In the aftermath of the attack on a Nairobi shopping mall, Kenya’s president appears increasingly unlikely to attend his trial at the International Criminal Court where he is charged with crimes against humanity.
Even as heads of state prepare to gather for an African Union summit on Saturday, where they could debate the possible exit of some African countries from the International Criminal Court, Kenyan officials are warning that President Uhuru Kenyatta may not appear in person at The Hague next month for his trial.
“He has cooperated fully with the court up until now,” Foreign Minister Amina Mohamed told a news conference held in front of the president’s downtown Nairobi office on Wednesday. She was referring to past ICC hearings before Kenya’s presidential election in March.
Mohamed underscored the contrast between then – when Kenyatta was the country’s deputy prime-minister and a presidential candidate – and now, when he is president of East Africa’s most powerful country, which faces a rising
threat posed by al-Shabab rebels who are fighting Kenyan forces in neighbouring Somalia.
“Are the circumstances different? Absolutely. Totally. Completely different. Before he wasn’t the head of state of the republic. … It’s going to be the first time that a sitting head is brought before any court of any time, not just here but anywhere in the world,” Mohamed said.
The ICC charges against Kenyatta and Deputy President William Ruto relate to Kenya’s 2007-08 postelection violence that killed more than 1,000 people.
Kenyatta has asked the court if he can attend the trial by video link. Judges have not yet ruled on that request, but have rejected a similar request from Ruto.
Herman von Hebel, an ICC executive, told reporters in The Hague on Wednesday that Kenyan authorities have so far fully cooperated with the case and he has not yet seen “any concrete element” to indicate that will change.
Before this year’s election, the top US official for Africa obliquely warned Kenyans that it would not be a good idea to elect Kenyatta as their president because of the ICC charges, saying “choices have consequences”.
Al-Shabab claimed responsibility for the September 21 assault in Nairobi and said it was in retaliation for Kenya’s sending of troops into neighboring Somalia.
If Kenyatta decides not to attend the ICC trial, Kenya could become politically isolated and be sanctioned. But after the mall attack that killed more than 60 people, international repercussions may be lighter.
Officials at the US Embassy refused to comment on the developments and the possibility that Kenyatta may snub the court.
“The already strong but now reinforced counterterrorism relationship between Kenyatta’s administration and the US and UK will likely diminish the impact of ongoing ICC cases against Kenyatta and his deputy,” said Clare Allenson of the political consulting firm Eurasia Group.
She pointed out that the West’s heightened security engagements with Kenya “will require more direct interaction and support of the Kenyatta administration at a senior level, including with the president himself”.
At the African Union summit in Ethiopia’s capital, African leaders could recommend a deferral of Kenyatta’s case, or even seek to rebuke the court or sever the continent’s relationship with it. Kenya’s parliament in a non-binding vote last month voted to pull out of the Rome Statue, the legal mechanism that created the ICC.
On Wednesday, Foreign Minister Mohamed denied that Kenya would be urging other African governments to follow suit at the AU summit.
The ICC faces a perception that it singles out Africans for prosecution, even though many of the cases before the ICC were self-referred, said David M. Crane, a professor at Syracuse University College of Law.
More than 1,000 people were killed in Kenya’s postelection violence six years ago, for which Kenyatta is standing trial. Kenyan courts have prosecuted less than a half dozen people.