In the crimes against humanity cases over political violence in 2007-08, the ICC withdrew charges against the president in 2015 and dropped the case against his deputy.
There was a look of satisfaction in President Uhuru Kenyatta’s eyes as he sat down to talk to The Africa Report in Paris that could be attributed to more than three days of intense hospitality on a state visit to the French capital. “We have been vindicated,” was Kenyatta’s opening line.
On the previous day, 5 April, a panel of three judges at the International Criminal Court had announced that it was dropping its case against William Ruto, Kenyatta’s deputy, and Joshua arap Sang, a radio journalist. The court’s announcement was clearly a relief to Kenyatta, who faces a tough election next year.
A life in politics
26 october 1961 Born in Nairobi
2003 MP for Gatundu South
2009 Finance minister in Kibaki’s government
9 April 2013 President of Kenya
5 December 2014 ICC prosecutors withdrew charges of crimes against humanity
Keeping Ruto, the current political champion of the Kalenjin in the Rift Valley, on side is critical for the ruling coalition’s chances ahead of the polls. Ruto and Sang had been charged with crimes against humanity linked to the post-election violence in Kenya in 2007-08, in which 1,200 people were killed and another 600,000 were attacked and chased from their homes.
A year and a half ago, Fatou Bensouda, the court’s prosecutor, announced she was withdrawing charges of crimes against humanity against Kenyatta, who was one of the other four indicted by the court for planning the election violence.
The judges’ April decision followed seven years of bitter claims and counter-claims between the court’s prosecutors and the Kenyan government. Arguing that Kenya, and Africa more widely, was being singled out by the court, Kenyatta’s government launched an international campaign against the ICC, winning support from South Africa and other members of the African Union (AU).
Chile Eboe-Osuji, the Nigerian chief judge at the ICC, lambasted the Kenyan government, saying said that Ruto’s case had been a mistrial because of a “troubling incidence of witness interference and intolerable political meddling”. He also rejected the AU’s calls for heads of state to have immunity from prosecution as a means “to protect the ruling class”.
[This] was a politically instigated case, as opposed to a case that was legally instituted
Neither side in this prolonged legal fight can regard the matter as closed. Serious failures at the court have emerged: in the standards of its investigations and the weakness of its witness protection measures. Equally, the Kenya case showed the importance of the political climate – Eboe-Osuji noted “how difficult conviction is against high-level figures.”
The Africa Report : Are you happy that the ICC decided that there is not enough evidence to prosecute your deputy, William Ruto?
Uhuru Kenyatta : Yes, I am. I think it vindicates the position that we have held for the last seven years: the fact that we were innocent. But more than that, I think it proves Kenya’s own standing in terms of respect for international laws and the rule of law. We have not run away from justice. The court, through its own processes, has finally come to the conclusion – that we have always maintained – that we had no case to answer because we never committed any crime.
The judges have accused the Kenyan government of political meddling. What is your reaction to that?
This is the argument they keep using. How do you say political interference when we as a country have cooperated with them from the very first day that they read out the names. They’ve had their offices in Nairobi; they’ve never been interfered with; their investigators have been there. The court-appointed lawyers for the victims were there operating freely – nobody has ever harassed them – moving in and out of the country wherever they wanted to go without a problem. What greater cooperation would you want? Anything they ever requested for that was legally allowed through our own legal system, it was always provided to them.
Do you think the witnesses were properly protected?
I believe so. All the witnesses they wanted. A lot of the witnesses, by the way, were based right here in Europe. The majority were.
But their families weren’t in Europe, of course.
You must always remember that even those who changed their statements, the key point they all put forward was that they were induced in the beginning, which has always been our argument. That it was a politically instigated case, as opposed to a case that was legally instituted. And what happened is a lot of those witnesses eventually came out. They even pointed out who coached them and who trained them and what to say. Because at that stage, the two opposing sides – President Mwai Kibaki’s group and Raila Odinga’s group – were trying to accuse each other of starting the violence. So they were creating this thing, but more as a political contest as opposed to a legal process.
So they can’t turn around and say they were intimidated. All that happened was that people came out and said: “The truth of the matter is we were told to say such and such, and we want to now come out clearly.” Like the one witness who said: “I’ve never been to Ruto’s house, but I was told to say so.”
You have said that the ICC failed the victims of the election violence. Are they now going to get justice from Kenya’s judicial system? How many people have been prosecuted for this violence within Kenya so far?
The record is there. I don’t have the exact numbers on me, but for those who committed crimes – be it arson, be it murder – we have a very clear record of individuals who participated, who were taken before a judicial process and the action taken against them and court rulings and judgements made. And people served time, be it for arson, be it for theft, be it for murder.
Our position always has been reform the ICC if you want our continued participation
What about the responsibility of the political leaders?
We’ve been arguing that a lot of what happened was spontaneous action, and people taking advantage of a chaotic situation. People were taking action against each other because there was no leadership to tell people “stop it.” It was only when it started to really escalate that the political leaders immediately entered the fray and started to urge their supporters to calm down. That’s when it ended.
What about compensation for the victims? When is that going to be resolved?
My government, especially, has been through a process of relocating and helping individuals resettle back to their places, re- building houses for people, resettling the IDB [internally displaced people] and there is not a single internally displaced person who was living in a camp that has not been resettled in one way or an- other. The problem that we are now facing is, there were many people who were also IDB as a result of previous riots and we have said even they are entitled to the same [treatment].
So is Kenya still saying Africa must leave the ICC?
Rather than [the ICC] being a court that will seek justice and end impunity, it was being manipulated by certain elements. That went against the very essence of the Rome Statute. That is why you see many African countries saying: “This looks like a court that is targeting Africans that is being used by other forces to influence Africans.”
But the court has worked for you. The judges have considered the evidence and dropped the prosecution.
Seven years down the road and the reason being – and this was the big reason for anger – that it is clear, you can’t prosecute somebody on the basis of a newspaper article. And this was our argument, you are not basing your case on any material evidence. You’re basing it on circumstantial evidence, hearsay.
So you are no longer saying Africa leave the ICC but the ICC must be reformed?
Our position has always been reform the ICC if you want our continued participation. We have put the same case before the Security Council – that this organisation requires reform. And if we’re not going to get the kind of reforms that we need, we are going to pull out. Let us form our own court that is going to actually handle these issues because it looks like those who pay the court are the ones who tell the court what to do. That wasn’t the basis of setting up the court.
You’re facing an election next year. Are you worried that the lessons of the violence may be forgotten?
I don’t think Kenyans have forgotten, and that is why in 2010 we gave ourselves a new constitution to deal with the fundamentals. William and I have made it very clear that we must do everything to ensure that Kenya never goes back [to violence]. We cannot continue to play confrontational politics. Let our politics be issue-based. We, on our side of the coalition, are pushing that particular agenda.
Are your opponents pushing it as well?
The opponents may not be pushing it, but what we are saying is that we will do everything to ensure that Kenya does not repeat those mistakes. I believe that that is ultimately the wish of the majority. You cannot continue to use spiteful words either against communities or against religions. We now have institutions created by a constitution that we mutually agreed upon. Let the institutions do their work. You campaign on the basis of your ideology, on your vision, on your policies and programmes that you plan. Let the Kenyan people be free to decide for themselves who is best suited to lead the country.
And who do you think they will decide on?
I think they will decide on me, hopefully. And if they don’t, we will go home peacefully.
Back to your farm?