Kenyan president’s case a ‘litmus test’ for International Criminal Court

Kenyan President Uhuru Kenyatta appeared before the International Criminal Court in The Hague, Netherlands, on Wednesday in the long-running case alleging that he fomented violence following the country’s disputed 2007 elections.

The prosecution on Wednesday accused the Kenyan government of withholding evidence and hindering the investigation, while the defense said the case should be tossed out. The judges now must decide whether to end the trial or give prosecutors more time to search for the missing evidence.

In the 2007 presidential election, Mwai Kibaki of the Kikuyu ethnic group was declared the victor over opponent Raila Odinga, a Luo. Results from the controversial vote plunged the country into chaos as Luos attacked Kikuyus, which led to reprisal killings. The violence left more than 1,000 people dead and displaced hundreds of thousands.

Kenyatta is accused of funding a local militia to conduct the reprisal attacks, and the prosecution said they can prove it through witnesses and phone and tax records, but that the government won’t turn over the records. Kenyatta has denied all charges, saying they are politically motivated, and the government has said it wants to comply with the court but it doesn’t have the records.

Michael Newton, a law professor at Vanderbilt University, said Wednesday’s courtroom developments are a microcosm of the broader difficulties in the case and in the ICC as a whole.

“There’s a long history of allegations back and forth of witness tampering, and (it shows) the complexities of bringing this type of trial in a post-conflict setting,” he said.

The case against Kenyatta and other Kenyan officials began in 2011. Charges of inciting violence also have been brought against Deputy President William Ruto, whose trial started in September 2013. Last year, the charges against former Cabinet Secretary Francis Kirimi Muthaura were dropped because several witnesses had died and others were too afraid to testify.

At Wednesday’s status hearing, the court was trying to determine whether the Kenyan government is indeed “fully cooperating” as required under the governing treaty of the ICC, said Newton. “This is a litmus test for how the court relates in these complex conflict situations with domestic governments.”

“The ICC is always going to be in a very difficult position,” of having to do its own investigations in sovereign states, said Newton. “The longer it waits from the end of a conflict, the more dependent it is on outside parties to collect evidence.”

But to begin sooner, the court would have to get involved in the middle of an armed conflict, which it isn’t equipped to do, he said.