Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues

Is the Kenyatta Case Another Example of the ICC’s “African Problem”?

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Maya Zegarra

On October 9, 2014, Kenyan President Uhuru Kenyatta voluntarily presented himself before the International Criminal Court (ICC), thus becoming the first sitting head of state to appear before the ICC. However, he actually temporarily stepped down as President to attend the ICC hearing. President Kenyatta faces charges of crimes against humanity (pursuant to article 25(3)(a) of the Rome Statute[1]) related to the 2007-2008 post-election violence in Kenya.[2] During this time, more than 1,000 people were killed across the country and more than 600,000 were forced from their homes.[3] President Kenyatta said he was appearing before the ICC as a private citizen; however, “his arrival was very presidential, down to the detail of bodyguards who helped him through the crowd of supporters and journalists.”[4] Kenyatta’s case reinforces the criticism by many scholars that the ICC has “an African problem”. [5] This blog post will discuss whether the ICC indeed has an “African Problem”[6] through an examination of the Kenyatta case, including the circumstances that led to President Kenyatta being summoned by the ICC, the allegations against him, and, finally, the reasons why this is an important but extremely difficult case for the ICC.

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On March 31, 2010, the Pre-Trial Chamber of the ICC granted the Office of the Prosecutor’s (OTP) request to commence an investigation on the situation in the Republic of Kenya for crimes against humanity. On March 8, 2011, the ICC issued a summons to appear to President Kenyatta, alleging he was criminally responsible for crimes against humanity, including murder, deportation or forcible transfer, rape, persecution, and other inhumane acts.[7]

The Chief Prosecutor, Fatou Bensouda, has accused the Kenyan Government of not cooperating with the investigations. On December 20, 2013, Bensouda said that withdrawal of two crucial witnesses left her without enough evidence to proceed against President Kenyatta[8]. Throughout the investigations, at least seven witnesses have withdrawn their assertions, allegedly due to bribes and intimidation. Prosecutors have also complained that requests for evidence have been turned down by the Kenyan Government; some of the evidence requested by the Prosecutor includes official records, telephone intercepts and financial statements, including Kenyatta’s phone records, bank statements and tax returns.[9]

As a State Party to the Rome Statute, Kenya has the obligation to cooperate with the ICC. However, based on the Prosecutor’s allegations and investigations, this does not seem to be happening. In fact, Kenyatta is determined to get the case dropped and has mobilized other African leaders to support him in his campaign against the ICC. He accused the ICC as being a “colonial power seeking to subvert Kenya’s national sovereignty.”[10]

Sudan has also accused the ICC of using “neo-colonialist policy by the West against free independent countries,”[11] after the issuance of an arrest warrant against Sudanese President Omar Al Bashir for crimes against humanity, war crimes and for genocide. Other African countries also believe that arrest warrants like this undermine African solidarity and threaten efforts to achieve peace, and that they are biased against Africa. At the same time, the African Union (AU) requested the ICC to defer the process against Bashir as it could undermine peace efforts, and most African States supported the AU’s request to withdraw the arrest warrant.

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These accusations seem to be justified because Sudan is not a party to the Rome Statute, which means that it has not subjected itself to the ICC. So, at first glance, it may seem that the ICC is trying to impose its jurisdiction unjustifiably over a Non-State Party. However, a closer look at the Rome Statute shows that the ICC can exercise jurisdiction over non-states parties’ nationals in three situations: 1) United Nations Security Council Referral, 2) when the alleged crimes happened on state-party territory, and 3) when the alleged crimes happened on the territory of non-state parties that give ad hoc consent to the ICC.[12] The majority of the ICC cases were self-referrals or were referred by the UN Security Council; Bashir was, in fact, referred to the ICC from the UN Security Council.

In the Kenyatta case, the ICC faces a different, but equally politically difficult situation, because Kenya is a State Party to the Rome Statute. Thus, the ICC has jurisdiction if Kenya is “unable or unwilling to prosecute”[13]. This is also the first time the Office of the Prosecutor (OTP) has used its “proprio motu” power, which allows the OTP to conduct investigations on its own[14]. Additionally, the lack of substantial evidence against President Kenyatta signifies a major problem for the Prosecutor, who is being accused by the Kenyan Government and other African countries of presenting a baseless claim.

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The Chief Prosecutor is well aware of this problematic situation and stated that the ICC has only two viable options: (1) require the prosecution to withdraw the case or (2) declare an indefinite adjournment on the condition that the Kenyan Government complies with its duties[15].   However, neither one of these options are ideal. On the one hand, requiring the prosecution to withdraw would create concerns over the Prosecutor’s role and of misusing its “propio motu” power. This would also raise concerns over the legitimacy of the ICC. On the other hand, suspending the case for an indefinite time would increase concerns that the defendant’s due process rights are being violated because of the lack of a speedy trial[16]. This would also mean that the ICC is allowing the case to continue without any substantive evidence. Any of these outcomes could have a great impact in the ICC.

Another aspect that the ICC should take into considerations are the victims of these crimes. The lawyer representing the victims stated that the victims are entitled to know who intimidated those witnesses, who ordered the intimidation, and for what purposes. [17] If the ICC decides not to move forward with the trial, the victims would have no other option to bring their case and would be left unheard, allowing the perpetrators to continue on with impunity. Therefore, in the Kenyatta case, the ICC’s decision comes down to a balancing act between the rights of the accused in trial and the rights of the victims, while at the same time ensuring the goals of the ICC to end impunity by encouraging national proceedings and prevent injustice for victims.

The political rhetoric that the ICC has an “African Problem” is just that – rhetoric and highly politicized. Although the Kenyatta case has proven to be one of the most difficult cases that the ICC has faced in the past years (and one that could have severe repercussions on the legitimacy of the court), when examined separate from other African cases which were either self-referred or referred by the Security Council, the court doesn’t have an “African Problem.” Instead, many African nations lack the infrastructure and are simply unable to prosecute many of these perpetrators. Yes, the ICC is not without issue, but perhaps we should focus more on building the rule of law in these nations instead of complaining about the state of the international court so that they can one day prosecute such individuals locally instead of in The Hague.  

Maya Zegarra is a third-year student at the University of Baltimore School of Law, planning to graduate in May 2015 with a concentration in International Law. She has a Sociology degree, and is fluent in Spanish, German, English and French. Maya grew up in Peru and attended a German high school, where she participated in a student exchanged program and lived in the Baden-Württemberg area in Germany for four months.

During the summer after her first year of law school, Maya studied abroad in France, where she focused on French Law, European Union Law, and Comparative Fundamental Rights. While in France, she interned with an international and criminal defense attorney. Most recently, she participated in the Annual International Humanitarian Law Seminar, hosted by University of Virginia Law, in March 2014. Her primary interests are international law and international humanitarian law. Through her internships Maya has worked on cases related to asylum, refugee, and immigration law.

In addition to being a Fellow at the Center for International and Comparative Law, Maya currently serves as the Publications Editor for the Journal of International Law, President of the Latin American Law Student Association, Vice-President of International Law Society, Treasurer of the Immigration Law Association, and 3L Representative of the University of Baltimore Students for the Public Interest. Maya is also a Maryland Rule 16 Student Attorney at the Immigrant Rights Clinic.

[1] Situation in the Republic of Kenya in the Case of the Prosecutor v. Francis Kirim Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Case No. ICC -01/09-0211 (January 23, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1314543.pdf [Hereinafter Kenyatta Case]

[2] Id. ; Scores dead in Kenya poll clashes, BBC News (December 31, 2007), http://news.bbc.co.uk/2/hi/africa/7165602.stm; Kenya: Death and Chaos After Kibaki Win, Allafrica.com (December 31, 2007), http://web.archive.org/web/20080103085403/http://allafrica.com/stories/200712310456.html

[3] Kenya Election: Uhuru Kenyatta wins presidency, BBC News (March 3, 2013), http://www.bbc.com/news/world-africa-21723488

[4] Kenyatta appears before the ICC court, Aljazeera (October 9, 2014), http://www.aljazeera.com/news/africa/2014/10/kenyatta-netherlands-hague-face-icc-charges-201410802514574650.html

[5] Does the ICC have an Africa problem?, Aljazeera America (February 7, 2014), http://america.aljazeera.com/opinions/2014/2/kenya-trials-keytoiccafricarelations.html

[6] Id.

[7] Kenyatta Case, supra note 1.

[8] Prosecutor Seeks Delay in Proceedings for a Kenyan, New York Times (December 19, 2013), http://www.nytimes.com/2013/12/20/world/africa/trial-of-kenyan-president.html?_r=0

[9] Id.; Aljazeera, supra note 4.

[10] International justice: You and what army? The Boston Globe (October 15, 2014), http://www.bostonglobe.com/opinion/editorials/2014/10/14/kenya-president-uhuru-kenyatta-slips-past-international-criminal-court/5izuCckt9iwsz50L7YiqVP/story.html

[11] Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, ICJ Reports (February 14, 2002, ICJ).

[12] Rome Statute, art. 13.

[13] Rome Statute, art. 17.

[14] Id.

[15] ICC Prosecutor Asks Court to Decide on Indefinitely Adjourning Kenyatta Case or Terminating It, International Justice Monitor (October 8, 2014), http://www.ijmonitor.org/2014/10/icc-prosecutor-asks-court-to-decide-on-indefinitely-adjourning-kenyatta-case-or-terminating-it/

[16] Rome Statute, art. 67.

[17] International Justice Monitor, supra note 17.

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Author: Ius Gentium

Ius Gentium is a legal forum for the University of Baltimore School of Law's Center for International and Comparative Law Fellows to write on and discuss international and comparative legal issues.

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