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Abstract
Kenya's 2013 election was supremely important, but for a reason not normally highlighted or discussed. Uhuru Kenyatta and William Ruto's run for president and deputy president as International Criminal Court (ICC) indictees was a key strategy to deflect the court and to insulate themselves from its power once they won the election. The paper maintains that the strategy entailed a set of delaying tactics and other pressures to ensure that the trials would not take place until after the election when their political power could be used to maximum effect to halt or delay them. However, unlike in 2007–08, the 2013 election did not result in mass violence. The Kenyatta–Ruto alliance united former ethnic antagonists in a defensive reaction to the ICC. The analysis has implications for theories seeking to explain why countries ratify and comply with treaties. It develops an alternative political economy argument to account for outliers like Kenya and has implications for international criminal justice and democracy in Kenya.
Acknowledgements
Thanks to Ron Rogowski, Phil Keefer, and Millard Long for comments; to Stephen Chaudoin for his unpublished article; and to Nic Cheeseman and Gabrielle Lynch for editorial suggestions.
Notes
1. For a fuller discussion see CitationMueller, “Kenya and the International Criminal Court”.
2. ICC-CPI-20131002-PR 948, 2 October 2013; ICC-01/09-02/11-848-Red, 11 November 2013.
3. CitationNorth, “Economic Change through Time,” 359–68.
4. Cf. CitationPosner and Young, “Institutionalization of Political Power”.
5. CitationHathaway, “Cost of Commitment,” 15–18.
6. ICC-01/09-19, 31 March 2010.
7. ICC-01/09-02/11-687, 11 March 2013; ICC-01/09-02/11-692, 13 March 2013.
8. CitationDutton, “Commitment to the International Criminal Court.”
9. CitationVreeland, ‘Political Institutions and Human Rights,” 65–101.
10. CitationMoravcsik, “Origin of Human Rights Regimes,” 220.
11. CitationSimmons and Dammer, “Credible Commitment and the International Criminal Court,” 227, 231–6.
12. CitationChapman and Chaudoin, “Ratification Patterns and the International Criminal Court,” 400–9.
13. CitationGinsburg, “Clash of Commitments,” 505–6.
14. CitationVon Stein, “Engines of Compliance.”
15. CitationRome Statute of the International Criminal Court, Articles 17, 18.
16. CitationRepublic of Kenya, National Assembly Debates, 4 November 2001, 3093–4; 20 November 2001, 3198; 1 October 2003, 2703–5.
17. CitationHansen, “International Criminal Court in Kenya,” 187.
18. CitationMokaya, “Kenya: Ratify Hague Court Treaty.”
19. CitationHathaway, “Cost of Commitment,” 15–18.
20. CitationRepublic of Kenya, Report of the Commission of Inquiry.
21. CitationRepublic of Kenya, Report of the Judicial Commission.
22. See CitationBrown, “The Big Fish”, and CitationMueller, “Dying to Win”.
23. ICC-OTP-20090930-PR456, 30 September 2009.
24. CitationOmbati, “Gang Breaks into Imanyara’s Office.”
25. CitationGekara, “Why President’s Men are Wary.”
26. CitationKegoro, “On the Brink,” 18–22.
27. CitationMureithi, “Local Trials for ICC Suspects.”
28. CitationUnited Nations Security Council (UNSC), Kenya and the ICC.
29. CitationMenya, “Kenya: Fresh Shuttle Diplomacy.”
30. ICC-01/09-02/11-496, 28 September 2012; ICC-01/09-01-11-522; ICC-01/09-02/11-591 Annex B, 7 January 2013.
31. CitationOlick, “AG Hints at Bid.”
32. CitationKelley, “Newly-Appointed Envoy Leads Bid.”
33. The ICC president said if Kenya wanted the cases back it should mount another admissibility challenge; CitationDaily Nation, “Kenya Launches Fresh Attempt.”
34. CitationOdula, “Hero’s Welcome for Kenya’s.”
35. Rome Statute, Articles 17–19.
36. Due to space restrictions it is not possible to list the multiple pleas on admissibility and jurisdiction available on the ICC’s website (http://www.icc-cpi.int/kenya). For the final admissibility judgment, see ICC-01/09-02/11 OA, 30 August 2011.
37. CitationAllen, “Claims of Witnesses in Kenya.”
38. The ICC reported that Gitau had said he wanted to meet Ocampo who was in town; ICC-01/09/02/11-248-Red, 11 November 2013, 5.
39. CitationWikileaks Cable, “Kenya: Inadequate Witness Protection Program.”
40. CitationMayabi, “Mungiki Leaders Who Lead.”
41. CitationThe Star, “Kenya: Ocampo Witnesses Escape Death.”
42. CitationThe Star, “Kenya: Ocampo Witnesses Escape Death.”
43. Makau Mutua claims there was a mole inside the KNCHR. See Footnotenote 46.
44. CitationRajab, “I Am Ready to Set the Record Straight.”
45. “ICC Statement,” 23 March 2013. Accessed 26 March 2013. http://www.dennisitumbi.com/.
46. CitationNdanyi, “ICC Witness Family Flee.”
47. CitationMutua, “How they Tampered.”
48. ICC-01/09-02/1173, 9 April 2013; ICC-01/09-02/11-687, 11 March 2013. The GOK’s points were then denied in a submission by the prosecution; ICC-01/09-01/11-670; ICC-01/09-01/11-730-Red, 10 May 2013.
49. CitationOlick, “Three More ICC Witnesses.”
50. CitationLucheli, “Ninety Three Post Election.”
51. ICC-01/09-02/11-733-Red, 18 July 2013; also CitationMathenge, “Three More Witnesses Quit.”
52. ICC-01/09-011-810-Red, 11 July 2013.
53. CitationWabala, “Four More Witnesses Against Ruto.”
54. CitationDaily Nation, “Fresh Blow for Bensouda.”
55. CitationTeyie, “Witnesses Tell of Cartel.”
56. CitationOlick and Jennings, “Kenya: Lawyers Say Kenya.”
57. CitationKegoro, “Moves by EA States.”
58. Statement of the Prosecutor,” ICC Public Affairs Unit, 19/12/2013.
59. CitationWarah, “How the ICC Helped.”
60. CitationOpiyo, “Kibaki, Raila Should Be.”
61. Donors put pressure on Kenya not to elect the indictees and warned of consequences and minimal contact if they did. Reactions to this include CitationLeftie, “Keep Off Kenya Elections.”
62. CitationMueller, “Political Economy of Kenya’s Crisis”; also CitationLynch, “Electing the ‘Alliance of the Accused.’”
63. Ipsos-Synovate Poll, “Confirmation Hearings Boost Support for ICC Process.” 4 November 2011. http://www.ipsos.co.ke/home/index.php/downloads/.
64. Ipsos-Synovate Poll, “Confirmation Hearings Boost Support for ICC Process.” 4 November 2011. http://www.ipsos.co.ke/home/index.php/downloads/.
65. CitationThe Star, “Raila Pledges to Return.”
66. CitationMathenge, “I Can Run Kenya.”
67. Ipsos Synovate Political Barometer Survey, 10 July 2013. http://www.ipsos.co.ke/home/index.php/.
68. ICC-01/09-01/11, 18 June 2013; ICC-01/09-01/11-783, 24 June 2013.
69. ICC-01/09-01/11-763, 3 June 2013. A similar request is pending in the Kenyatta case. Also see CitationWafula, “ICC Cases Must Never Be Referred.”
70. ICC-01/09-01/11-862, 20 August 2013,
71. ICC-01/09-01-01/11OA 5, 27 September 2013.
72. CitationKegoro, “ICC Seen Leaning Heavily.”
73. ICC-01/09-01/11 Qa 5; ICC-01/09-01/11-1066-Anx, 25 October 2013.
74. CitationDaily Nation, “Suggest Trial Venue, Uhuru Lawyers Told.”
75. ICC-01/09-02/11-830 and 830-Anx 2, 18 October 2013, para. 122; ICC-01/09-02/11-863, 26 November 2013.
76. CitationGekara, “President Kenyatta’s Stinging Attack.”
77. CitationGhana Web, “Pulling Out of the ICC.”
78. CitationNorth, “Economic Change through Time.”
79. CitationHathaway, “Cost of Commitment.”
80. CitationMusau and Mathenge, “Transfer Uhuru, Ruto ICC Cases.”
81. CitationOlick and Jennings, “Kenya Concern as ICC.”
82. ICC-01/09-02/11-752, 6 June 2013, 6.
83. CitationLucheli, “CJ Got Threats.”
84. CitationMatata, “Kenya: CJ Mutunga says Email.”
85. CitationGithongo, “Whither Civil Society?”
86. CitationHathaway, “Cost of Commitment,” 17.
87. CitationNorth, “Economic Change through Time,” 364–5.