Washington faces Kenya dilemma

(By Deutsche Welle) Kenya has elected a president accused of crimes against humanity by the ICC. The US now walks a tightrope in its relations with Nairobi, a key ally in the war against Islamist militants in Somalia.

Should Uhuru Kenyatta survive a legal challenge by his defeated opponent and assume office as Kenya’s fourth president, his term will begin with a trial before the International Criminal Court in The Hague on charges of crimes against humanity. Kenyatta is accused of facilitating murder, deportation, rape, persecution and other inhumane acts. His vice president, William Ruto, faces similar charges.

Washington has followed the election with concern. Nairobi is a key player in the US-backed fight against al-Qaeda-linked Islamist militants in neighboring Somalia. Kenya currently has some 4,000 troops engaged there in the fight against al-Shabab.

“Kenya has been a major ally of the United States whenever it comes to conflict in the region whether it be genocide in Rwanda or it be problems in Somalia or humanitarian relief that is required somewhere in the region,” David Shinn, former US director for East African affairs, told DW.

“You need to have Kenya on board for logistical purposes in both Mombasa and Nairobi,” Shinn said. Mombasa hosts a port critical for East African trade and Nairobi is a regional financial center.

Prior to the Kenyan election, the US State Department made a veiled threat that a Kenyatta victory would carry consequences for the relationship between Washington and Nairobi.

“We live in an interconnected world and people should be thoughtful about the impact their choices have,” said US Assistant Secretary of State for African Affairs Johnnie Carson.

Pledge of cooperation

The charges against Kenyatta stem from Kenya’s disputed 2007 elections. Outgoing President Mwai Kibaki was declared the winner of that contest through electoral fraud, sparking violent protests and riots among the supporters of his opponent, Raila Odinga. The violence targeted Kibaki’s supporters, who were often from the Kikuyu ethnic group.

During the 2007 crisis, Kenyatta allegedly helped facilitate revenge attacks against Odinga supporters, who were often ethnic Luo, Luhya and Kalenjin. Odinga ran and lost against Kenyatta in the 2013 presidential election and has vowed to challenge the result through the courts.

More than 1,000 people were killed in the 2007 post-election violence and at least 660,000 Kenyans were displaced. According to a report by the International Crisis Group, the violence brought Kenya – East Africa’s trade and finance hub – to the brink of civil war.

In his victory speech on Saturday, Kenyatta promised to fulfill Nairobi’s international obligations, suggesting that he would cooperate with the ICC proceedings. But he also called on the world to “respect Kenya’s sovereignty.”

Legal implications

Since the US is not a member of the ICC, Washington is not under any “formal legal obligation” to cooperate with the court in the case against Kenyatta, according to Vijay Padmanabhan, an expert on international criminal law at Vanderbilt University.

But the Obama administration has made a policy decision to cooperate with the ICC as much as possible, short of becoming a formal member. During the 2011 civil war in Libya, for example, Washington supported a UN resolution that referred suspected crimes of the Gadhafi regime to the court for investigation.

“It does place the administration in a bit of a pickle, if it wants to continue its supportive relationship with the ICC on the one hand and on the other hand its traditionally important relationship with Kenya on a range of issues, including counterterrorism,” Padmanabhan told DW.

The UN Security Council could invoke its power to suspend an ICC case for a period of up to a year, Padmanabhan said. Washington and its French and British allies have permanent seats and veto power on the council. But Padmanabhan believes the most likely scenario is for Washington to simply go about business as usual, so long as Kenyatta fulfills his promise to cooperate with the court.

Flimsy case?

On Monday, ICC chief prosecutor Fatou Bensouda dropped all charges against Francis Muthaura, one of Kenyatta’s co-accused. Muthaura faces charges identical to those leveled against Kenyatta.

“We no longer believe there is sufficient evidence to prove the charges against Muthaura beyond reasonable doubt,” said Bensouda, citing deceased witnesses and alleged lack of cooperation on the part of the Kenyan government.

The ICC presiding judge, Kuniko Ozaki, said that Bensouda’s announcement “has implications” not only for the Muthaura case, but also for Kenyatta.

Jendayi Frazer, former US assistant secretary of state for African affairs, was on the scene in Kenya shortly after the post-election violence broke out in 2007. She believes that the case against Kenyatta is politically motivated.

According to Frazer, in the aftermath of the post-election violence, the Kenyan national parliament had the option of establishing a special national tribunal or letting the case go before the ICC. She said that parliament, controlled by Odinga’s opposition Orange Democratic Movement (ODM), decided to let the case go before the ICC.

“We have a legal principal called presumed innocent until proven guilty,” Frazer said of the US position. “And he hasn’t been proven guilty.”

“We have strategic interests in Kenya,” she added. “I don’t see those being changed by the fact that Kenyatta has been elected.”

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