A prosecution at the International Criminal Court in the Hague of Kenyan political leaders allegedly responsible for the election violence that cost more than 1,000 lives and left 700,000 people displaced in the last presidential election was intended to stop it happening again. Instead it has become the flashpoint that may set off new violence after Monday’s elections.
Two of the leaders indicted by the ICC Chief Prosecutor, Uhuru Kenyatta and William Ruto, led rival Kikuyu and Kalenjin ethnic groups whose followers’ subsequent clashes caused most of the deaths in 2007 and 2008. Initially as a defensive tactic, these political rivals combined. Now their alliance is snapping at the heels of long-time front runner Raila Odinga, the outgoing prime minister widely thought to have been cheated of the presidency last time round. A campaign based on a powerful emotional appeal by Mr Kenyatta and Mr Ruto against western interference and the much pilloried Dutch-based court has turned an election that should have been about the extraordinary economic and social challenges Kenya faces into a referendum on the west and its purported preferred candidate, Mr Odinga, for pursuing justice against these two relaunched home town heroes.
The outcome remains in doubt and is likely to go to a second round, not least because those long excluded by Kikuyu-led governments are not swayed by this message. But what this reframing of the election has already done is reinforced tribal voting blocs that an increasingly urbanised and middle class Kenya might have been expected to be leaving behind, and put huge strain on a revamped justice and electoral system. Kenya’s chief justice has publicly complained of threats against himself and colleagues by Kikuyu-linked groups. So confidence is shrinking in the ability of the authorities to either count the vote honestly or keep the peace.
Resisting a return to violence and electoral manipulation is a surging Kenyan civil society that is employing mobile phone apps (Kenya is the pioneer of mobile banking) and 30,000 poll-watchers to monitor the results. Indeed the emergence of a strong national human rights movement is one of the happier consequences of the last election. A further reason for some optimism is that the two of the alleged principal culprits of the violence last time are partners in this election. This will hopefully mean violence will not flare up between their followers.
Whether or not Kenya struggles through Monday and a likely second round in April, real damage has been done to the ICC and its mission of securing accountability for mass crimes against humanity. The court was intended to end the impunity that has allowed so much bad government in so many places over the centuries. Thirty-three African states are among the 121 countries that created the court. At the time it was an acknowledgement that not all African states will at all times have robust and independent enough courts to hold former leaders to account. So when domestic justice failed, the default to an international court of last resort would be, it was argued, an important deterrent to those who might think they could still get away with crimes against their citizens.
Now the ICC finds itself pitted against much of Africa’s political leadership. If the two Kenyan indictees are elected, there is no appetite on the continent for boycotting them or handing them over. Instead a perceived sense of double standards has developed with a belief that the ICC only goes after Africans and has become a tool of western policy. Although unfair, it has not been helped by clumsy ICC action in cases such as Libya.
The ICC now has an African chief prosecutor and the quality of indictments appears to be stronger. The accused Kenyans have so far co-operated but have made clear that if the case is not dismissed they want it repatriated to a more amenable Kenyan court. And in the meantime there are allegations of concerted efforts to intimidate and bribe witnesses.
A further casualty may be Kenya’s relations with the west. Business as well as diplomatic relations will suffer if an ICC indictee is running the country. Both the US and the UK have made that clear. But western energy companies fear they may lose contracts to Asia if a new government feels victimised. Inevitably, it will throw a wider shadow over investment confidence at just the time when the region has been enjoying historically high growth rates. Yet Kenyans understandably don’t like to hear this and diplomats only whisper it because it does smack of interference.
In the meantime, in a season of consequential elections around the world, one of the most significant for its implications at home and abroad has until now been one of the least noticed. Let’s hope Monday’s voting does not change that.
Mark Malloch-Brown was UK Minister for Africa at the time of the last Kenyan elections.