The ICC prosecutor has dropped the charges against President Uhuru Kenyatta, citing the lack of evidence due to non-cooperation by the Kenyan government. Mr. Kenyatta stood accused of playing a significant role in the 2007-08 post-election violence in Kenya in which at least 1300 people died and over 300,000 were displaced.
Four quick observations.
- The Kenyan case was always going to be a tough one for the ICC. Kenya is neither the DRC nor Sudan. As soon as Kenyatta got elected Brussels, London, and Washington made it clear that they would not sacrifice their economic and geopolitical interests in the wider eastern Africa region on the alter of justice. This gave Mr. Kenyatta latitude to attack the legitimacy and legality of the ICC case against him both through the African Union (AU) and Kenyan diplomatic channels. Back in Kenya witnesses disappeared or withdrew their testimonies. The Office of the Prosecutor repeatedly said that the Kenyan state refused to hand over evidence relevant to the Kenyatta case. All this while Western embassies remained quiet about the case (for fear of “losing” Kenya to China).
- This leads me to conclude that in a perverse way, the collapse of the Kenyatta case might actually be good for the ICC. The court (and OTP) can save face by arguing that they had the authority to prosecute the case but lacked cooperation from the Kenyan state. Now, the biggest challenge for everyone involved is how to ensure that this does not get interpreted as blanket immunity for all sitting presidents who are suspected of committing atrocities against their citizens. The deterrent effect of the ICC should be preserved.
- The collapse of the case has interesting implications for Kenya’s domestic politics. It is common knowledge that the political union between President Kenyatta and Deputy President Ruto ahead of the 2013 election was primarily driven by their ICC cases. Mr. Kenyatta’s case has collapsed. Mr. Ruto’s is ongoing. This will diminish Mr. Ruto’s bargaining power in the alliance. It will also demand for Kenyatta’s allies to walk a tight rope and ensure that they do not signal to Ruto’s supporters that they no longer need them now that Kenyatta is off the hook. Ruto’s bloc, URP, has the second largest number of MPs in the National Assembly. This will give him leverage of some sort, even as his case goes on. Simply stated, without the ICC bond, the union between Kenyatta and Ruto will become more transactional. This means that mistakes will be made, and each side will have to try hard to ensure that disagreements over specific issues do not get blown out of proportion. Knowing Kenyan MPs, this will be a tall order.
- Lastly, now that the ICC is behind him President Kenyatta might actually seriously tackle the issue of insecurity in Kenya. It is widely known that since he took office his approach to security matters has been informed by the desire to rid his administration of anyone who might have been sympathetic to the ICC. The former chief of intelligence (who may have played a role in “fixing” both Kenyatta and Ruto) and other senior officials who may have testified against him were let go. It took the slaughter of more than 450 Kenyans at the hands of terrorists and armed bandits over the last 18 months for the president to fire the chief of Police and the Cabinet Secretary in charge of internal security. One can only hope that now Kenyans will get a more responsive security sector.
What does this mean for reconciliation in Kenya? Not much. 2007-08 shattered the myth of Kenya as a peaceful oasis in an otherwise volatile region. Kenyans are yet to comprehensively deal with the shock of seeing what neighbors could do to one another. The preferred MO has been to sweep things under the rug. That was the logic of the Kenyatta-Ruto alliance (the land issues that erupted in clashes between their respective constituencies have not been resolved). It is the same logic that drove the peace-at-all-costs campaign that stifled open discussion of contentious national issues ahead of the 2013 election.
For better or worse, Kenyans are desperate to move on past 2007-08. But the weight of historical injustices, inequalities, and the continued failure to address them are constant reminders that 2007-08 might happen again.