International justice has a problem in Africa

On Saturday, Uhuru Kenyatta, the president of Kenya, will lead his countrymen in triumphant national celebrations. The cause of jubilation will not be the defeat of malaria or the destruction of the Islamist militant group al-Shabaab, both of which still pose a potent threat.

The reason for this patriotic outpouring will be altogether different: the capitulation of the International Criminal Court.

Last week, after six frustrating years, the court abandoned its efforts to prosecute Kenyans accused of orchestrating deadly violence after disputed elections in December 2007. Although it did not formally acquit the two defendants, one of whom is William Ruto, the sitting deputy president, the ICC decided there was insufficient evidence to proceed.

The court has failed to punish anyone in connection with the violence in which more than 1,200 people were killed and 350,000 driven from their homes. That for many Kenyans this is a reason to celebrate shows the depth of the ICC’s problems in Africa.

“Kenya has given the world a rule book on how to beat the ICC,” says Rashid Abdi, a Nairobi-based analyst at the International Crisis Group. For those indicted for crimes against humanity, there were three steps to neutralise the international court.

Step one was banding together. The two most senior indicted figures were Mr Ruto and President Kenyatta. (Proceedings against the latter were dropped in December 2014.) Now jointly running a coalition government, at the time of the violence they were on opposing sides of a vicious ethnic divide. But in the 2013 poll, by which time both had been indicted by the ICC, they had set their differences aside.

Mr Kenyatta and Mr Ruto won that election partly because they played on the sympathy vote. Both claimed to have been persecuted by the ICC even though it was Kenyans who had asked the court to intervene.

A charitable view of the ICC would be that it prodded two warring factions into burying their differences. A less charitable assessment would conclude almost the opposite — that Mr Kenyatta and Mr Ruto played the ICC for suckers, exploiting perceived victimisation to gain the ultimate prize: power.

Step two was to mount a diplomatic offensive. The Kenyan government was extremely effective in portraying the trial as a racist, neocolonial exercise. The African Union rallied behind Kenya’s cause, lambasting the ICC for “hunting” Africans. No matter that several of the cases have been referred to The Hague by Africans themselves. The truth remains that nine out of 10 ICC cases involved the continent. The court does not have the muscle to go after the Assads of this world, let alone the Blairs or the Bushes.

Then there was nobbling of witnesses. Several of those who testified later recanted. Many, it seems, were intimidated, bribed, spirited away or even killed. One of the ICC judges said the trial had been tainted by “witness interference and political tampering”.

In being so thoroughly outmanoeuvred, the ICC has much to think about. Its case was weak from the start. A lack of independent investigative resources meant it relied on Kenyans to come up with evidence and suggest who to prosecute. The process was politicised. At times it was downright sloppy. One person originally accused of being involved in violence had a perfect alibi. He had been dead for years.

The ICC must also address its image problem in Africa. Not for the first time, Kenya this week threatened to lead a walkout of African nations from the court. The ICC has made a start. In February it authorised an investigation into alleged war crimes in South Ossetia in 2008. Unless more non-African investigations — and prosecutions — follow, the perception of the ICC’s anti-African bias will persist.

Finally, the ICC did a poor job at protecting witnesses. Those who testify must feel safe from retribution, or more cases will crumble.

If the ICC has plenty to consider, Kenyan triumphalism is also misplaced. The fact that its politicians chose to outsource justice to The Hague in the first place shows how lacking are its own institutions. The unravelling of the process means perpetrators have gone free and victims have been denied justice.

If Kenya and other African governments do not like being judged by an international court, there is a remedy. They should do better at calling their own offenders to account. If they cannot, there is likely to be only one outcome: more impunity — and more violence.

david.pilling@ft.com