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ICC developments and future risks for Kenya

Wednesday, August 19, was a busy day at the International Criminal Court (ICC) in The Hague. The ICC’s judges made two calls that could potentially have an impact on political risk in Kenya. The first important ruling was made by a panel of judges in the matter of the case against President Uhuru Kenyatta for alleged involvement in the violence that followed the 2007 election.

The ICC’s prosecutor, Fatou Bensouda, withdrew her case against Mr Kenyatta in December 2014, saying that her team did not have enough evidence to present in the case. She complained at the time that the lack of evidence was the fault of the Kenyan government, which had not handed over bank and telephone records that the ICC had asked it for, and that the government had thus “failed fully to comply with its obligations to the Court.”

After withdrawing the case against Mr Kenyatta, Ms Bensouda applied to the ICC to report Kenya to the Assembly of States Parties (the countries that belong to the ICC) for its refusal to co-operate. An earlier trial panel of judges decided not to do so, but on Wednesday an appeals panel overruled that decision and referred the issue of co-operation back to the trial chamber, saying that it had to separate the co-operation issue from the actual case against Mr Kenyatta.

If the trial chamber changes its original ruling, Kenya will be referred to the Assembly of States Parties and potentially next to the United Nations Security Council (UNSC), which could possibly impose sanctions. This process has no direct bearing on the case against Mr Kenyatta, although if Kenya hands over records under threat of sanctions, the prosecution could theoretically re-open the case. Any such development, if it happens, is years down the line, however.

Potentially more important, in our view, was the development in the case against Deputy President William Ruto and his co-accused, Joshua arap Sang, also for involvement in post-election violence (in those days Mr Ruto and his current boss were on opposite sides). In that case, a panel of judges acceded to Prosecutor Fatou Bensouda’s request that the prosecution be allowed to use the original testimonies of five witnesses hostile to the defence, who have since withdrawn or recanted their testimonies – under, it seems, some pressure from Mr Ruto’s agents.

The judges accepted Ms Bensouda’s argument that this “combination of intimidation and bribery” meant that the original testimonies are of more value than the changed ones. This also means that the defence team will not have the opportunity to cross-examine the witnesses, as only the original statements made to investigators will be used in court.

There are many steps involved in the co-operation case before there will be a real risk of sanctions. We will watch the issue, but think it unlikely in the extreme that the ICC’s trial panel, the Assembly of States Parties, and the UNSC will all make decisions against Kenya. The Ruto case is a different story, however, and if the case goes the prosecution’s way it could seriously destabilise Kenya.

The alliance Mr Kenyatta and Mr Ruto sealed to win the 2013 election represents a temporary allegiance between the Kikuyu and Kalenjin ethnic constituencies. There are serious historical animosities between the two communities on matters of land ownership and tenancy, especially in the Rift Valley and around Nairobi, and most of the post-election violence was between Kikuyus and Kalenjins in those areas.

If the alliance crumbles then we would expect the Kalenjin community to feel ‘dropped’ and the old issues would threaten to erupt again. At the same time Mr Kenyatta, for the sake of his political survival, would have to rapidly seal a new alliance, with a consequent realignment of all political coalitions in Kenya and an impact on governance and decision-making.

 Francois Conradie (Political Analyst)

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