Kenyatta and the ICC: Which way out?

It has been a difficult two months for Kenyan president Uhuru Kenyatta and his colleague Vice President William Ruto. In October 2013, a motion in a summit of the African Union (AU) calling for the withdrawal of African countries en masse from the International Criminal Court system in protest against the ICC’s indictment of Kenyatta and Ruto on charges of crimes against humanity was defeated. Then a month later, an application by a desperate AU to the UN Security Council to have President Kenyatta’s trial deferred by one year was also defeated.

There are only two ways by which President Kenyatta could have made the ICC drop the case against him: by power and by strength. If it was by power, he would have had to rely on means that could make the court drop its charges willingly; and if it was by strength, he would have had to rely on means that could make the court drop its charges in spite of its reluctance to do so. Power would have been the better choice because its application does not impose on the user the degrees of physical exertion and illegality that attend the application of strength. This should be apparent in the fact that while strength is realized through the use of force, intimidation, and guile, power comes to us through the force of goodwill, the force of authority, and the force of persuasion—the three things that make people do our will willingly.

Kenyatta’s team did try to rely on power to disentangle him from the ICC web, but they availed themselves only of its feeblest source. Goodwill is the most potent source of power, and persuasion the least potent; in-between is authority. At both the UN and the AU, the president’s team decided to take the persuasion route under the direction of people skilled in the mechanics of law who should rather have been schooled in the mechanics of power.

Appeals to goodwill and authority, the premier wellsprings of power, should have formed the bedrock of their strategy. The enkindling of goodwill in the breasts of men is the handiwork of love, sympathy, and the coincidence of interests. Already, sympathy with Kenya on the tragedy of a terrorist attack on Nairobi’s Westgate Mall had inspired the ICC to defer Kenyatta’s trial to February 2014. Kenyatta’s team only had to recognize the operation of this goodwill and build on the momentum already attained. In particular, at the UN they had to highlight the coincidence of interests between Kenyatta, the Security Council, and the ICC as regards the delivery of justice to victims of the killings; then they had to call on traditional friends of Kenya for shows of solidarity; then they had to excite sympathy for future victims of a new civil strife that might follow a Kenyatta arrest; and, lastly, they had to draw attention to the superiority of the Kenya government’s authority over the ICC’s authority in so far as bringing healing to the politically-torn communities in areas visited by the massacres is concerned.

Instead we had a thick stream of petty lamentations: lamentations about Africans being victims of a domineering court; lamentations about the absence of a provision for immunity of African leaders; lamentations about meddlesome white judges straying into black African politics; and lamentations about a neocolonial conspiracy to oust the jurisdiction of African courts in certain cases so as to expose patriotic African leaders to the crushing blows of an imperial iron fist cloaked in a judge’s wig.



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