Kenya’s president Uhuru Kenyatta had hardly arrived in The Hague on Wedneday before he was flying out again, not a word spoken in the court where he is accused of crimes against humanity.
Nevertheless, the very fact that he was present, two years after being charged with murder, rape and persecution as an alleged “indirect co-perpetrator” of ethnic-based violence after the 2007 Kenyan elections, was a significant step for thousands in the country who still live with the scars of that conflict.
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Kenyatta, the first incumbent head of state to face the International Criminal Court, is accused of orchestrating ethnic violence that killed 1200 people and forced 600,000 to flee their homes.
Prosecutors are struggling to obtain the evidence necessary for a trial, however, and last month the chief prosecutor Fatou Bensouda had to ask for it to be postponed. On Thursday, in the face of a continuing dearth of evidence, the court must decide whether to set a trial date, postpone the trial, or stop proceedings altogether.
Before leaving Kenya, Kenyatta had temporarily handed over the presidency to his deputy, William Ruto, to avoid — technically — being the first sitting president to appear before the court. He arrived in The Hague with his wife and a clutch of fellow politicians, and was greeted by cheering Kenyans outside the court.
He had said the charges, which he described as part of a continuing “century of exploitation and domination,” related to a time before he took power, and so he wanted to appear before the court as an ordinary citizen.
“It is for this reason that I chose not to put the sovereignty of more than 40 million Kenyans on trial since their democratic will should never be subject to another jurisdiction,” he said in a speech on Monday.
Kenyans displaced by the 2007 violence prayed and followed the hearing on television at an internal refugee camp in Naivasha
“Therefore let it not be said that I am attending the status conference as the president of Kenya. … Nothing in my position or my deeds as president warrants my being in court.”
However, Ruto — who also faces ICC charges — only enjoyed a one-day hiatus in power. A red carpet, a brass band, a guard of honor and traditional dancers were on hand on Thursday to welcome the president back.
The joyful atmosphere at the airport named for his father, the independence leader and national hero Jomo Kenyatta, implied he was returning, acquitted and victorious, from a trial. However, this was merely a pre-trial status hearing: if the case goes ahead, Kenyatta may be spending much more than one day in the Dutch court.
Kenyatta’s lawyers asked the ICC judges to drop the proceedings on Wednesday, saying that the prosecution’s case has collapsed.
“The case has failed. It has failed in a way that there’s no prospect to go further,” Kenyatta’s lawyer, Steven Kay, said. “It would be an affront to common sense to say that we are not entitled to an acquittal. … If the prosecutor does not intervene, you must act to terminate.”
The prosecution complains that Kenya is refusing to hand over key documents, which they say contain evidence of Kenyatta’s involvement in post-election violence in 2007 and 2008, when he was supporting the then president Mwai Kibaki.
When his rival Raila Odinga accused Kibaki and his party of fraud, political riots that pitted the Kikuyu tribe against other ethnic groups rocked the country.
At two meetings — one in Nairobi’s State House and one in the Nairobi Club — Kenyatta is accused of ordering the Mungiki sect of his tribe and the largest ethnic group in Kenya, the Kikuyu, to launch revenge attacks on members of the Luo, Luhya and Kalenjin tribes, among others. According to the ICC, the attacks were intended to keep the ruling Party for International Unity in power — and, in exchange for carrying them out, he promised to protect the Mungiki’s interests and put a stop to their repression.
Kenyatta is refusing to hand over his financial records from the time of the crisis. Over the years witnesses have disappeared, withdrawn from proceedings, refusing to testify, or changed their testimony. Although witnesses are supposedly anonymous, their identities are given to the defence lawyers, and one who testified against Ruto last month had her identity revealed by the Kenyan media.
“The Kenyan government is not going to give us what we are asking for and what the chamber has approved of (us) asking for,” senior prosecutor Ben Gumpert told the ICC judges. “The only conclusion to be drawn… is that if the court is satisfied that our arguments are right it should make a finding of non-compliance on the part of the government of Kenya.”
“If the trial chamber terminates this case, others will draw the conclusion that a case at the ICC can be effectively undermined by intimidations and bribery,” Fergal Gaynor, the victims’ lawyer, said.
The country’s attorney general, Githu Muigai, insisted that the government was complying with the prosecution’s request for documents but said that Kenya was grappling with its “huge bureaucracy” to come up with them.
If he had not gone, Kenyatta ran the risk of an Interpol warrant being put out for his arrest, and of economic sanctions being imposed on Kenya.
“We know where we are coming from, we know where we are now, we know where we are going. No-one will tell us where we are going and yes, we will decide for ourselves,” he told supporters in Swahili outside the court on Wednesday.
Kenyatta’s message was made in solidarity with leaders from almost the entire African continent.
African countries have condemned the ICC as racist, as they say it targets only Africans, while the 54-member African Union, with the exception of Botswana, opposes criminal proceedings against sitting presidents.
“African states parties should comply with African Union decisions on the ICC and continue to speak with one voice,” the AU said at a summit in Ethiopia in February.
In its 12 years, the court had made only three judgements, two guilty: Thomas Lubanga and Germain Katanga, both convicted of war crimes in the Democratic Republic of Congo. Thirty others have been indicted by the court: many of them are fugitives, have died, or their cases remain, like Kenyatta’s, in the pre-trial stage.
Follow Ruth MacLean on Twitter: @ruthmaclean
