A nation and The Hague in a bind as personal becomes political

If Kenyatta snubs the ICC, any warrant for his arrest would have to be carried out by Kenyan police, writes Susan Linnee

BETWEEN the last days of 2007 and the second week of 2008, at least 1,113 people were slaughtered in Kenya by men armed with machetes and other crude weapons in unprecedented violence that erupted over the disputed results of a presidential election.

When it became clear that no local court could be established to deal with the crimes, Kenya, which had become a signatory to the 1998 Rome Statute in February 2005, agreed to allow mediator Kofi Annan to hand over a list of suspects to the International Criminal Court (ICC) for prosecution.

“Don’t be vague, it’s The Hague,” sang the members of parliament who would not agree to a local tribunal, among them William Ruto and Uhuru Kenyatta. Both were later indicted by the court in the city in the Netherlands for crimes against humanity for their alleged role in co-ordinating the violence.

Mr Ruto, who was elected vice-president on March 4, has been on trial since September 10 and shuttles between Nairobi and The Hague.

In the first presidential debate of the election campaign earlier this year, Mr Kenyatta said he would submit to a trial at The Hague and called the matter “a personal challenge”.

But since assuming office, Mr Kenyatta and his lawyers have challenged his appearance at his trial scheduled to open on November 12. Last Saturday, the African Union (AU) met in an extraordinary summit and resolved that he should not go unless the court responds to its resolution that sitting heads of state and their deputies should be immune from prosecution.

The AU, celebrating its 50th anniversary this year, receives substantial support from the European Union and Japan.

“We would love nothing more than to have an international forum for justice and accountability, but what choice do we have when we get only bias and race-hunting at the ICC,” Mr Kenyatta told the assembly.

He said the court “has been reduced to a painfully farcical pantomime, a travesty that adds insult to the injury of victims. It stopped being the home of justice the day it became the toy of declining imperial powers.”

On Monday, Foreign Minister Amina Mohamed said Mr Kenyatta’s challenge had ceased to be personal upon his election and was henceforth national “and even regional”. She implied that he would not attend the opening of his trial.

In conflating his “personal challenge” with his office, Mr Kenyatta has placed his country, the economic powerhouse of East Africa, in a bind.

If he snubs the court, the prosecutor could issue a warrant for his arrest, something that would have to be carried out by Kenyan police, since the court has none of its own.

If the ICC does not respond to the AU’s demands, the western powers and the UN Security Council will face the unhappy decision whether to impose sanctions on the head of a major ally in the fight against Islamist terrorism in Africa.