Diplomacy: Tough stance may keep Uhuru Kenyatta out of dock

Financial Times

When Kenya Airways celebrated the delivery of a $300m Boeing aircraft from the US this month, Uhuru Kenyatta, the Kenyan president, led the ceremony. So it was all the more remarkable that when Robert Godec, the US ambassador, arrived, there was no chair for him at the front.

Instead, he was seated at the back, while the chief executive of Kenya Airways berated the US for refusing it landing slots, even though the two countries are in talks about this. Mr Kenyatta followed with a speech showering praise on the Chinese ambassador, suggesting that flying the Boeing thrice-weekly to China offered a more fruitful partnership.

The crowning joke came from William Ruto, deputy president. He quipped that his shuttle to and from the International Criminal Court at The Hague – where he and Mr Kenyatta are facing trial for crimes against humanity for their alleged role in 2008’s post-election violence – was helping the Kenya Airways balance sheet. Mr Kenyatta said those trips might not continue much longer, perhaps a reference to impending case collapse or a refusal to co-operate.

The politicians’ attempt to evade the dock has become all-consuming, dissolving into a clunky diplomacy that has enraged some of the country’s closest partners, hijacked the work of the state and held up investment and reform.

Kenya has refused to accredit new ambassadors from countries that also happen to be prominent ICC funders, and criticised France, the UK and US for their “reckless abdication of global leadership”.

“Tactically, their decision to adopt a hardball tactic is having the opposite effect of what they think,” says a western official, who argues Kenya could face long-term fallout.

But, while Kenyan diplomacy is hardly elegant, it might be effective. Mr Kenyatta’s focus on undermining the ICC may be paying off, at least in the short term.

Despite the aggressive, personal onslaught on western friends, Mr Kenyatta’s team has played such a hard game that western interests are almost wed to his own best-case scenario, that his thrice-delayed trial, due to start at the beginning of February, will collapse.

“We need to be able to say due process has been followed. We need to say this thing has ended because of decisions in court rooms, not decisions in cabinet rooms,” says a western official who regrets the politicisation of the trial.

But cabinet rooms are involved, and international justice is at stake. The prosecutor’s team says decisions made outside court rooms are affecting the cases, citing witness intimidation, bribery and even death. The latest three-month extension risks more witnesses dropping out.

Domestic rights campaigners are aghast that Mr Kenyatta has been able to reframe what he once described as “a personal issue” as the humiliation of all Africa. His castigation of the ICC, with the support of some of Africa’s most prominent leaders, as “a fetid insult” to Africa and “the toy of declining imperial powers” has roused hardliners – none of them ICC members – in the African Union around a cause they can champion with glee.

“We are feeling defiant,” says a member of Mr Kenyatta’s kitchen cabinet, who dismisses arguments that western diplomats will lose patience.

The vote at the UN Security Council, which failed to secure a one-year trial deferral , is a case in point. Kenya said veto-holders who abstained, a reference to France, the UK and the US, “had shown contempt for the African position” and that the Security Council “humiliated the continent”.

Officials say that, had Kenya only couched its approach better, it might have won its request to defer the case in the wake of the Westgate atrocity .

But, while the UK said it was “disappointed” that the draft resolution was “unnecessarily” put to a vote, it has also turned itself into Kenya’s ally – tabling an amendment to the Rome Statutes that underpin the ICC, so Mr Kenyatta can attend trial by video link. Short of the case collapsing, or a further amendment that spares sitting heads of state from having to take the stand, the UK might be about to deliver the best available solution for Mr Kenyatta.

Human rights activists are smarting at the development. “If a trial isn’t worth attending, then it isn’t worth holding,” says Gladwell Otieno, executive director of the Africa Centre for Open Governance. She argues it would be a victory for impunity to reduce the requirements just because Mr Kenyatta became head of state after he was indicted – he won the presidential election in March by a wafer-thin margin. The controversy that followed raised fears, which proved unfounded, of a repeat of the 2008 violence.

But, if Mr Kenyatta cannot secure his escape route, undiplomatic seating arrangements might be only the beginning. Mr Kenyatta has stopped short, so far, of non co-operation or ducking out of membership of the Rome Statute, despite a convenient parliamentary vote urging as much. That year-long process might imperil aid agreements, widen the diplomatic breach and turn Kenya into a pariah state.

Some still worry about reaching breaking point: “We are not entering into the provocation game,” says a senior foreign official. “We have all manoeuvred ourselves into a situation where everybody stands to lose face. But Kenya stands to lose much more.”-