When Alleged Perpetrators of Crimes Against Humanity…Have a Presidential Debate

Kenya ICC

Kenya ICC

Imagine candidates in a presidential debate arguing over who should end up at the International Criminal Court (ICC). Bizarre, right? Well, imagine no more; that is exactly what happened in Nairobi earlier this week when Kenya’s presidential candidates squared off in a debate that, in many respects, looked similar to when leadership hopefuls in the US square off.

But there was one striking difference: the conversation. Almost half an hour of the debate focused on the allegations against Uhuru Kenyatta who has been indicted by the International Criminal Court for his alleged role in the 2007-08 post-election violence that ravaged Kenya.

The key question in the debate – and on everyone’s mind leading up to the March election – was what would happen if Kenyatta, as an ICC indictee charged with crimes against humanity, were to be elected. Kenyatta is scheduled to stand trial in The Hague just days after the election takes place and he is, according to most sources, among the front runners to become President.

One of the candidates, Martha Karua, argued that Kenyatta should put aside his ambitions to become the next Kenyan President. Indeed, she claimed that Kenyan law obliged Kenyatta to step down.

While he appeared nervous and uncomfortable, Kenyatta remained unfazed and stuck to his script. He declared that his candidacy was a matter for the Kenyan people to decide and that voting for him was a vote of confidence in his ability to both run the country and clear his name.

To this, Raila Odinga, another front runner, provided the best quip of the evening when he responded: “I know that it will pose serious challenges to run a government by Skype from The Hague.”

The debate then shifted away from the issues pertaining directly to the ICC to questions of whether Kenya was able to prosecute perpetrators of atrocities itself (see video below).

Andrea Russell recently wrote that 2013 will be a decisive year for Kenya and the ICC. Following the unsavoury footsteps of Sudan, there is a good chance that the country could become only the second country with a sitting head of state indicted by the ICC.

Of course, how the Kenyan election and ICC trials shake out is anyone’s guess. But one thing is for sure: the ICC has never had a situation like this, with an indictee standing at a lectern during a Presidential debate declaring that he is able and willing to face his charges and to run his country simultaneously.

Here’s the relevant debate footage pertaining to the ICC (via Reporting Kenya):


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in International Criminal Court (ICC), Justice, Kenya, Ocampo Six and tagged , , . Bookmark the permalink.

12 Responses to When Alleged Perpetrators of Crimes Against Humanity…Have a Presidential Debate

  1. paul calen says:

    Would it be possible to hold the trial in Arusha instead ?

  2. paulcalen says:

    Would it be possible to hold the trial in Arusha instead before it is too late ? Many witnesses are dead or have disappeared.

  3. Tony Irungu says:

    As usual, your jaundiced pro-ICC views colour your ill-informed narrative. First of all, the election is not in April, it is on March 4th, exactly two weeks from today. Secondly, Kenyatta is not a guilty person, so far. He is only a suspect courtesy of some highly questionable so called evidence.

    The case that was confirmed by the Pre-trial chamber was entirely built around the ‘evidence’ of one single witness who claimed that he saw Kenyatta in attendance at a meeting in the Presidential mansion called State house where plans were allegedly mooted to execute crimes against humanity. The same witness later retracted his testimony and admitted that he had lied to implicate Kenyatta, but the prosecution never informed the defence about this development. Now the prosecutor wants to proceed to trial based on completely new UNCONFIRMED evidence and witnesses! Thirdly, it is imperative to note that Kenya’s new constitution allows suspects to run for political office until all possibilities of appeal in an ongoing case are exhausted.

    There is therefore nothing strange nor is there is any reason for you to get your knockers in a twist over Kenyatta running for President. Ultimately, it is the Kenyan people who will decide his political fate, not prejudiced busybody westerners with hidden, malicious agendas.

  4. Mark Kersten says:

    Hi Tony,

    Thanks for the comment. I had long ago fixed the date to March (rather than April). And also, I was quite careful in the blog post not to assume guilt. Even in the title, it reads “Alleged Perpetrators”. As far as I can tell, no phrasing or sentence in the article presumes guilt.

    As for whether Kenyatta can run for political office or not, that is obviously a matter for Kenyans to decide. Clearly some of the candidates believe he should step aside if he is to spend the next few years in The Hague. This is a practical concern for Kenyans, as much as one about justice: do you think someone who is facing trial at the ICC is able to fulfil the functions required of a President? Lastly, what is quite interesting about the Presidential debate is that his guilt or innocence was (almost entirely) not up for debate. It was, instead, this more practical question of how to run a country and face serious charges at the same time. Of course, this presumes that Kenyatta, come April, will be willing to actually go to The Hague.

    • Elizabeth Kirmis says:

      First, it is Mark’s blog so he might be stating his preferences which are pro-ICC. And he sometimes hears privately from me who is anti-ICC.
      Second, “Alleged Perpetrators” has been so used and mis-used by journalists and MSM to be another way of screaming the Guilty Party! that the use of those words could be seen as offensive — just saying.
      Third, as with Maya, Kenyans believe they should be the judges on Kenyetta. Frankly, I believe she will be able to get maybe one conviction from the four. I doubt she will on Kenyetta for the reasons stated and there are probably more that are not in print.

      JMO, that’s all.

  5. Maya says:

    I think this is a fascinating situation, and the footage is very instructive. I am surprised at how measured the other candidates’ responses were. No one made a strong call for him to step aside, which is perhaps surprising in light of how this issue has been portrayed in the Western media. I watched an interview with Kenyatta on al-Jazeera a few weeks ago and his performance was much weaker. He has been practicing and overall I think he held his own.

    On the substantive issue, I sympathize with Kenyatta and most of the other candidates. The presumption of innocence should indeed apply, and it is deeply problematic that someone should step aside simply because charges are leveled at him or her. Were Kenyatta to step aside, I think everyone agrees it would be hugely problematic if the ICC then acquitted him. Wouldn’t this be even more serious than what is happening now, i.e. a foreign court’s unsubstantiated accusations interfering in domestic democratic processes? I also think that comparisons with Sudan are somewhat misleading because – unlike with Bashir – Kenyatta has agreed to cooperate with the Court. Nonetheless, the practical problem of what happens if Kenyatta is convicted remains to be answered. Kenyatta skillfully avoided it and, surprisingly, none of the candidates pressed the issue.

    • Elizabeth Kirmis says:

      Little update: today there is a BBC article that the prosecution is amiable for a later date in the year for the trial to begin so if there is a run-off all will be available for that run-off.

      Also noted was that defense attorneys in claiming they needed more time to prepare stated the prosecution has not turned over to them all the evidence. Hmmmmm

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  7. Pingback: Politics as internal conflict by other means? Kenya braces itself for elections | TerraNullius

  8. Andrew says:

    As the votes are tallied, I thought of this blog entry that I read sometime back. Your blog is always on point. Uhuru Kenyatta and William Ruto are at the moment leading in the ballot. Even if they do not win (although I think they are likely to), I believe there has been a serious dent to the legitimacy or standing of international criminal justice. Here is a group of people saying ‘Yes, they are charged but so what?’ As with most national systems, justice is quite political, e.g. who the executive decides to prosecute, etc. I would say this applies as well to international justice.

    My question then is, and quite independent of the “West v Third World countries” argument bandied around (often with reason),what do you think of the legitimacy of international criminal justice following Kenya’s general elections? As it’s said, justice should not only be done but be seen to be done. This is more so having in mind how the cases are unfolding.

    I can’t resist a second question. Linked to legitimacy, given the threshold of those ‘most responsible’, to what extent, other than reparations, can international justice offer victims of international crimes…particularly at the ICC? It seems to me the process is flawed as it may end with nothing left for most victims – Fatou’s/Ocampo’s biggest trumpet call. See this video when you can: http://www.youtube.com/watch?v=6_fpLfzunXw When the case went to trial and the crime bases defined, these areas in Nairobi (Mathare and Kibera) were left out. What would be your opinion in regard to international justice in this sense?

  9. Mark Kersten says:

    Andrew – thank you for your comment and for your kind words regarding the blog. It is greatly appreciated.

    I think, right now, it is still too early to say what effects the election will have on the legitimacy of international criminal justice. It may be months before it is determined whether Kenyatta and Uhuru will indeed attend trial in The Hague and whether the Supreme Court of Kenya will rule on their being able to be in office while facing allegations at the ICC.

    The second question is a bit more difficult but I understand the frustration that victims often appear to get the ‘short end of the stick’. Indeed, I think victims and survivors are often forgotten in debates on international criminal justice in Kenya. Rather, (and I am at fault for doing this at times as well), we focus almost exclusively on the perpetrators. As for what international criminal justice has to offer them, it is generally argued that justice can establish the truth, provide reparations, provide a process where victims can participate in achieving justice, provide an acknowledgement of past wrongs and, hopefully, contribute to the prevention of future crimes.

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