Uhuru Kenyatta and the inconvenient ICC truth

"Africa is on the rise," proclaimed Uhuru Kenyatta, taking the oath of office on a Bible used by his father Jomo, Kenya's first president after independence from Britain half a century ago.

A man accused of crimes against humanity is now the most powerful person in East Africa. The president will be standing in the dock while also running the region's biggest economy. But so far, it is not Kenyatta on trial in the court of world opinion but the International Criminal Court (ICC), for which this is seen as a defining moment.

First, Yoweri Museveni, who has ruled Uganda for 27 years, highlighted a stain that the ICC seems unable to wash away – the perception that it is an instrument of the West that is inherently biased against Africa. From Joseph Kony up, all suspects indicted by the court to date are Africans, even if investigations are being conducted elsewhere and the current chief prosecutor, Fatou Bensouda, is from Gambia.

Second, the case against Kenyatta and his deputy, William Ruto, which relates to their alleged orchestration of violence after the last election, is thought by many to be unravelling. Last month prosecutors dropped a crimes against humanity case against co-accused politician Francis Muthaura after a key witness admitted lying – the first time in the 10-year-old court's history that they have dropped a case so close to trial.

This is not necessarily owing to ICC incompetence. Bensouda has described the scale of interference with witnesses in the Kenya cases as "unprecedented". Some have allegedly "disappeared" or been offered bribes to withdraw. Victims have repeatedly highlighted their safety concerns in court. One journalist who has followed the case for years told me: "If I was a witness, there is no way I would stick my neck out to testify. My life would not be safe."

Don't expect the West to ask awkward questions about such matters; a collapse of the case against Kenyatta, due to stand trial at The Hague in July, would suit the UK and US just fine. They are preparing for the awkward etiquette of arm's length diplomatic relations with the new man. Tuesday's inauguration may be a template: Britain, America and EU countries sent no one more or less senior than ambassador. The UK's standard position on ICC indictees is to avoid all contact unless "essential".

'Voluntary appearance'
As a signatory of the Rome statute of the ICC, Kenya would be forced to act on any arrest warrant issued by the court should Kenyatta refuse to attend trial. But unlike the Sudanese president, Omar al-Bashir, Kenyatta has promised to fully co-operate. This has earned him brownie points with one of the ICC's most prominent champions, Human Rights Watch. "Given their voluntary appearance before the ICC, Human Rights Watch does not oppose diplomatic contacts with Kenyatta and Ruto," the watchdog says.

Pointing to the Sudan example, analysts believe that the west can quite comfortably continue to interact with various government agencies while keeping contact with Kenyatta and Ruto to a minimum.

And "business as usual" seems the most likely outcome because of sheer pragmatism. Kenya is too big to ignore. British companies are heavily invested in its economy. Kenyan troops are helping battle Islamist militants inside Somalia, and Kenya hosts a US military base near the Somali border.

Kenyatta, for all his pro-east, anti-west rhetoric, is a graduate from Amherst College in the US, uses a British lawyer for his trial at the ICC and has Britons among his advisers. The EU is a big donor and significant importer of Kenyan produce, while the US provides about $900-million in aid a year. Any hint of sanctions or economic disruption could torpedo his ambitious promises to create jobs and invest in technology.

All of which means that it is of mutual interest for both sides not to rock the boat, and hope that the ICC case quietly fades away. Which will be of no consolation to the victims of the election carnage that left more than 1 100 people dead. They have already been waiting five years for justice.

"We don't want instability and we don't want impunity," said Mwalimu Mati, a civil society activist and anti-corruption campaigner in Nairobi. "I think an accommodation will be reached over time. If Kenyatta's challenges to the ICC case succeed, you will probably see the west attitudes mellow. Kenya is important and has proclaimed itself important. But in all of this we've forgotten the victims and human injustice." – © Guardian News and Media 2013

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