The USA, Uhuru Kenyatta and the ICC

There has been much talk about how Uhuru Kenyatta’s apparent victory in Kenya’s election may undermine Kenya’s relationship with the international community in general, and the United States in particular.  Kenyatta and his running mate William Ruto have been indicted by the International Criminal Court for allegedly orchestrating violence following disputed elections in the winter of 2007/8.

Having an erstwhile member of the international community in good standing (and key US ally) lead by a man under ICC indictment is clearly sub-optimal from a diplomatic point of view.  The policy response from the USA, however, should not be all that complicated.

Kenyatta is not a fugitive. There is no warrant out for his arrest. Rather, he’s been indicted by the prosecutor — and is presumed innocent until proven guilty. Kenyatta has said he would cooperate with the court, and even if elected he would still stand trial to defend himself from these charges.

American policy should be designed to encourage him to make good on his promise to appear before the ICC, without prejudice to whether or not Washington believes he is guilty.

A statement from President Obama that expresses the USA’s clear expectation that Kenyatta follows through on his promise to defend himself at the ICC could go a very long way.  And if a message from Kenya’s most popular politician is not convincing enough, the USA has considerable leverage in Kenya. Military and development aid from the USA amounted to about $1.3 billion last year.

These investments have yielded impressive results. Human development indicators have improved; and Kenya played a key role in rooting out Al Shebaab from neighboring Somalia. But if Kenyatta changes tune and defiantly refuses to defend himself, he will become an international fugitive and these investments will be at risk. On the other hand, if he voluntarily stands trial there is no reason for the USA or international community to withhold support for Kenya; Kenyatta would simply be fulfilling his legal obligations.

The USA doesn’t need to expect any particular verdict in this trial, but it should expect that he cooperates with the court. The trial is scheduled to commence in July, so we will not have to wait long to see if Kenyatta keeps his word.