On Monday, Kenyan President Uhuru Kenyatta took an unprecedented step, exercising his power under article 147, section 3 of the Kenyan Constitution, appointing the Deputy President William Ruto to serve in his stead while he attends proceedings at the International Criminal Court.
Kenyatta’s unexpected announcement is a major step in a long period of legal wrangling with the Court, and an important step in the Court’s credibility and legitimacy across the African continent.
Kenyatta’s response to the indictment stands in sharp contrast to the reaction of the only other current head of state under indictment, Sudanese President Omar al-Bashir.
While Kenyatta has long attempted to work with the Court, cooperating while asking for special treatment so that he can tend to the difficult business of running a country, al-Bashir has been confrontational, refusing to accede to the Court’s jurisdiction and restraining his travel in an effort to never find himself in The Hague.
The contrast between the two is informative on the strained relationship between the continent and the Court.
Ever since 2008, when al-Bashir was became the first sitting head of state to be indicted by the ICC, the Sudanese President has stood in open defiance to the Court and its advocates. The indictment alleges that al-Bashir masterminded genocide, crimes against humanity and war crimes against his own people, something that has far from stopped in the country.
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Additionally, Chad, itself a party to the Rome Statute, violated the ICC’s requirement that member states arrest indicted individuals, when in 2010 the Sudanese President attended a conference in the country’s capital, N’djamena. He has also visited several non-member states with impunity.
The Waki Report
Kenya’s relationship with the ICC has been much different. To start, while Sudan came to the Prosecutor’s desk by a Security Council referral without the country’s consent, the Court’s investigation into Kenya’s post-election violence stemmed from the recommendation of a commission and judge Philip Waki.
Throughout the investigation Kenyatta has worked with the Court, acknowledging its jurisdiction and defending himself against its claims, all while attempting to be present for very little of the proceedings due to his newfound role as the country’s President.
Even while Kenyatta agreed to the Court’s jurisdiction on the matter, there were numerous attempts to mitigate or quash the indictment. At a recent annual meeting the African Union took the extraordinary step of laying the groundwork for its own Court, the African Court on Justice and Human Rights, that would co-opt the role of the ICC across Africa.
The African Court notably provided for absolute head of state immunity, ensuring that elections had the power to erase human rights abuses and leaders like al-Bashir and Kenyatta never found themselves answering for alleged crimes.
The African continent has had a complicated relationship with the International Criminal Court since the tribunal’s earliest days. There have been constant complaints of bias against Africans, who have been the subject of the majority of the Court’s investigations and indictments.
In fact, more investigations have been opened into African states than the rest of the world combined. This has fed into a narrative by critics that the Court is a neo-imperialist tool of the West meant to further subjugate Africans to Westerns whims.
With such a narrative in mind, it has been easy for al-Bashir to flout the indictment while still remaining in power and out of international isolation.
Periods of Indecision
Kenyatta has taken another path, opting to work with the Court and agree to its jurisdiction, though the pre-trial motions have been fraught with difficulty. There were periods where it appeared that rather than the President facing the Court, the country would pull out of the Rome Statute and attempt to remove any acknowledgment of the Court’s jurisdiction.
Kenyatta’s announcement on Monday reaffirmed his commitment to stand trial for his actions at The Hague.
Kenyatta’s announcement is not an end, but a beginning. A trial will take place that will determine the future of the Kenyan President. A prolonged jail sentence could be in his future.
What the announcement does signify is that rather than turning his back on the Court, claiming bias or executive immunity and refusing to work with the Court, Kenyatta will travel to The Hague to plead his case.
This participation will go a long way for the Court’s legitimacy. Perhaps, some day, as the legitimacy and gravitas of the Court grows, the same can be said of Omar al-Bashir, but unfortunately, that day is yet to come.
Andrew Friedman is a human rights attorney and consultant who works and writes on legal reform and constitutional law with an emphasis on Africa. He can be reached via email at email@example.com or via twitter @AndrewBFriedman.