in part because war criminals are experimenting with techniques to escape prosecution, and because the International Criminal Court’s (ICC) influence will be variable.
The ICC’s limited history makes it hard to draw any firm conclusions, meanwhile, every front page case seems like a litmus test of what the ICC might accomplish. The recent decision by the ICC’s Prosecutor Fatou Bensouda to drop the case against Kenya’s President Uhuru Kenyatta is a landmark in the history of the ICC, thus we need to understand what happened. Is Kenyatta’s failed prosecution the exception, or will it be the rule when it comes to indicting and prosecuting heads of state?
There are many reasons to think that the Kenyatta case was truly exceptional. In Eastern Africa, Kenyatta is like John F. Kennedy, John D. Rockerfeller, and Dick Cheney rolled into one. Charismatic and wily, Kenyatta has an unparalleled personal pedigree and investments that touch nearly every major industry in Kenya.  When we recognize the political power of Kenyatta, then the failed case mostly confirms what Marc Galanter identified in the 1970s – in legal politics, the ‘haves’ tend to come out ahead. Understood in this way, the Kenyatta case is neither the death knell of the ICC, nor a testament of the impossibility of prosecuting the crimes of a head of state.  In fact, the Kenyatta case is arguably testament to the potential of the ICC, since the indictment helped curb violence by Kenya’s rival leaders. Moreover, if we consider what might have happened if the prosecution proceeded, then dropping the Kenyatta case may have actually insured the future of the ICC in Africa.
It would be easy to blame the failure on the imprudence of the ICC’s prosecutor in investigating Kenyatta’s crimes. Kenyatta was indicted for his reputed role in organizing and funding ethnic violence following the contested Kenyan elections of December 2007.  The ICC’s then prosecutor, Luis Moreno Ocampo, indicted Kenyatta alongside leaders of the different ethnic groups. Some people questioned the quality of the case from the beginning, but Ocampo was neither rash nor imprudent in his decision.  A Nairobi-based international commission had thoroughly investigated the violence, generating a 500-plus page report documenting crimes and naming names. The report identified the culture of impunity as a contributing factor perpetuating violence, and called for the creation of a special Kenyan tribunal to prosecute the organizers of the post-election violence. After 10 months and two failed attempts to create this tribunal, the commission forwarded boxes of documents to the ICC, identifying the six leaders it saw as most responsible for the violence. At that point, Ocampo had few options. Kenya is a signatory of the Rome Statute. Indicting all parties is better than picking sides, and there were no viable domestic or regional alternative.
The problem was that events were already overtaking the ICC’s efforts.  Before the ICC launched its investigations, two of the accused signaled their intention to run for president in the 2013 elections.  What then followed was a game of chicken between Kenyatta and the ICC, only Kenyatta has many more resources and allies to tilt the game in his favor.
Uhuru Kenyatta is the son Jomo Kenyatta, Kenya’s first president. He served from 1964 until his death in 1978. Groomed for political office since he was a child, Uhuru Kenyatta draws on his social connections of the dominant Kikuyu tribe, and an extensive business empire that provides economic and political leverage to make or break the personal future of many Kenyans. Kenyatta is also deeply loved for his family’s many contributions to building a democratic independent Kenya.
Ocampo indicted Kenyatta and his political rival William Ruto in November 2009, hoping that the indictments would undermine their political bid for office.  The two former antagonists instead joined forces, fending off efforts in the Kenyan courts to have their candidacy disqualified because of the ICC indictment.  They then won office in an election that is praiseworthy for its relative fairness and peaceful contrast to the 2007 elections. Both leaders contributed to the reality that today Kenya is very different compared to 2007, when the election violence occurred.  The 2010 constitutional reform has greatly transformed Kenya’s politics, judiciary and society. By not obstructing the efforts of others, and by continuing the path of constitutional reform, Kenyatta has contributed to the reality that Kenya’s economy is booming. He is also seen as a strong leader in the fight against extremist al-Shabab fighters that have targeted Kenya for its efforts to stem violence in Somalia.  These changes in Kenya’s politics and society help us understand why many people view Kenyatta as a constructive force in Kenyan and African politics.
Kenyatta has also been astute in playing the politics of this ICC investigation. Openly, and unlike Sudan’s President Omar Hassan al-Bashir and other outcast leaders, Kenyatta has been a cooperative participant in the ICC’s investigations. Yet there is good reason to believe that covertly Kenyatta sabotaged the ICC’s effort. According to Bensouda, Kenya’s government has been threatening, intimidating and disappearing witnesses, leading to the collapse of their case.  Meanwhile, alongside his putative cooperation, Kenyatta cocked a political gun that he could well have used had his sabotage failed. Kenyatta helped organize the extraordinary October 2013 meeting of the African Union where leaders tested political support for  a mass African walkout from the ICC Charter. Trying to delay prosecution and avoid a personal appearance at the Tribunal, in December of 2013, Kenya’s Parliament authorized the government to secede from the ICC’s Rome statute. It is worth noting that the prosecutor refused to be intimidated by these threats. Still, Kenyatta’s personal appearance as an indicted war criminal at the Hague was as far as Bensouda could get in her case.
One problem for the ICC’s prosecutions is that testifying against Kenyatta is personally dangerous.  Witness protection is, in this case, not an antidote, because Kenyatta’s political supporters can target the social and economic well being of witnesses’ family, tribe and broader relations. Equally difficult is that both Kenyatta’s supporters and critics prefer to look forward to the future Kenyatta can help create instead of backward to the violence of 2007.
Future political leaders will draw inspiration from Kenyatta’ clever obstructionist tactics, but it is doubtful that most leaders have the skill or political cache to carry off a repeat of this story.  Kenyatta won his game of chicken by being popular, and by not repeating the behavior that led to his indictment in the first place. In replacing the memory of the 2007 election violence with a peaceful and productive political alliance, Kenyatta created a credible sense that pursuing his crimes now would actually be counter-productive to the goal of a peaceful and stable East Africa.
The end of the impunity era contributed to this outcome.  The intense spotlight on the ICC’s indictment, and the need for Kenyatta to not be the war criminal his opponents claimed him to be, was arguably a moderating force that added pressure on all political parties to avoid a repeat of the December 2007 violence.
One lesson of this story is that powerful actors have many tools to undermine prosecution.  Another is that as long as a leader reinvents himself as a force for good, he can be protected by the goodwill of his people and allies. This is not the case for Sudan’s al-Bashir, Syria’s Bashar al-Assad, or North Korea’s Kim Jong Un. Leaders who continue to build enemies, and risk coups and relentless pursuit by victims who will try to arrange prosecution in any jurisdiction where the leader seeks refuge.
Since Kenyatta was likely to have escalated rather than folded, perhaps we should be happy that the confrontation has ended. Having been cleared from prosecution, Kenyatta is likely to continue to be a publicly cooperative supporter of the ICC, and he may even be genuinely helpful where he believes that prosecution is a helpful means to a political end.  Kenya never did withdraw from the ICC’s Rome statute.  The Kenyan arrest warrant for al-Bashir remains in force.
At the end of the day, international courts are subject to the same sorts of politics as are courts everywhere. My new book, “The New Terrain of International Law: Courts, Politics, Rights builds theory by understanding that today’s international courts are more similar to Supreme Courts around the world than they are to international courts of the past. All courts traffic in the currency of legality.  Kenyatta understood this.  He did not want the label of war criminal, and he understood how to bend the legal system to his will. Kenyatta is not the first, nor will he be the last, powerful actor to play legal politics and win. The interesting point is that Kenyatta was forced to play legal politics, and that doing so moderated violence even if it is hard to measure the ICC’s direct effect on Kenyan politics.
 Karen J. Alter is a Professor of Political Science and Law at Northwestern University, the author of The New Terrain of International Law: Courts, Politics, Rights and a former participant of The OpEd Project.