Kenyan official seeks ally in UN to drop criminal charges against new president

Kenya's UN ambassador says the crimes against humanity indictments of the country's president and his deputy are flawed. Can his move influence the International Criminal Court?

Kenya’s ambassador to the United Nations has launched a strongly worded attack on the International Criminal Court, urging the Security Council to halt trials against his country’s president and his deputy. 

President Uhuru Kenyatta and Deputy President William Ruto are separately accused of crimes against humanity linked to violence following Kenya’s 2007 polls, including complicity in murder, rape, and forcing people from their homes. Both deny all the charges.

Now the ambassador, Macharia Kamau, has singled out the United States, China, Russia, and India as “friendly allies” who should “use their influence” to ensure the 15-member UN Security Council “take[s] the necessary steps” to scrap the cases against the two men.  

It is unclear exactly what action he hopes the four countries will take, since the UN cannot halt an ICC case once it has begun, but are all opposed to the ICC or have failed to ratify its founding treaty.

The call to drop the charges against Mr. Kenyatta and Mr. Ruto came in a 13-page briefing paper Mr. Kamau asked to be circulated to Security Council members. 

The Monitor has seen a copy of the document, dated May 2 and stamped "Confidential." 

In it, Kamau writes that the trials should be stopped because they are flawed, threaten regional security, and violate Kenyans’ wishes. 

Mr. Kenyatta and Mr. Ruto are separately accused of crimes against humanity linked to violence following Kenya’s 2007 polls, including complicity in murder, rape, and forcing people from their homes. Both deny all the charges.

Despite the allegations, the pair won Kenya’s most recent general election, on March 4. 

“Kenyans in their sovereign wisdom elected to power two of the accused as president and deputy president … in effect sending a clear and unequivocal message that the two persons are … innocent,” Kamau’s briefing says. 

Conflict if trials aren't stopped?

Both Kenyatta and Ruto have promised to cooperate with the court, but this will mean that both will be away from Kenya for extended periods. The briefing paper raised the prospect of fresh conflict if the trials were not stopped. 

“It has taken great resolve and discipline on the part of the Kenyan people not to be provoked into turmoil and violence by these protracted and unpopular cases,” it said. 

“[Kenyatta and Ruto’s] absence from the country may undermine the prevailing peace and any resultant insecurity may spill over into the neighboring countries,” the paper continued. 

It also accused the Office of the Prosecutor at the ICC of “coercing” witnesses and of “constantly shifting the goalposts” as it gathered evidence and during pre-trial hearings. 

Its continued action against Kenya’s president and his deputy was an affront to the country’s sovereignty, the document said. 

Fatou Bensouda, the ICC prosecutor, called Kamau’s briefing “a backdoor attempt to politicize the judicial processes.”

"The ICC has always and will always continue to respect the sovereign equality of all states,” Ms. Bensouda told the UN Security Council on May 8. 

“The ICC however will not shy away from investigating individuals for any alleged crimes irrespective of their status," she told council members during hearings in New York. 

Limits of Security Council power

The Security Council in fact has no power to cancel a trial at the ICC once it has started, despite Kenya’s entreaties. It can only defer a case for a year, and it has given no indication that it intends to do so. 

“This is essentially moot, it’s just political grandstanding,” one Western diplomat in Nairobi, Kenya’s capital, tells the Monitor, refusing to be named because he was not authorized to talk to the press on this topic.

The briefing at first appeared to be an official but private presentation of Kenya’s government position, channeled through the president’s representative to the United Nations. 

But Ruto distanced himself from it Friday, and Kenyatta has so far failed to back up his chief diplomat at the world body. 

"My client has every confidence with the judges at the ICC and he has cooperated since he was summoned up to this moment and he will continue to cooperate,” Kharim Khan, Ruto’s attorney, said in a statement. “He also wants to clear his name and we have told the court that there were insufficient and inadequate investigations. We have every confidence that the judges will independently and impartially make the right judgment.” 

In claiming that the pair’s election victory meant that Kenyans had declared them innocent, Kamau was ignoring the almost half of voters who did not choose the two men, says Mwalimu Mati, head of Mars Group Kenya, a governance watchdog. 

Kenyatta won the presidency with 50.07 percent of the vote.  

“This document appears to suggest that the election was a referendum on the ICC process, and that Kenyans want it stopped,” Mr. Mati says.

“That’s over-reaching. Half of voters did not vote for them, and even among those who did, there will be many who want the trials to go ahead and for Kenyatta and Ruto to clear their names there.”  

Kenyatta’s trial is due to start on July 9. The date for Ruto’s first hearings will be fixed later this month.