The ICC and Kenya: 5 questions

It’s clear that the four-day Westgate terror crisis has left Kenya’s leadership with huge security issues to contend with, but there’s another looming problem: the country’s two highest ranking politicians have dates somewhere else. Specifically, The Hague.

As Kenya enters crisis-response mode, the fact that its prime minister and his deputy are both indicted by the International Criminal Court (ICC) for crimes against humanity looks more problematic than ever. The country can ill afford an absent leadership. Here are the five key questions.

1) Who’s due in The Hague?

President Uhuru Kenyatta and his deputy William Ruto are among a group of six men charged by the ICC with fuelling ethnic violence during the aftermath of 2007 presidential elections, at a cost of more than 1,000 lives.

Ruto, who flew to The Hague earlier this month, is the first high-ranking politician to be trialled by the ICC while in office. Kenyatta’s trial opens in November. Both men deny charges.

2) So what happens next?

On Monday the ICC showed how complicated it is to trial an incumbent leader when it took the unprecedented step of excusing Ruto for a one week period. Hearings are adjourned as he returns home to deal with the attack. Then the trial is due to recommence in The Hague on September 30.

The obvious problem is that long-standing Kenyan security issues will take longer than seven days to clean up. Before Ruto’s case opened, judges granted him the right to be absent from certain hearings so that he could attend to his political duties. But in August prosecutors appealed that decision and, as things stand, he is required to be continually present at the trial.

As he left The Hague, the deputy president pointed out “the challenges Kenya is going through… and the complications that are brought by what is going on here”. Kenyatta’s trial is likely to run into similar difficulties.

Does the west care about the ICC?

Involving both al-Qaeda-linked insurgents and handfuls of western lives, there’s a huge international dimension to the Westgate crisis which may serve to reduce some of the pressure that has fallen on Kenya’s leaders since the ICC brought charges against them last year.

Kenya is a crucial strategic partner of the UK and US in the battle terrorism in its region, and leaders will be looking to work with, rather than against, its government. “The US and UK will focus on reaffirming the security relationship and likely increasingly ignore ICC-related issues,” explained Clare Allenson, Africa analyst at Eurasia Group.

What if Kenya quit?

Both Kenyatta and Ruto have promised to co-operate with the ICC, but relationships with the court has been growing increasingly fractious and this month MPs approved a motion to withdraw Kenya’s ICC membership – something that no country has done before.

That wouldn’t affect the leaders’ cases. Once passed by parliament and filed to the UN, the request to exit will take a year to implement and no ongoing trials would be altered, ICC spokesperson Fadi El Abdallah said. But for Kenya this is a show of defiance. Many are quick to point out that every one of the 30 individuals the ICC has indicted is African, and the cases against Ruto and Kenyatta may have actually played in their favour during elections earlier this year.

Other African countries are rallying behind their neighbour. The African Union has called a meeting next month to discuss a mass withdrawal from the court – to which the majority of its 54 members are signed up.

“We are seriously concerned that the proceedings of the court on the Kenyan defendants are beginning to adversely affect the ability of the Kenyan leaders in discharging their constitutional responsibilities,” AU leaders said in a letter dated September 10. They request that the Kenyan trials be sent back home.

So what does the ICC say?

The ICC’s not quiet on this matter either. “The threat of ICC prosecutions was a significant factor contributing to the peaceful elections of 2013,” Mr El Abdallah warned. “If Kenya withdraws from the Rome Statute, such deterrence will no longer be possible.”

El Abdallah hopes it will reconsider. “Kenya has been a leader, establishing modern constitution which adopted international treaties and international criminal law and the absence of immunity for the head of state,” he said. “Staying with the Rome Statute community will be building on these achievements and not acting against them”

As Kenya picks up the pieces of a horrific attack in the next days and weeks, there’s little doubt that Ruto will be back in the Netherlands to stand trial. But the relationship between the ICC and Africa is at a critical juncture.

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