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Kenya Says Yes to Kenyatta, No to International Court
Tuesday, March 12, 2013

Kenya’s newly elected president, Uhuru Kenyatta, told supporters last weekend that the country’s voters had “demonstrated a level of political maturity that surpassed expectations.” Governments around the world echoed the sentiment.

Awkwardly, Kenya has just elected a man who is under indictment at the International Criminal Court, accused of crimes against humanity. Yet Western nations are right to reserve judgment on Kenyatta as his trial plays out. And the ICC itself could learn valuable lessons about unintended consequences from this episode.

Kenyatta and the foreign spokesmen mean two different things by “maturity.” For Kenyatta, it includes the refusal to be cowed by the ICC’s proceedings. In fact, signs are that the charges, which Kenyatta decried as Western meddling in Kenyan affairs, energized his supporters. He won a sliver more than 50 percent of the vote (thus avoiding a runoff) on a turnout of 86 percent, the country’s highest ever.

For the U.S., Europe and others, “maturity” means an election that doesn’t collapse into violence. That’s what happened in 2007, when claims by one defeated candidate, Raila Odinga, of electoral fraud brought opposing camps into the streets; the charges against Kenyatta, a supporter of incumbent President Mwai Kibaki, relate to the ethnic killings of more than 1,100 that followed.

Opposition Challenge

Once more the defeated candidate, Odinga is again challenging the results, this time at Kenya’s Supreme Court, and deploring the performance of the electoral commission whose job was to supervise the vote. He also called for calm: “Any violence now could destroy the country forever,” he said. A peaceful challenge to the election under the terms of the country’s new constitution would indeed be a sign of maturity.

Kenya’s citizens continue to vote along traditional tribal lines. In that respect, the country has far to go before it becomes an ordinary functioning democracy. They also want stability, as do the foreign investors who see the country as one of Africa’s brightest prospects. If strife can be avoided, the International Monetary Fund reckons the economy will grow by 5.6 percent this year and 6.4 percent in 2014, up from 5.1 percent in 2012. The policy platforms of Kenyatta and Odinga weren’t that different. The uncertainty that investors fear arose mainly from the risk of violence.

What about the ICC’s accusations? They may well evaporate. The court dropped charges on March 11 against one of Kenyatta’s co-accused, Francis Muthaura, partly because a prosecution witness recanted. Kenyatta is insisting he’s innocent and has so far complied with the proceedings. His trial is due to start this summer. If it goes ahead and he ceases to cooperate, this could be less of a problem for Kenya than for the ICC and the governments that want to see it succeed.

Despite Kenyatta’s anticolonial election pitch, Kenya is a military and economic ally of the West, particularly in the fight against terrorist groups in Somalia. It’s also being courted by China and other emerging powers. Notwithstanding the hopes of the ICC’s champions (including many European nations), sanctions or snubs in response to Kenyatta’s indictment and possible refusal to cooperate would clash with the West’s immediate interests.

For the time being, Kenya’s Western allies will probably confine themselves to what diplomats call “essential contact,” neither endorsing Kenyatta nor seeking to force him to account. It’s far from elegant, but there’s little choice, and on balance that approach is correct.

Meanwhile, the ICC should learn something from its role in swinging electoral support to Kenyatta, and from the charge critics make that it’s an oppressor’s court. The idea that the ICC is anti-African is by no means confined to Kenya. The court and its supporters ought to think hard about how to reverse that perception. Holding its trials of Africans in Africa rather than the Hague might be a good start.

Those accused of crimes against humanity should be brought to justice, and the ICC is a noble endeavor. But the symbolism of summoning Africans accused of crimes in Africa to Europe so that justice can be dispensed is just too fraught for anybody’s good.


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