When prosecutors at the International Criminal Court declared in late 2009 that they would pursue those most responsible for the violence that swept Kenya following the 2007 election, many people rejoiced: Kenyans, long accustomed to seeing their leaders get away with almost anything, staked their hopes for a new accountability on the I.C.C. Unfortunately, those high hopes have been dashed. In a curious irony, the Hague-based court has inadvertently stoked tensions in the Rift Valley, the ethnically divided tinderbox that saw the worst fighting in that contentious election period.
On Dec. 5, I.C.C. prosecutors announced they would drop their case against President Uhuru Kenyatta, admitting that they had no reasonable prospect of securing a conviction on charges of crimes against humanity during the 2007 bloodletting. That decision means that four of the six Kenyans the prosecution identified as bearing the greatest responsibility for inciting riots that led to the deaths of more than 1,100 people and the displacement of 600,000 others in the weeks following the election never went to trial. Apart from the Kenyatta case, judges earlier threw out charges against a former police commissioner, a politician from the Rift Valley, and a former head of public service.
When they intervened in Kenya, I.C.C. prosecutors had been careful to indict six suspects, three each from the two major political camps vying for power in December 2007. The contest between the incumbent president, Mwai Kibaki, a member of the Kikuyu ethnic group, and his chief rival, Raila Odinga, a Luo, flared into weeks of violence after Odinga supporters accused Mr. Kibaki of vote rigging. Some of Mr. Odinga’s strongest support came from the Kalenjin community, which has long accused Kikuyu peasants of displacing them from the farms they have occupied for decades in the fertile Rift Valley.
With the collapse of the case against Mr. Kenyatta, (like former President Kibaki a member of the Kikuyu community), the two remaining cases in The Hague involve only members of the Kalenjin ethnic group — William Ruto, Mr. Kenyatta’s deputy president, and a radio journalist, Joshua Sang, both accused of inciting mass violence.
Though Mr. Ruto and Mr. Kenyatta were on opposing sides in 2007, the two men subsequently joined forces to form the Jubilee Alliance and went on to win the 2013 elections under the country’s revised Constitution. But their coalition, designed to soothe ethnic tensions and promote national unity, could fracture if the international court is perceived as pursuing selective justice.
Mr. Kenyatta, whose case was seen as a crucial test of the I.C.C.’s legitimacy, has urged prosecutors to drop the charges against Mr. Ruto, who is also accused of stoking violence. So has the Rift Valley Council of Elders, which warned in a letter to the I.C.C. that pursuing the case against the deputy president “may cause conflict in the country if it was not withdrawn.”
I.C.C. prosecutors have blamed the collapse of attempts to prosecute Mr. Kenyatta on a pattern of witness intimidation and bribery, and the refusal of the Kenyan government to comply with requests for information. They have made the same complaints in attempting to prosecute Mr. Ruto.
In many ways, this suggests an effort by prosecutors to cover up for their own failures. From an early stage, prominent officials, such as the former U.S. assistant secretary of state for African affairs, Jendayi Frazer, had warned that the Kenyatta case was a “weak one based on hearsay.” And at least one judge at The Hague, Christine Van den Wyngaert, was severely critical of the prosecutions’ efforts.
The Kenyan cases, perhaps the most high-profile matter the court has taken on since its inception just over a decade ago, highlights the need for institutional reforms. The court needs independent oversight, and the means by which its judges are appointed needs to be revised to emphasize merit over political considerations. But what the collapse of all but two of its cases means for peace in Kenya is a more urgent question, particularly in the Rift Valley.
The fertile highlands have over time attracted masses of migrants from other parts of the country, primarily members of the Kikuyu community. The Kalenjin people claim that the Kikuyu have benefited from political patronage to appropriate what they see as their ancestral land. Kikuyus counter that they bought the land legitimately from willing sellers.
It was no surprise that President Kenyatta and Deputy President Ruto both called for calm after the I.C.C. announcement. But a more telling pronouncement came from the chairman of a Kalenjin council of elders, Paul Leleito, who called upon Kikuyu supporters of Mr. Kenyatta “to join others in praying and waiting until the other cases end.”
It’s easy to see why the I.C.C. was initially embraced by many Kenyans — and heavily backed by the Western powers that hold considerable influence in Nairobi — as a way to tackle the political impunity of Kenya’s leadership. But the collapse of prosecution efforts shows the limitations of expecting justice to come from abroad.
Kenyans must learn that they need to take greater responsibility for their own affairs by pursuing demands for more government accountability within their own institutions. The problems caused by ethnic violence, as scholars like Mahmood Mamdani have cautioned, are best resolved domestically, not in foreign courts.
Kenyans need to tackle the underlying injustices that fuel communal violence. We must refuse to allow our leaders to exploit citizens’ legitimate grievances for political ends. It is no coincidence that the ethnic violence in the Rift Valley in 1992, 1997 and 2007 all happened during presidential election years.
To halt this deadly cycle, those inciting the fighting must be punished. Hopefully, the lesson Kenyans will draw from their disillusionment with the international court is that accountability starts at home; it cannot be easily outsourced.
Murithi Mutiga is an editor at the Nation Media Group in Kenya.