The President of Kenya, Uhuru Muigai Kenyatta, announced on October 6 that he will be appearing in before the International Criminal Court (“ICC”) for trial status hearings on October 8. Kenyatta faces charges of organized ethnic massacres during the 2007 elections that killed over 1,200 people, charges he vehemently denies. The charges facing Kenyatta stem from the worst violence in Kenya since its independence in 1963. Kenyatta was a close ally of President Mwai Kibaki, who was declared the winner of the 2007 election. Kibaki’s rival claimed the results were fraudulent. The dispute pitted members of Kenyatta and Kibaki’s ethnic group, the Kikuyu, against the other communities. Kenyatta is accused of organizing an ethnic gang to attack the rival groups. Specifically, Kenyatta is allegedly criminally responsible as an indirect perpetrator pursuant to article 25(3)(a) of the Rome Statute for the crimes of humanity such as murder (article 7(I)(d)), deportation or forcible transfer (article 7(I)(d)), rape (article 7(I)(g), and other inhuman acts (article 7(I)(k)).
Kenyatta will be the first sitting head of state to appear before the ICC as an accused person. Kenyatta claims he is travelling to The Hague in a personal capacity, not as the President. Kenyatta. In an unprecedented move, Kenyatta evoked article 1473 of the Kenyan Constitution to appoint the deputy president, William Ruto, as acting president while he attends the status conference in the Netherlands. In the days leading up to his hearing, Kenyatta has been reassuring Kenyans that his appearance in front of the ICC is not going to compromise the sovereignty of the Kenyan people and that their democratic will should never be subject to another jurisdiction.
Members of the Kenyan government applaud Kenyatta’s decision to hand over president powers, saying that the charges against Kenyatta are a personal matter, and personal matters cannot be transformed into a national issue. Likewise, Kenyatta himself believes the pending case is a personal matter that should not set a precedent for the attendance of presidents before the court.
Had Kenyatta refused to appear before the ICC he would have risked an arrest warrant, as well as international condemnation and possible economic sanctions.
There is a divide among the Kenyan population on whether their president should appear before the ICC. Some view ICC, with its western leaning membership, as an affront to African Leaders. While other citizens believe the president has a duty to appear or he risks Kenya being seen as a rouge state that should be shunned internationally.
Was Kenyatta’s transfer of power to the deputy president enough to prevent the creation of a precedent requiring the attendance of presidents before the court? What are the legal implications of compelling a head of state to appear without an arrest warrant? What are the legal implications of the ICC threatening economic sanctions to compel the appearance of a head of state? Is the ICC threatening the sovereignty of Kenya?
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What I find most interesting is that Kenyatta and the Kenyan government have filed this instance as a personal issue for the President, as opposed to a political or human rights violation. Despite temporarily removing himself as President, Kenyatta does not automatically remove his responsibilities and duties to his country as a political head of state. If anything, this removal indicates that more than a personal capacity is affected. Such is also indicated by the fact that had Kenyatta refused to appear before the ICC, an arrest warrant and international sanctions would have been issued.
While Kenyatta ultimately represents Kenya I don’t believe this decision threatens the sovereignty of Kenya as a country. If anything, the ICC is threatening the actions taken by the head of state and the negative impression he bestows upon his country through his involvement in ethnic massacres. There may be a fine line in existence, but there is such.