Kenya’s key international relationships could be endangered if a politician indicted by the International Criminal Court, ICC, wins presidential office in next week’s election. Just how, though, no one is clear.
Deputy Prime Minister Uhuru Kenyatta wants to be president, and has chosen another ICC indictee, former higher education minister William Ruto, as his running-mate in their Jubilee Coalition.
Kenyatta and Ruto both face trial in The Hague in proceedings that were due to start in April but which could now be delayed until later this year, following a request from defence lawyers.
The candidates are accused of orchestrating the bloodshed which followed the last presidential election in December 2007. Two other men charged with crimes against humanity will join them – former civil service chief Francis Muthaura and journalist Joshua Arap Sang.
More than 1,100 people were killed and 600,000 displaced in months of violence, which ended with an agreement to set up a coalition government.
Recent opinion polls put Kenyatta and Ruto marginally ahead of their chief rivals, the current prime minister Raila Odinga and vice-president Kalonzo Musyoka, who together represent the CORD (Coalition for Reforms and Democracy) alliance.
On February 15, Kenya’s High Court dismissed a petition that would have prevented Kenyatta and Ruto from running for office.
The United States’ top diplomat for Africa, Johnnie Carson, is among the foreign envoys who have openly warned of the implications of having a president who is charged with international crimes in The Hague.
“It is… important to know that the choices have consequences,” Carson said in a teleconference with Kenyan journalists earlier in February. “We live in an interconnected world, and people should be thoughtful about the impact their choices have on their nation and the world.
“Individuals have reputations, images, histories and are known for who they are, what they do, what they say, and how they act.”
Following Carson’s remarks, Britain made clear its policy not to meet ICC suspects for anything other than essential matters.
“We cannot meet ICC indictees, except for essential business,” High Commissioner Christian Turner told IWPR, declining to elaborate.
In informal conversations with IWPR, diplomats from other European Union states spoke of the dilemma the international community is facing. On the one hand, their governments want to make it clear they would avoid contact with ICC suspects. But on the other, they do not wish to be seen to be trying to influence the choices made by Kenyans, either by publicly opposing Kenyatta and Ruto or by appearing to endorse them through silence.
The very fact that diplomats have spoken out on the issue shows the level of international concern about the possibility that Kenya will be led by ICC defendants. In addition to the difficulty of managing diplomatic relations, there are fears that if elected, Kenyatta might stop cooperating with the ICC, and that the country would become isolated.
The country is a major trading centre for the West and for countries in wider East Africa, which rely on the port of Mombasa to do business. Kenya is also a vital security partner for Britain and the US, and its army is involved in fighting the Islamist group al-Shabaab in neighbouring Somalia.
As Carson put it, Washington regards Nairobi as the “most significant diplomatic posting” in Africa.
The tough comments by diplomats come in the wake of statements by ICC prosecutor Fatou Bensouda, who complains that the Kenyan government is not cooperating with her office’s investigations.
This presidential election has also reawakened fears of a repeat of the bloodshed that followed the last one, given that recent months have seen a spate of violent incidents.
“We are gearing up for the fact – which the diplomats are also recognising – that these elections could be quite scary,” David Anderson, professor of African history at the University of Warwick, said. “And I think there is a lot of anxiety emerging about what is going to happen.”
Kenyatta and Ruto have tried to suggest that the international community is meddling in Kenya’s internal affairs, and that those who favour cooperation with the ICC are unpatriotic.
Nor are past reactions to similar criticisms of Kenya encouraging.
Former United Nations Secretary General Kofi Annan came in for heavy criticism from the Kenyatta-Ruto campaign last year when he warned Kenyans that electing ICC suspects would not be in their country’s interests.
Annan was speaking as head of an international panel which the African Union appointed to mediate in the dispute over who won the 2007 election.
It appears, however, that some western states feel they have been left with little choice but to highlight the risks.
“There is a lot of tension around whether or not diplomats on the spot ought to be saying anything that is election-related at all at this point,” Anderson told IWPR. “So the fact that they’ve spoken out the way they have means things really are pretty awful. This is high-risk. It surprised me.”
No one is really clear, however, what the practical response would be if Kenyatta did become president.
“There are limits to what the international community can do. And they know it. They are not going to welcome this, but it is not something they can do an awful lot about,” Anderson said.
One obvious comparison is with neighbouring Sudan where President Omar al-Bashir is wanted on genocide charges in The Hague, and three other officials have been charged by the ICC.
However, while Sudan is subject to US and UN Security Council sanctions, these do not relate to the ICC charges and the government’s non-compliance. Instead, they were imposed because of conflict and humanitarian crises in Darfur and more recently in Blue Nile and South Kordofan, as well as because of the government’s alleged connections with terror networks.
Carson was quick to warn against any parallels between Kenya and Sudan.
In reference to US sanctions on Sudan, he told IWPR, “None of that, please underscore that, none of that applies to Kenya.”
Any steps the international community takes are likely to depend on whether Kenyatta and Ruto continue to cooperate with the ICC if they are elected.
James Shikwati, a director of the Inter Region Economic Network in Nairobi, told IWPR, “I doubt sanctions will be imposed if the two are elected and cooperate with the court. I think there may, however, be a shift of focus [on the part of] major powers to other neighbouring countries.”
Even if formal sanctions are not on the cards, that does not mean Kenya’s international relationships would be unaffected.
Professor Ben Sihanya, a law scholar at the University of Nairobi, believes Kenyan voters should heed what foreign diplomats have said.
“No one is second-guessing them [diplomats]; it’s not rumours either. They are the ones saying it and its all on record – that it will not be business as usual in their dealings with Kenya should the two ascend to the presidency,” he said.
Sihanyi recalled that in past periods of crisis – before Kenya adopted multi-party politics in the early 1990s, and again during the violence that followed the 2007 election – the international community matched its words with actions.
“In 2008, most western governments announced it would not be business as usual until the Kenyan leadership got its act together. And true to their word, they froze their dealings and programmes,” he said, referring to governance, justice and legal reforms that had been backed by Canada, Denmark, Finland, Germany and Britain.
Professor Karuti Kanyinga of the Institute for Development Studies at the University of Nairobi also warned against complacency.
“Why would the west need Kenya when Tanzania can fit the shoe? In regional politics, there is always an alternative. Ethiopia can serve the military purpose. Tanzania can service economic interests now that their size of economy is almost matching Kenya,” he said.
Nzau Musau is a reporter for ReportingKenya.net and The Star newspaper in Nairobi. Simon Jennings, IWPR’s Africa Editor, also contributed to this report. This article was produced as part of a media development programme by IWPR and Wayamo Communication Foundation in partnership with The Star.