The International New York Times.
NAIROBI, Kenya — Will he or won’t he? That is the question Kenyans have been asking in recent weeks. The International Criminal Court has ordered President Uhuru Kenyatta to appear, in person, before the tribunal on Wednesday for alleged crimes against humanity. Will he comply, or will he follow the urging of the African Union and refuse — sending a signal that a court biased against Africa has no right to judge a sitting African head of state?
The president’s legal team has advised him to go to The Hague, if only to avoid an international outcry and a possible Interpol arrest warrant. Either way, it will be a punctuation point in the I.C.C.’s checkered history. President Kenyatta would be the first incumbent leader of a nation to stand before the court. He could also be the last.
These days, even the most strenuous supporters of the court agree with its critics on one point: The International Criminal Court’s handling of the Kenyan case has done more damage to the accusers than the accused. The court’s reputation has suffered, perhaps fatally. By contrast, the Kenyan president and his fellow-indictee, Deputy President William Ruto, are set to emerge from the judicial ordeal as African folk heroes — the face of a new generation of independence fighters to stand against American and European neocolonialists conspiring to bring them down.
Formally, the hearing set for Wednesday doesn’t mark the beginning of anything, let alone a trial. Rather, it is what legal experts call a “status conference,” called by the judges to review the state of the legal proceedings. By any measure, it’s not good. Twice in the last year, the I.C.C. prosecutor, Fatou Bensouda, has requested an indefinite adjournment on grounds that she lacks the evidence to make her case. Repeatedly, she has accused the Kenyan government of refusing to hand over President Kenyatta’s personal financial records — requested in hopes that they might implicate the president in the ethnic violence that convulsed the country after the bitterly contested elections of December 2007.
More fundamentally, the prosecution has been compromised by witnesses who have either withdrawn from the case or recanted on previous testimony. In Nairobi, rumors swirl that the government has been paying off or intimidating witnesses. True or not, such reports cut both ways. Taking the stand, some witnesses have claimed that they were paid by I.C.C. prosecutors to deliver false testimony. At least one confessed to forging hotel receipts and other expenses covered by the court. Still others have admitted to being seduced to testify by the prospect of living abroad, costs paid, as part of the court’s witness protection program — a credible incentive, to be sure, given that so many Kenyans dream of escaping poverty at home by getting a visa to work in the United States or Europe.
All told, many legal experts agree that the otherwise serious case against Mr. Kenyatta has degenerated into something more resembling a circus, if not an outright farce
Ironically, Kenya was originally among the international court’s most strenuous African supporters, signing the Rome Treaty in hopes that the tribunal could help end the impunity with which so many African dictators oppressed their people. Today, by contrast, the court is increasingly viewed as a dispenser of “white man’s justice.” Capturing this lamentable new zeitgeist, a recent article in the Daily Nation, Kenya’s leading newspaper, compared the Hague trial of Uhuru Kenyatta to the 1952 trial of his father, Jomo Kenyatta. Fearing that the elder Kenyatta would lead Kenya to independence, as he subsequently did, Britain’s colonial authorities trumped up charges implicating him in the infamous Mau Mau rebellion.
Lacking concrete evidence, the government created witnesses by offering them healthy financial incentives, according to the legal scholar Obuya Bagaka of the Kenya School of Government. Not content to leave anything to chance, colonial officials further decided to bribe the judge in the case. For an amount of 20,000 pounds (more than $50,000 at the time), colonial-era documents have shown, the presiding magistrate delivered the desired verdict and sent Jomo Kenyatta and his alleged henchmen to jail.
It’s unsettling that this scandalous episode should color today’s I.C.C. proceedings, for it shows the extent to which the international court’s credibility has been compromised. African leaders have long criticized the tribunal as overtly politicized, with a built-in bias against Africans. Others accuse it of being strong against weak countries, and weak against strong ones.
The Kenya case has only deepened that prejudice. To them, the I.C.C.’s insistence that President Kenyatta attend the status conference in person smacks of a colonial star chamber, with the judges less concerned about administering justice than affirming the court’s own standing in the face of eroding global support.
All this comes against the backdrop of the court’s performance elsewhere. The I.C.C. has been asked to investigate alleged crimes in 139 countries but, so far, has done so in fewer than a dozen, issuing over 30 arrest warrants — all in Africa. As for its effectiveness as an instrument of justice, consider that the court’s first conviction (one of only two so far), concerning the Democratic Republic of the Congo, was referred to the I.C.C. in 2004 and is still under appeal.
It’s not clear how the court will rule in this week’s hearing. The judges could terminate the case, as President Kenyatta’s lawyers will request, or order the prosecutor to carry on despite the lack of evidence.
Clearly and emphatically, the world needs an international criminal court. Just not this one .
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