April 12, 2013

At his inauguration on April 9, Kenya's new president, Uhuru Kenyatta, promised to uphold "international obligations". This was most likely a reference to the International Criminal Court. Kenyatta and his deputy, William Ruto, are to stand trial before the ICC for crimes against humanity allegedly committed during the country's election-related violence in 2007 and 2008.

But this pledge came with a caveat. International obligations would be upheld, he said, provided they are founded on "mutual respect and reciprocity". As the product of a global treaty, the ICC depends on the mutual respect of its 122 member countries, including Kenya. The real question is what respect Kenyatta and his new government will show for the court. The previous government's record was deeply ambivalent. The ICC prosecutor stepped in when Kenya's national authorities failed to bring to account those responsible for the 2007-2008 violence, which claimed more than 1,100 lives and forced as many as 650,000 people from their homes.

Government officials and members of parliament swiftly challenged the court. Parliament pressed the government to withdraw Kenya from the ICC treaty, while a faction of the government campaigned for a United Nations Security Council deferral. Kenya petitioned to retake the cases, as was its right, but lost when ICC judges found no evidence of national investigations. As the cases have neared trial, Fatou Bensouda, the ICC prosecutor, has reported that the government has stalled or failed to assist its investigations, contrary to its ICC obligations. She cited this problem as one factor in her recent decision to drop the charges against Kenyatta's former co-accused, Francis Muthaura. The government is now seeking, before the ICC judges, to refute this claim of limited assistance.

Kenyatta and Ruto sent contradictory messages during the campaign. The two, who stood on opposite sides of the political divide in 2007 and are accused of organising attacks against each other's supporters, have now been united by the ICC's charges. On the one hand they pledged their cooperation to the ICC, while on the other they at times painted the election as a referendum on the ICC and the court as a tool of western imperialism. Indeed Kenyatta's caveat at his inauguration also came with a warning. He cautioned that no one country or group of countries should control international institutions or the interpretation of international treaties. As the keynote speaker, Uganda's president, Yoweri Museveni, praised Kenyan voters for resisting "blackmail" by the ICC and accused "arrogant actors" of "using [the ICC] to install leaders of their choice in Africa".

This trades neatly on the canard that the ICC – with all eight of its investigations in Africa – is targeting the continent's leaders. This conveniently ignores that four investigations were referred to the court by the government concerned and two by the UN Security Council. Museveni himself sought the ICC's investigation in Uganda and hosted the court's states parties at a conference in a resort outside Kampala in 2010. Above all, the claim that the ICC is a stalking horse for the west ignores the horrific crimes committed in Kenya and that victims and their families have yet to see any measure of justice from Kenyan courts. Far from backing off, the international community needs to stand in solidarity with these victims and press Kenya's new government on its ICC cooperation obligations.

Kenyatta and Ruto are not fugitives, making some "business as usual" with the new government possible. But the ICC finds itself in a challenging situation in which it must depend at the highest levels on the very people it is putting on trial for the cooperation it needs to proceed. This reality means the international community will need to be vigilant in reacting to any signs that this cooperation is on the wane. Kenyatta's reformulation of his pledge on the ICC at his swearing-in should be cause for concern. He is seeking to have the charges against him dropped following the withdrawal of the case against Muthaura, a petition the ICC judges will decide. Kenyatta and Ruto, along with Ruto's co-accused, are entitled to a vigorous defence. That is their right and it should be scrupulously respected. But the Kenyan government should simultaneously ensure that the court can go forward with its independent, judicial process.

With witness protection a key concern – Bensouda has called the scale of witness interference "unprecedented" – the new government should signal that it will do all it can to help ensure the safety of those who would seek to assist the search for justice. Kenyatta missed the opportunity on day one to declare unequivocal commitment to the court. His administration should not miss opportunities to demonstrate this support in the days ahead.