Three scenarios for Kenya’s ICC trials

The three Kenyacases before the International Criminal Court (ICC) could possibly produce three different outcomes: The three suspects, President Uhuru Kenyatta, Deputy President William Ruto and radio journalist Joshua Sang, could all be found guilty; they could all be found innocent; or, alternatively, some suspects could be found guilty and some innocent. All three outcomes have consequences both domestically and in the way the court will be perceived in Kenya and across Africa.

Over 1,200 people were killed and some 600,000 displaced in the 2007-2008 electoral violence  that featured their respective communities as the principal protagonists. In that election, Kenyatta and Ruto supported opposite political parties. 

Guilty verdict

One possible outcome of the trial is guilty verdicts. For the ICC, this is an ideal ending to what has been a bruising battle inside and outside the court. Since its establishment in 2002, the court has failed to prosecute high profile suspects.

To date, its only successful high profile prosecution is the Congolese rebel leader, Thomas Lubanga, who was found guilty on March 14, 2012. Lubanga was accused of war crimes, for conscripting under-age children and using them in combat. However, the conviction of all Kenyan suspects is highly unlikely. 

It is little wonder that out of the six Kenyan cases forwarded to the International Criminal Court – Uhuru Kenyatta, William Ruto, Henry Kosgey, Joshua Sang, Francis Muthaura, Mohammed Hussein Ali – only three have led to trials. Charges against Ali and Kosgey were dropped in January 2012, and against Francis Muthaura in March 2013. The cases collapsed due to insufficient evidence. And Kenyatta’s case has been delayed multiple times because prosecution sought more time to prepare.

Secondly, poor witness handling has hampered the prosecution’s case. Since the start of the trial, several key prosecution witnesses have withdrawn. The prosecutor claimed the witnesses were coerced into withdrawing, while the defence argues the witnesses were coached from the start. Regardless of witness coaching or intimidation, the fact that witnesses have failed to “cooperate” with the court since the trial started doesn’t reflect well on the court.

When asked about witness protection in a recent interview, former Chief Prosecutor Moreno Ocampo said, “I don’t think you could do anything to avoid the problem we have now because we protected our witnesses. We transferred them from Kenya to different places. But in some cases, we know families in Kenya were affected or threatened.”

For Kenyatta and Ruto, guilty verdicts could see an end to their political careers depending on the length of sentences. To prevent this, they have retained some of the best lawyers in business. Kenyatta’s defence team includes British lawyers Steven Kay and Gillian Kay Higgins. Higgins defended the late Serbia president Slobodan Milosevic. Ruto’s lead lawyer is Karim Khan, who represented another Francis Muthaura, whose case was dropped in March 2013.

A guilty verdict against a sitting president and his deputy would send a powerful signal regarding accountability: that justice shall be done regardless of one’s station in life.

Both Kenyatta and Ruto’s teams of international lawyers will go to great lengths to avoid such a verdict. If previous exchanges between the prosecution and Kenyatta’s defence team are any indication, the prosecution should be prepared for a bruising fight. In the opening remarks at the beginning of the trial, Khan called the case against Ruto “a very clear and glaring conspiracy of lies,” accusing the prosecution of failure to conduct proper investigation and of being “indifferent to truth.”

Kenyatta is the second sitting head of state to be prosecuted by the ICC. Sudan’s Omar Hassan al-Bashir became the first in 2009 when he was indicted for crimes against humanity committed in Sudan’s Darfur region.  For thousands of Kenyan victims of electoral violence, some of whom are still living in internally displaced camps, the conviction would bring about much-anticipated closure. It would also be a major victory for the global justice regime.

In some of the cases, it was the African countries who referred the cases to the ICC eg the Uganda case. In the Kenyan case, they had a chance to establish a local court that would have tried the perpetrators. Failure to do that forced Annan to handover the evidence to the ICC prosecutor who initiated the case on his violation.]

A not guilty verdict

A not guilty verdict in all of the Kenyan ICC cases could only be a damaging outcome for the ICC. Across Africa, especially in countries where individuals face potential investigation for similar crimes, the Kenyan case will be seen as a de facto African referendum on the court’s standing. 

Such an outcome would also be a major blow to the fight against impunity and accountability. Although the proper due process was followed, acquittals in the cases would be seen by victims of the electoral violence as justice denied. Many of the victims rely on the ICC as the court of last resort; if the ICC can’t deliver justice, their pain and suffering will have only served to reinforce political impunity.

Over the last three years, however, support of the ICC for their cause has diminished as many Kenyans began to view the court as a “political” tool.

In an opinion poll conducted in July 2012, three months after Kenyatta’s election, public support for the court dropped to 39 percent – a 16-percent drop from April 2012. In 2010, the support for the court stood at 68 percent

For Kenyatta, Ruto, and Sang a not guilty verdict would vindicate their claims that the court was engaged in a political witch-hunt rather than clean judicial accountability. According to their critique, the not guilty verdict would translate into a triumph against anti-imperialism.

A mixed verdict

The alternative outcome would involve the scenario where some suspects are found guilty while others are acquitted. This would give the court some sense of moral victory. The victims may also take solace in partial justice. But perceptions get complicated depending on exactly who of the three is found innocent or guilty.

In the aftermath of their electoral victory, Ruto’s allies raised alarms over disproportionate allocations of key government positions. Prior to the election, the alliance was premised on the equal sharing official appointments – a 50-50 division of spoils between the two ethnic groups. Kenyatta is a Kikuyu, while Ruto is from the Kalenjin community.

If Ruto is found guilty, it could potentially undermine the tenuous “peace agreement” between the Kikuyus and Kalenjins in the Rift Valley – the epicenter of Kenya’s cyclic electoral violence.

Politically, the failure of the Ruto-Kenyatta axis will lead to significant shifts in the national political arena. A Kalenjin leader who succeeds in capturing Ruto’s massive voting block could form a coalition with another party in the 2017 election. This could render Kenyatta a one-term president. it is not clear how Kenyatta will respond to his deputy’s problems; Ruto played a significant role in getting Kenyatta elected and it would be difficult for the incumbent to win a second term without him.

Their political alliance in 2012 papered over the lack of a deeper and more sustainable political reconciliation between the two communities. Deep-seated suspicion between the communities remains.

The opposite outcome – where Kenyatta is convicted and Ruto is acquitted – would bring to an end the coalition between their communities. Political alliances are largely ethnic multi-purpose vehicles of ascending to state power. Kenyatta’s conviction would be interpreted as a victory, at least for some of the victims, and a success for the ICC and the larger campaign against impunity. Kenyatta would become the first head of state to be convicted by the ICC.

But such an outcome would undoubtedly enrage African leaders who have persistently argued the court is selective in its pursuit of justice. This could see a total breakdown in the relations between African countries and the court. His conviction would also feed into an already cultivated anti-imperialism discourse.

Conviction of Sang, a Kalenjin like Ruto, will have limited impact because his position in the larger Kalenjin political constituency is minor. His conviction would strengthen the perception that the court is only going after the lowest hanging fruit rather than the big fish.

Whether the outcome is a guilty verdict or an acquittal in Kenya’s cases, relations between the ICC and Africa will not be the same again. An acquittal would entrench the court’s failure to successfully try a high profile case, while a guilty verdict would be a self-fulfilling prophecy.

Abdullahi Boru Halakhe is a senior security policy analyst for the Horn of Africa.