Kenyan president asks ICC to drop his case

Originally published in World Mag.com

In an unprecedented move for a sitting head of state, Kenyan President Uhuru Kenyatta has appeared before the International Criminal Court on charges he committed crimes against humanity.

During a status conference hearing, a private meeting between the judges, the prosecution, and the defence, the court considered whether prosecutors have enough evidence to move forward to trial. The defence has requested the case be dropped.

Kenyatta is is accused of being criminally responsible as an indirect co-perpetrator of post-election violence in 2007 and 2008, including murder, forcible transfer of people, rape, persecution, and other inhumane acts. His appearance at The Hague is a first, since no sitting head of state has ever submitted to the court’s authority.

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But technically, Kenyatta wasn’t in charge of his country when he arrived at court. Before traveling to The Hague, Kenyatta invoked the Kenyan constitution to appoint his deputy president, William Ruto, a suspect in another ICC case, as acting president for the duration of his absence. The temporary transfer of power also is unprecedented, since it has never before happened in Kenya. 

On Wednesday, when Kenyatta appeared before the court, he waived his right to speak and instead responded to the judges through his lead counsel, Stephen Kay. The prosecution claims it does not have enough evidence to move forward. But prosecutors blame the deficit on obstruction by the Kenyan government, headed by Kenyatta.

The case against the president and the deputy president has sharply divided Kenyans along party and tribal lines, with mixed opinions about the court’s insistence Kenyatta appear in person. The ICC’s supporters agree with the court’s contention the case has reached a critical stage and therefore the president had to be present. Kenyatta’s sympathizers say the court’s decision was meant to embarrass the president.

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Renowned Kenyan political analyst Mutahi Ngunyi said the president was expected to appear at The Hague in his official capacity, to explain why his government refused to cooperate with the court, per the prosecution’s claims.

“This move by the President [to relinquish the presidency] is a big blow to the prosecutor given the fact that there was high expectation from the court that he would decline to appear personally at The Hague,” Ngunyi said. “In an event that he had refused to honor the court’s summons, a warrant of arrest could have been issued against him.”

The Kenyatta case has drawn a lot of interest in Africa, with both the African Union and the Intergovernmental Authority on Development (IGAD), issuing statements supporting Kenyatta. Maalim Mahboub, IGAD’s executive officer, said in the interest of the fight against terrorism in East Africa, the ICC ought to put off Kenyatta’s case until after he leaves office.

Based on the prosecution’s submissions, many people believe the case has crumbled and it is only a matter of time before it is closed.

“I think as the prosecutor said, he was looking for a hook on which to hang this case and he has ran out of hooks. … To try and drag on the case is very unfortunate and they are coming out very badly. … It is the ICC that is on trial,” said Raphael Tuju, a former foreign minister in Kenya. 

Dov Jacobs, a professor of International Criminal Law at Leiden University in the Netherlands thinks there is still a slim chance the judges might not drop the case: “If the trial chamber decides that Kenya should cooperate and based on the evidence they have, decides that Kenya has not been cooperating, it is very likely that they will not terminate the case and refer Kenya to the assembly of state parties for further action.”

In his characteristic style, Ugandan President Yoweri Museveni told a huge crowd during independence celebrations in Kampala that African countries should reconsider their relationships with the ICC, labeling it a biased instrument of post-colonial hegemony.

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In her final submission, lead prosecutor Fatou Bensouda tried to dispel claims the prosecution has no evidence. The prosecution has enough evidence that Kenyatta helped to procure weapons that were used in the post-election violence, and that he bankrolled militia who went on a killing spree, she said.

After returning to Kenya, the president told an enthusiastic crowd of supporters that even if the court grants an adjournment, he is confident he will eventually win the case. Kenyatta maintains his innocence.