President at home, on trial abroad: How Kenya's new leader is coping

•A version of this post ran on the blog Africa in Transition. The views expressed are the author's own.

Kenya, the International Criminal Court (ICC), and, by extension, the international community currently face the dilemma of dealing with a president and a deputy president, freely and fairly elected (more or less) that are charged with crimes against humanity associated with 2007 election bloodshed. 

Africa Confidential has an excellent review of the current state of play.

On May 2, Kenya’s permanent representative to the United Nations, Kamau Macharia, sent a thirteen-page letter to the UN Security Council (UNSC) asking it to end the ICC cases against President Uhuru Kenyatta and Deputy President William Ruto. He argued that Mr. Kenyatta and Mr. Ruto were duly and democratically elected and could not perform their duties in the face of “an offshore trial that has no popular resonance and serves no national or international purpose.”

A variation of this argument is echoing among Kenyatta’s supporters – “peace” is more important than “justice,” and the ICC process should somehow go away.

But Ruto promptly disavowed the letter on the basis that the UNSC lacks the legal authority to stop the ICC proceedings. Ruto’s lawyer reaffirmed his client’s cooperation with the ICC. The attorney general of Kenya, Githu Muigal also disavowed the letter saying Kenya is not a party to the cases and has reaffirmed Kenyan cooperation with the ICC.

On May 13, however, the ICC prosecutor, Fatou Bensouda, rejected the Kenyan government’s claim that it is cooperating with the court. Specifically, she said that the government failed to provide certain financial records and has not facilitated interviews that could provide her with information about the role of the police in the aftermath of the 2007 elections. Earlier, she said that the government failed to provide adequate protection for potential witnesses and that bribery and intimidation played a role in the withdrawal of potential witnesses.

The ICC charges against Kenyatta and Ruto were an issue in the 2013 Kenyan elections and popular backlash against the court probably helped them. Many Kenyans seemed to think the charges would be dropped in the aftermath of an election victory, probably at the instigation of the United States and the United Kingdom because of the importance of their ties with Kenya and Nairobi’s crucial role in Somalia.

In fact, UK Prime Minister David Cameron hosted Kenyatta in London at the May 7 Somalia conference. The UK argued Kenyatta’s presence was “essential,” and, in effect, trumped British policy to have only “essential contact” with Kenyatta and Ruto.

However, Africa Confidential credibly speculates that President Obama will skip Kenya during his next Africa trip and suggests, also credibly, that there will be a cooling of relations between Kenya and the UK and the US.

The ICC has agreed to postpone Ruto’s trial until October. Many observers think that the ICC case against him is stronger than that against Kenyatta. If the ICC were to convict one and acquit the other, there could be serious political consequences in Kenya.

Kenyatta is a leader of the Kikuyu, Ruto of the Kalenjin. The two ethnic groups have long been rivals, and fighting among them was an important element in the 2007 violence. Then, Kenyatta and Ruto were on opposite sides. For 2013, they made a political alliance, and there was little fighting between Kikuyu and Kalenjin, a factor in the largely peaceful elections.

A Ruto conviction and a Kenyatta acquittal might put at risk the current truce between the Kalenjin and the Kikuyu.