The two leading Kenyans facing prosecution at the International Criminal Court (ICC) at The Hague were once mortal enemies whose followers killed each other in the wake of a disputed election in 2007. Yet they have since been locked in a cosy embrace, both denying responsibility for the mayhem that, according to an official Kenyan commission of inquiry, left at least 1,100 people dead.
It now looks ever more likely that the charges—at any rate those against the grander of the two men—will be indefinitely shelved, if not dropped. If so, the African Union’s campaign to guarantee immunity from prosecution in the court for the continent’s leaders would gain ground. And the credibility of the ICC, whose premise is that no one, however exalted his office, should be allowed to commit crimes against humanity with impunity, would take a knock.
The grander of the men is Uhuru Kenyatta, who has been president of Kenya since his election in a later (and less violent) vote in 2013. The other is William Ruto, Kenya’s vice-president. Regarding Mr Kenyatta, the ICC’s chief prosecutor, Fatou Bensouda, said on September 5th that “as matters currently stand” she would “not be in a position to proceed to trial on October 7th”, as scheduled. But Ms Bensouda, a Gambian, refused to withdraw the charges, blaming Kenya’s government for its “continuing failure to co-operate fully with the court’s requests for assistance in this case” and in particular for failing to provide banking and telephone records. Still, Mr Kenyatta must be happy. It now seems possible that the ICC will tell the prosecution to drop the charges altogether.
The two cases go back to the election in 2007 that pitted a coalition led by the ageing Mwai Kibaki, the then president, supported by Mr Kenyatta, against the opposition, led by Raila Odinga and backed by Mr Ruto. The victory of Mr Kibaki’s lot was widely deemed fraudulent, provoking angry members of Mr Ruto’s Kalenjin group to kill members of the Kikuyu tribe, to which Messrs Kibaki and Kenyatta belong. In return, Kikuyu gangs then wreaked revenge against their assorted rivals.
The violence was fiercest in the Rift Valley province, whose mixed population is around 40% Kalenjin and 25% Kikuyu. In one incident in the town of Eldoret, a Ruto stronghold, scores of Kikuyus, including women and children, were burned to death in a church by a Kalenjin mob.
Bands of Kikuyus, some drawn from fearsome criminal gangs known as the Mungiki, were then bused into various Rift Valley towns to retaliate against presumed supporters of the opposition, based on their tribal affiliation. Most of their victims were Mr Odinga’s Luos.
A Kenyan inquiry led by a judge, Philip Waki, listed many atrocities. The names of a score of suspects thought to have been guilty of orchestrating or perpetrating these crimes were given by Mr Waki to Kofi Annan, the Ghanaian former head of the UN, who had been called in to mediate in the election’s aftermath and who eventually arranged for a unity government to take office. Mr Kibaki stayed as president and Mr Odinga became prime minister. It was the inability of Kenya’s courts to try these suspects that obliged Mr Annan, with the agreement of Messrs Kibaki and Odinga and the approval of a majority of Kenyans in parliament and at large, to pass their names to the ICC, which then singled out six suspects (three on each side, in two separate cases) for indictment in 2011.
Mr Kenyatta has since found himself the sole defendant in his case, after the charges against his two fellow-accused were dropped. The ICC’s case against Mr Kenyatta has turned on two meetings where the prosecution alleges that he helped organise and pay for the Mungiki to go to Naivasha and Nakuru, two towns in the Rift Valley, to commit their crimes. Mr Kenyatta denies all the charges. Many of the witnesses in his case, thought originally to number between 50 and 60, have withdrawn. Mr Ruto remains on trial in a separate but similar case.
Since their indictment, the two main accused have agreed on paper to co-operate with the court. Yet they have heaped abuse on it, calling it, in Mr Kenyatta’s words, “a toy of declining imperialist powers”. Though most members of the African Union (AU) signed the treaty that set up the court in 2002, the body has since turned against it, denouncing it as biased against Africans, who have so far made up all the people it has indicted, including the only two people to have been convicted by the court. The AU is instead promoting an alternative African court, which has conveniently adopted a protocol granting immunity from prosecution to sitting heads of state and “senior government officials”.
Meanwhile Mr Kenyatta, whose country is a regional hub of capitalism and a key ally of the West against terrorism, hopes his frosty relations, especially with the United States and Britain, will thaw. He has sounded unusually hostile since his indictment, angrily declaring China to be his real friend. But he met Barack Obama last month in Washington and may soon be re-embraced within the Western fold—just as the ICC’s clout may diminish.
* Originally published on The Economist on Sept. 13, 2014