ICC has fallen from high ideals of global justice, accountability

“Innocent until proven guilty” is a defining principle of all respected legal systems, including that of the United States. Presumption of innocence allows an individual to run, win and hold public office until they are found to be anything other than innocent.

The High Court of Kenya upheld exactly this principle with its ruling on February 15 clearing the way for Uhuru Kenyatta to run for President in Kenya’s March 4 election.

It ruled that Kenyatta’s presidential bid could go forward because the High Court has no jurisdiction to determine qualifications of a person who has been duly nominated to run for president; the Rome Statue has no provision for the International Criminal Court (ICC) to bar candidates; and importantly under Article 50 of the Kenyan Constitution, there is a presumption of innocence until the contrary is proved which falls under the category of fundamental rights and freedoms.

Yet on the eve of the election, several Western countries were seen as using the ICC indictment to pre-emptively “try and convict” Uhuru Kenyatta in the court of public opinion, presumably to tank his electoral prospects.

The US assistant secretary’s statement that “choices have consequences” went well beyond President Obama’s welcomed video message to Kenyans released only days before calling for a free, fair and peaceful election. In effect, the warning contradicted President Obama’s appropriate statement that “the choice of who will lead Kenya is up to the Kenyan people. The United States does not endorse any candidate for office.”

Let me be equally clear: I have no preference for whom Kenyans elected as their next president. My concern is with the credibility and effectiveness of US policy in Africa. I remain troubled by the not so subtle attempt to use the ICC politically to essentially threaten Kenyans about whom to vote for in their presidential elections.

To base US foreign policy on the ICC is especially problematic since the US is not a signatory to the Rome Statute which established the International Criminal Court.

Moreover, the ICC’s very legitimacy has been fundamentally compromised by its first Prosecutor, Luis Moreno Ocampo, only finding cases of atrocities and crimes against humanity in Africa.

At the same time, the West’s often quiet role but strong political influence on who the court targets for indictment tarnishes the court as a tool of geopolitical influence, not balanced global justice.

A review of ICC cases also reveals that some African officials have instrumentally cooperated with the Prosecutor to indict their political opponents, further diminishing the impartiality of the Court.

Add to this the length of trials, with only one conviction in 10 years, and the treatment of those indicted as guilty before they can prove their innocence, and the ICC begins to look like an organisation that is behaving with impunity in international affairs, rather than a court that is respectful of victims or the principle of presumption of innocence.

The ICC indeed has fallen far from the high ideals of global justice and accountability that inspired its creation.

The Kenyan ICC experience is instructive. The post-election violence in 2007-2008 led to an estimated 1,100 deaths and more than 600,000 displaced. I witnessed the incredible suffering of the victims across the country when I came to Kenya in January 2008 to urge President Mwai Kibaki and then ODM challenger Raila Odinga to work together to end the violence.

It is right and necessary that those responsible for the violence are held accountable. Yet, the ICC, an organisation founded to bring those accused of the most heinous of crimes to account, was initially used (unsuccessfully) as political leverage to get Kenya’s Parliament to set up a domestic special tribunal to address the post-election violence.

When the National Assembly failed to act, the ICC Prosecutor in 2010 brought charges against six high profile Kenyans, but victims of post-election violence are no closer to realising justice. Instead, the ICC was politicised when used to warn Kenyans about whom to vote for in their 2013 elections.

Some Kenyans welcome ICC indictments against high level officials as a way to end a culture of impunity, but condemning a person based on their position, rather than a specific and proven case, is vigilantism not justice.

The case alleged against Uhuru Kenyatta, for example, is fast crumbling with the new Prosecutor Fatou Bensouda withdrawing charges against his co-defendant Francis Muthaura.

It is therefore especially reckless for the United States to tie its foreign policy towards Kenya on an ICC case against the President-elect that is unproven and based on hearsay, with the alleged sole eyewitness, on whom the case rested, now dropped by the Prosecutor for unreliability.

The US would be more effective engaging directly with Kenyatta than creating unnecessary and unsustainable diplomatic distance, especially given the new geo-strategic realities that come with growing BRIC, and particularly Chinese, influence across Africa.

What happens in Kenya undoubtedly matters to the United States. The two countries have always enjoyed strong relations and shared interests. Kenya is the economic and political powerhouse of the East African region. It is currently fighting a war in Somalia against Al-Shabaab, the Al-Qaeda affiliated jihadist group.

Most international organisations and businesses operating in the region are located in Nairobi. The effect of the post-2007 election violence taught us all how important Kenya’s stability is to the economic prosperity of all its neighbours, especially landlocked Uganda, Rwanda, Burundi and South Sudan. It is critical that Kenya is supported and not destabilised at this time.

The best interest of the West is served by respecting the will of the Kenyan electorate and its new institutions.

Similarly, if Kenya’s Supreme Court rules against the IEBC, will Prime Minister Odinga distance himself from the US during a run off to guard against any perception that he is sponsored by the West?

I was inspired by Kenya’s presidential debates, and the strong engagement of Kenyan civil society to uphold their new Constitution, and safeguard the freedom of their vote conducted in a peaceful manner. In the upcoming election challenge phase, Kenya’s new institutions must be respected and allowed to operate autonomously.

Jendayi Frazer, former US Assistant Secretary of State for African Affairs (2005-2009), is a distinguished service professor at Carnegie Mellon University, and adjunct senior fellow for Africa studies at the Council on Foreign Relations.