The court alleges Mr. Kenyatta and his deputy president, William Ruto, incited gang violence that left more than 1,000 people dead following his predecessor's disputed election in 2007. Both men deny the charges. How the ICC handles the case will test its credibility amid a clash of political and diplomatic interests—a conundrum thrown into the spotlight on Monday as African Union leaders called for the ICC to turn over its cases against Messrs. Kenyatta and Ruto to local courts. Court responded that the AU's call wouldn't affect the court's procedures.
Having such a high-profile defendant in court puts high political stakes on what is really a new and problematic judicial system. A significant delay in Mr. Kenyatta's trial or a decision to drop the charges against him would risk undermining the court's credibility in Kenya and among other member states.
It would mean "the court is just like any ordinary court in our little states, not an international court that can handle the kinds of crimes it's supposed to without political interference," said Njeri Kabeberi, executive director of Kenya's Centre for Multiparty Democracy, which encouraged the court to investigate the 2007 postelection violence.
The ICC, based in The Hague, The Netherlands, was set up in 2002 by a treaty called the Rome Statute, which was ratified by more than 120 nations—including Kenya—and aims to protect ordinary people from injustice and crimes by the powerful. Following ad hoc tribunals for the former Yugoslavia, Rwanda and Sierra Leone, supporting countries wanted to create a permanent court that could prosecute crimes more effectively and act as a deterrent.
The only person so far tried and convicted by the court is Thomas Lubanga Dyilo, another rebel leader in Congo. He remains at the ICC's detention center in The Hague, while appealing his 2012 conviction of conscripting child soldiers. The trial of Congolese rebel leader Mathieu Ngudjolo Chui led to an acquittal that is being appealed by prosecutors.
The ICC has drawn fire from some African leaders for its nearly exclusive focus on that continent—though African nations, many of which support the court, have requested some of that work. Noting that all eight of the ICC's formal investigations have been in Africa, Ethiopia's Prime Minister Hailemariam Desalegn on Monday said the court had compromised its legitimacy, charging "the process has degenerated into some kind of race hunting."
Mr. Kenyatta, a 51-year-old tycoon who holds vast tracts of land and stakes in major Kenyan media companies and banks, has agreed to cooperate with the court, but asked that the charges against him be thrown out. Some legal scholars and human-rights activists predict the high political stakes in the Kenyatta case will mean a prolonged delay. Among other challenges, the difficulty of dealing with Kenyan authorities who might be less than amenable to pursuing the Kenyan cases could make it tough to move forward.
In Kenya, the ICC opened its investigation after a national commission reviewing the 2007 violence passed on the names of six potential suspects to ICC prosecutors. Four people, including Messrs. Kenyatta and Ruto, were eventually charged with crimes against humanity for inciting bullying, rape and murder among rival tribes after the election.
Already, in March, the ICC's case on these same charges against Kenya's former Cabinet Secretary Francis Muthaura fell apart after a vital witness said parts of his testimony weren't true. Chief prosecutor Fatou Bensouda said Kenya's government hadn't cooperated sufficiently in Mr. Muthaura's case by not giving access to potentially important witnesses, a charge the government rejected in a recent court filing.
Earlier this month the planned Tuesday start of Mr. Ruto's trial was postponed to allow the parties to address a prosecution request to add five new witnesses. Both Messrs. Kenyatta and Ruto have asked to be tried in Kenya or Tanzania, or via video link, so they can run the country rather than appear at hearings in The Hague. Mr. Kenyatta has also requested that the charges against him be dropped entirely. The ICC would weigh those requests before Mr. Kenyatta's trial begins, a delay is possible if the judges grant any of them.
The Kenyan case comes as the court wrangles with several other African cases. All eight of the ICC's formal investigations, in which ICC judges have established that the court has jurisdiction, have been in Africa. The court is also investigating whether alleged crimes in Iraq, Honduras and Georgia fulfill the criteria for the court to claim jurisdiction. Disagreement among United Nations Security Council members, meanwhile, has prevented the council from requesting an ICC investigation of alleged crimes in Syria's civil war.
The court says it can only pursue cases within its jurisdiction and where there is sufficient evidence, and only in countries that have ratified the Rome Statute, as Kenya did in 1999. To act in a state that hasn't signed up, the court needs a request either from the government of that country, or from the U.N. Security Council.
By Guylain Gustave Moke
African Affairs Expert
Photo-Credit: AP-Courtroom at the ICC in the Hague