Kenya's President Uhuru Kenyatta.
More than a thousand innocent Kenyans were killed after the country’s disputed presidential election in 2007, in the worst outbreak of ethnic-political violence since independence. Hundreds were burnt alive, women were raped, property was destroyed and more than 600 000 people turned into homeless refugees.
It was to protect such victims and punish their tormentors that the International Criminal Court (ICC) was created. Kenyans hoped the court would help to end a culture of impunity, but now, as this case reaches the court, the victims seem forgotten as the case against the funders and instigators of the violence crumbles. Already the court has withdrawn charges against three of the six highly placed suspects.
A confident Kenyan President Uhuru Kenyatta, one of the accused, appeared at the ICC this week, as his African Union (AU) peers called for charges against him to be dropped. ICC prosecutor Fatou Bensouda asked for an indefinite adjournment until she receives Kenyatta’s personal bank, tax and phone records, which she believes will show he bankrolled attacks – documents he will not surrender without a fight.
The ICC made the mistake of indicting Kenyatta and his co-accused before putting together a strong case. Its witnesses have proved unreliable, many of them recanting their statements amid claims of bribery and intimidation. Also, Kenyatta’s government has been asked to collect evidence, which amounts to asking the president to incriminate himself.
The court’s reputation had earlier suffered a blow when it attempted to put Sudanese President Omar al-Bashir on trial, arousing suspicions that it is weak on strong governments and strong on weak ones.
The AU, which has resolved that no sitting African leader should be prosecuted, is able to project the court as a puppet of the West. Its essentially self-serving argument has been strengthened by the fact that all 30 arrest warrants the court has issued have been for African leaders.
The court is failing to confront a tidal wave of crimes against humanity by governments across the world. It has been asked to look into cases of alleged crimes in 139 countries, but is investigating fewer than a dozen.
The world needs the ICC and, until it can create a credible continental tribunal to hold leaders accountable, Africa needs it too.
But the court should be given stronger investigative capacity. If it fails to hold heads of state such as Kenyatta and al-Bashir to account, it will be seen as toothless. And, to bolster its credibility, it must be more even-handed. It can initiate its own investigations. Why have Israel’s actions in the occupied territories, and the United States’s endless foreign wars, not come under its forensic microscope?