Can Kenya's president use Westgate tragedy to avoid ICC trial?

Kenya’s President Uhuru Kenyatta has been a steadying force in the midst of Kenya’s worst terror attack in more than a decade. He spoke with President Obama over the phone and yesterday declared the siege of Westgate Mall by Somali militants to be over.

This week also, as the world was transfixed on the chaos in Nairobi, President Kenyatta used the Al Shabab attack moment as a rationale for asking to skip parts of his upcoming trial at the International Criminal Court (ICC), set to open at The Hague on Nov. 12.

Both Mr. Kenyatta and Kenya’s Vice President William Ruto were elected in March despite the ICC indictments for crimes against humanity – charges that both men helped organize political violence in the aftermath of the 2007 national elections that left more than 1,000 persons dead and hundreds of thousands homeless.

Both say they will attend the trials and Mr. Ruto has already flown to The Hague to plead not guilty. But in recent weeks both men have been seeking new ways to avoid the trials or delay them. The court said no to local trials in East Africa, has denied Kenyatta's request to have the trial take place by video, and today said no to a Kenyatta petition to have the trial delayed until this coming January. 

However in the midst of the Westgate Mall crisis the ICC did on Sunday agree to let Ruto fly back to Kenya for a week to deal with official responsibilities. 

After releasing Ruto, Mr. Kenyatta and his lawyers said that if the ICC can release Ruto then the president should be offered a similar accommodation.

Kenyatta's lawyers say the ICC is denying Kenyans an effective government when it insists that the president should be present for his trial. 

“President Kenyatta is satisfied that he will be able to adequately manage his defense by delegating responsibility to his legal team who are in receipt of full instructions,” says Steven Kay, Kenyatta's legal counsel.

Kenyatta’s request comes as the international community is closely watching what has become a test case for the ICC and for international justice writ large.

The two leaders are the highest sitting politicians ever to agree to face trial at the world court, and many in the human rights community see the ICC as an important if imperfect step of progress – even as many Africans say their leaders and officials are being unjustly targeted or singled out.

Yet since Kenyatta has steadily promised he will attend his trial there is no reason he should now try to exempt himself, says Morris Odhiambo, executive director of Nairobi's Centre for Law and Research International.

“[Kenyatta] has assured the ICC that the case will not affect the country and we take him by his word,” says Mr. Odhiambo. “The main issue was whether the two of them [Kenyatta and Ruto] will be away at the same time,and I think that was settled,” he added, speaking of an ICC decision not to hold both trials simultaneously.

For many Kenyans, the Westgate Mall attacks reinforce their view that Kenyatta cannot afford to be away.

“These attacks are an indication that the president has to be here. His presence is needed to assure the citizens,” said the Rev. Wellington Mutiso, a senior Baptist leader.

“The whole process should be handled carefully in the best interest of the country and the international community. The president is a father figure and it’s of critical importance that he spends more time in the country,” said Ndola Indidis, a former spokesman of the Kenyan Judiciary.

The tribunal has been accused of indicting an overwhelming number of Africans and ignoring war crimes and crimes against humanity in other parts of the world. One former US Secretary of State for African Affairs, Jendayi Frazer, said the court was being used by world powers “as a tool for geopolitical influence, not for balancing global justice.”

Kenyatta’s application for an exception comes days after the court heard a petition by five East African nations to allow Kenyan leaders to opt out of parts of their trial. Rwanda, Tanzania, Burundi, Uganda and Eritrea wrote to the court saying its effectiveness and status would be bolstered if it did so.

Sections of Kenyans however said the president and his deputy should attend the sittings so that they can remain in compliance with international obligations they have agreed to, and submit to the court’s ruling.

“It is better they go and clear with ICC. Frequent postponement is taking the country away the focus on important issues,” said Mr. Benjamin Muema, a political party leader.

Kenyan politicians close to Kenyatta had complained that with Ruto in the dock in September and Kenyatta’s trial set to open in November, that there could be times when both men were at The Hague.

The ICC ruled this summer the court would arrange schedules so that the two trials will not take place simultaneously.