Does the ICC have an Africa problem?

The International Criminal Court (ICC) has an Africa problem. Thirty-four of the 122 signatories to the Rome Statute, which established the court, are African countries — more than from any other continent. Since it was formed in 2002, the court has opened investigations in 20 criminal cases in eight African states. It is currently pursuing more cases in Africa than in all other world regions combined. This disproportionate focus on the continent has been a subject of intense scrutiny in recent years.

Amid growing discontent among African countries, the ICC’s future and its relationship with Africa now rest squarely on the outcome of two cases. Kenyan President Uhuru Kenyatta and his deputy, William Ruto, along with radio journalist Josiah Sang are accused of crimes against humanity — a charge they all deny — in connection with electoral violence in the aftermath of the disputed 2007 presidential election.

Last year was a particularly tumultuous one for the court’s relationship with Africa. Fresh off a hard-fought electoral victory, Kenyan officials embarked on shuttle diplomacy, crisscrossing ICC-member African states and lodging a request for deferral of the cases at the United Nations Security Council.

In September the African Union (AU) wrote to the ICC requesting referral to local courts, noting that Kenyan constitutional reforms from 2010 were sufficient “to allow for a national mechanism to investigate and prosecute the cases.” The AU referenced the newly reformed judiciary as a justification to bring the cases back to Kenya in order to avoid the ICC trials.

In October, when the ICC declined to refer the cases to local courts, the AU held an emergency summit to discuss a Kenyan motion that called for mass withdrawal of African countries. “The ICC has been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims,” Kenyatta said in opening remarks at the summit. “It stopped being the home of justice the day it became the toy of declining imperial powers.” Despite intense lobbying from Kenyan and other African leaders, the proposal for mass withdrawal did not pan out.

The AU also filed a separate deferral request with the U.N., emphasizing that Kenyatta and his deputy needed to focus on the aftermath of an attack by the Somali militant group Al-Shabab on an upscale shopping mall in Nairobi. The resolution in the U.N. Security Council, which requires nine votes and an absence of vetoes to pass, drew only seven of the 15 members in its favor, while the remaining eight — including France, the United States and Britain — abstained.

Electoral violence in Kenya did not start in 2007. It was rather a logical outcome of the violent arc that the country has been on since 1991. At least 4,433 people have died and more than 1.8 million were displaced in election-related violence since the introduction of Kenya’s multiparty system, according to the Global Centre for the Responsibility to Protect. For too long, President Daniel arap Moi, the country’s second and longest-serving president, opposed a multiparty system, arguing that it would entrench ethnicity.

In December 1991, he grudgingly accepted it amid a chorus of international pressure to suspend aid to Kenya. Yet in order to maintain his grip on power, Moi deployed the state security forces to unleash violence in areas deemed supportive of the opposition.

In the first two multiparty elections, in 1992 and 1997, security forces and party youth flushed out opposition supporters, especially in the Rift Valley — home to the Kalenjin and epicenter of electoral violence in Kenya. There has been remarkably negligible prosecution of perpetrators of these cases.

Until 2010, when a new constitution, which instituted police and judiciary reforms, was promulgated, the ICC’s investigation served as the only deterrent to a return of violence. Still, without a pending criminal accountability case, the cycle of electoral violence could not have been stopped solely through reconciliation or constitutional reforms.

During last year’s Kenyan elections, Kenyatta and Ruto’s coalition, the Jubilee Alliance, built its entire campaign architecture on anti-ICC rhetoric. They won the elections by 50.07 percent, avoiding a runoff by only 8,100 votes.

The Jubilee was a counterintuitive alliance. Since the multiparty system was introduced in Kenya, Kenyatta’s ethnic group, the Kikuyu, and Ruto’s Kalenjin have always clashed during elections. In 2007, Kenyatta and Ruto supported opposing political parties, as did their communities. Fighting each other on opposite sides during post-election violence, the two groups were the most heavily affected. The violence left more than 1,200 people dead and 600,000 internally displaced.

Political alliances in Kenya are fickle, and are hardly based on ideological or public policy commitments. They are rather based on ethnicity. Kenyatta and Ruto’s alliance was not an exception. Despite their long history of mistrust, the ICC served as the temporary glue that held the two leaders and their communities together.

The simmering tensions between the Kikuyu and the Kalenjin are also informed by the fact that some Kikuyu migrated to the Rift Valley and took away some land from the Kalenjin. According to Kenya’s 2009 census, the Kikuyu constitute 22 percent of Kenya’s 38.6 million population, and the Kalenjin make up about 12 percent. Candidates with majority support from these two communities typically do well at the polls. But instead of addressing the land disputes, Kenyan politicians often wait for elections to whip up ethnic sentiments. It’s this political calculus that forced Kenyatta and Ruto to bury their differences in the 2013 election.

But the outcome of the ICC cases, especially a mixed verdict in which one of the two leaders is convicted and the other is acquitted or manages to get his charges dropped, will severely test the durability of their coalition. The breakup of the Jubilee Alliance could have far-reaching consequences for peace and security in the Rift Valley.

The ICC debate evolved along two distinct lines in Kenya — impunity and Western imperialism. Supporters argue that the court’s involvement there will break the deeply entrenched and pervasive culture of impunity, while opponents accuse the treaty-based court of being a tool of Western imperialists in Africa.

Those accusing the ICC of imperialism warn that the court’s involvement would derail ongoing reconciliation efforts, thus undermining peace. Proponents of the court say the search for justice and the search for stability and peace are not mutually exclusive. In fact, the ICC intervened because the domestic judicial system failed to prosecute suspected perpetrators.

Kenya’s judiciary is not known to be independent from the executive branch, which appoints it. In the face of a pitiful accountability record, even those mildly swayed by the anti-imperialist rhetoric were hard pressed to fully accept it. Further, Kenyatta and Ruto weakened their imperialism argument by hiring Western lawyers and PR machines.

Besides, the ICC’s intervention was a function of a mediation panel led by former U.N. Secretary-General Kofi Annan after the 2007–08 election crisis. The panel was created by the AU under the auspices of eminent African personalities, including Tanzania’s former President Benjamin Mkapa and former South African first lady Graca Machel.

The bill to establish a local tribunal, following recommendations of the panel, was defeated in the Kenyan parliament twice. At the time, Kenyan politicians including Ruto said they preferred going to The Hague. Many MPs cited the judiciary’s lack of independence to explain their votes against a local tribunal. Expecting the ICC process to be a long and protracted battle, Ruto’s supporters in parliament famously said, “Let’s not be vague, let’s go to The Hague.” These same MPs are now disparaging the ICC as an imperial instrument.  

A locally owned process dispensing justice would have been a preferred option. Even after the defeat in parliament, the mediation team was keen to explore an administrative mechanism to establish a local court. Realizing there was little appetite and no political will to set up such a tribunal, Annan eventually handed over the list of names and evidence gathered by the commission to former ICC prosecutor Luis Moreno Ocampo, who initiated the case.

Kenyatta’s trial was initially slated to begin this week, but it was postponed for a fourth time last month when prosecutors said another witness had withdrawn and requested more time to conduct further investigation. The defense is now arguing that the charges should be dropped because the prosecution simply does not have sufficient evidence.

Regardless of the outcome of the case, the ICC will be damned. A conviction will serve as a self-fulfilling prophecy for those who accuse the court of “race hunt” and selective justice targeting Africans. It will also be the first time a sitting head of state will have been convicted by the court. However, such an outcome will undoubtedly poison the already tenuous relations between the court and African states.

In all likelihood, following the status conference on the case on this week, the Kenyatta case could collapse due to noncooperation on some of the information, including access to his bank records, that the prosecution is asking for.

Dropping charges, or an acquittal in the case, would be a huge blow for the victims of the violence in finding justice and closure. Further, such an outcome will be seen as yet another failure by the court to successfully convict a high-profile defendant. It would be a vindication for opponents of the court who felt this was a “political” trial all along.