ICC under scrutiny as Kenya’s deputy president faces trial

Kenya’s deputy president is due in the dock at The Hague on Tuesday in a trial that could unsettle the International Criminal Court as much as the east African nation whose leaders are accused of crimes against humanity.

William Ruto is indicted for allegedly planning and supervising politically motivated ethnic violence that five years ago drove Kenya close to civil war following an election plagued by allegations of mass rigging. More than 1,100 people were killed and 660,000 displaced. President Uhuru Kenyatta, also indicted for crimes against humanity over the violence, is due to stand trial on November 12.

Kenya is so far co-operating with the court – unlike Sudan, whose president Omar al-Bashir is indicted for war crimes and continues to evade arrest – but the ICC has lost popularity over recent months in Kenya and throughout the continent.

“This is a show trial for the ICC – the ICC has as much to lose as Kenyans do if the cases collapse,” said a senior western official.

The court is already under fire for having only tried African cases and for obtaining a single conviction over its 11 year existence. The African Union this year accused it of “race hunting” even though the top prosecutor is from Africa and several African states have asked for the court’s help.

Human rights activists say only six cases have been prosecuted in Kenya for the 2008 violence, none of which involves the organisers. Of the six senior Kenyan figures originally charged by the ICC, only three are due to reach trial and there are fears that the cases could collapse amid allegations of witness intimidation.

The ICC’s chief prosecutor, Fatou Bensouda, said on Monday that unidentified forces had attempted to intimidate witnesses in the trial. One key witness dropped out in February, leading the court to drop charges against a co-defendant of Mr Ruto.

Ms Bensouda said the intimidation efforts were “ongoing and organised” but that those responsible were “going to great lengths to conceal their identity.”

Mr Ruto’s defence counsel, Karim Khan, called the accusations of witness intimidation a “smokescreen” to cover up the weakness of the prosecution’s case.

Mr Kenyatta’s and Mr Ruto’s supporters fought each other during the 2008 post-election violence but the pair came together to contest the 2013 election, united by the international accusations against them. They turned their election campaign into a referendum on the ICC, bringing together their historically rival ethnic groups by portraying themselves as defenders of their communities and victims of a western agenda against Africa.

“In a clever twist [the ICC process] stopped being about the victims and the crisis – [Mr Kenyatta and Mr Ruto] have done a fantastic job politicising the cases and making themselves the victims instead,” said Maina Kiai, a human rights defender. “We have forgotten why we’re doing all this.”

Ahead of Mr Ruto’s appearance on Tuesday his supporters are once again whipping up domestic support. Kenyan parliamentarians last week voted for the second time to pull out of the ICC, a move that has no legal impact but sets the scene for a populist reaction against the court and the west.

“The ICC is a brilliant stage – they will absolutely come out as top dogs in the court of public opinion,” says a senior government supporter who asked not to be named because he is not authorised to speak to the media.

The Kenyan state will not, however, lodge notice to withdraw from the Treaty of Rome, a move that would take a year to effect.

“Parliament is perfectly entitled to express its views and its position . . .[but] the official position is that we continue to co-operate with the court,” said a person familiar with the government’s legal case.

Several senior diplomats have also stressed to Kenya that the penalty for non-cooperation would likely be an escalating series of sanctions against the state and diplomatic isolation by the west.

The ICC proceedings could also reignite Kenya’s fragile ethnic cauldron. Mr Ruto’s continued support is seen as critical to keeping his Kalenjin community, which has historic enmity with Mr Kenyatta’s Kikuyu community, allied with the president.

Mr Kenyatta’s alliance of convenience with Mr Ruto may come under strain if the case against his deputy proves strong. Mr Ruto is due to sit in court for four weeks before a recess permits him to return home, at which point analysts say he may reassess his chances and decide whether to go back to trial.

“If it begins to look like there’s a possibility of a Ruto conviction we are not sure they will want to co-operate with the ICC any more and then we will have a real headache,” said a senior international official based in Kenya.

Additional reporting by Matt Steinglass in The Hague