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The African Union this weekend condemned the International Criminal Court as unfairly targeting Africans and is now asking for a delay in the trial of Kenya's President Uhuru Kenyatta. African leaders say they support the Kenyan president, boycotting his trial, if it goes on as scheduled next month. President Kenyatta and his deputy are accused of instigating tribal violence after the 2007 election, violence that left more than 1,000 dead.

As NPR's Gregory Warner reports, this case might never have reached the court in The Hague if not for one Kenyan judge and a secret envelope.

GREGORY WARNER, BYLINE: There's a saying in Kenya: If you want to sweep a problem under the rug, set up a presidential commission of inquiry to look into the matter.

MAINA KIAI: Commissions end up being toothless bulldogs. They make a lot of noise. Some that have got good reports, they go nowhere.

WARNER: Maina Kiai is a Kenya human rights activist. He say in May of 2008, a Commission of Inquiry was formed to name the elite politicians who allegedly financed and planned the tribal violence that followed the 2007 election. and Kiai expected, just as with commissions past, the names would be published. Those names would be some of the country's most powerful people.

And thus, no punishment would result. Kenya's culture of impunity would continue. But the chairman of that commission, Justice Philip Waki, made an unexpected move. When he published his report, he sealed the accused names in an envelope.

KIAI: The envelope, which has taken over everybody's life.

WARNER: To keep justice blind, Judge Waki kept the names in the dark and he ordered that envelope not to be opened until Kenyan politicians formed a special court to try those people, or...

KIAI: If the government of Kenya does not form a special tribunal, please hand over this envelope and the evidence that we've collected to the ICC...

WARNER: To try them in The Hague. But just as Judge Waki predicted, politics could be kept out of the justice process only as long as those names were kept secret.

(SOUNDBITE FROM NEWS PROGRAM)

UNIDENTIFIED MAN #1: And coming up in the next 60 minutes, the International Criminal Court has named names in Kenya, accusing them of being responsible...

WARNER: When the names were made public, two things happened. First, the two most powerful people on the list, Uhuru Kenyatta and William Ruto, teamed up to run in the same presidential ticket. These were the leaders of two tribes that were murdering each other after the last election, now waving from the windows of the same tour bus.

UNIDENTIFIED MAN #2: (Speaking foreign language)

WARNER: But even more surprising was they won, and not despite the ICC charges, but seemingly spinning them to their advantage. In campaign stops, they hit the message that the ICC was an instrument of the West to sideline not just the two of them, but both of their tribes, the two biggest tribes in Kenya. To some this sounded like a conspiracy theory, but Maina Kiai says in Kenyan tribal politics, it made sense.

KIAI: You see, in this country the presidency has historically been everything. You capture the presidency; your people, your constituents get roads, they get water, they get electricity, they get good schools, they get health care.

WARNER: Kenyan voters from Ruto's and Kenyatta's tribes could be convinced that if their leaders were sent to jail, they would suffer.

KIAI: Yes, because they say that if they pay for their crimes, it means we won't have access to the little crumbs we get from them in the patronage system. Absolutely.

WARNER: And this, he says, is the biggest challenge of the international court. It was created to hold powerful people accountable in countries that don't have strong systems of justice. But in those countries that don't have strong institutions, where patronage prevails, can the ICC hold an individual leader accountable and not seem to punish all the people under him?

JOHN GITHONGO: The ICC is a very blunt instrument.

WARNER: John Githongo is a prominent activist and former whistle blower on government corruption.

GITHONGO: It doesn't understand the nuances of Kenyan tribal alliances and politics. It takes evidence and says, OK, we can build a case against these six guys.

WARNER: The six guys that the ICC chose to prosecute all came from just two tribes, Ruto's Kalenjin and Kenyatta's Kikuyu, though, Kenyans widely believe that other names, from other tribes, were in Judge Waki's still secret envelope. In seeking to focus its case on just these six names, Githongo says the ICC exposed itself to the charge of tribal favoritism.

MWALIMU MATI: Some call it justice versus politics and politics is beginning to chip away at ICC support.

WARNER: Mwalimu Mati runs Mars Group Kenya, a government accountability watchdog. He says the terrorist attack on Westgate Mall three weeks ago may have chipped away support still further, because it highlighted for the first time, Kenyatta's role as commander-in-chief.

MATI: That's different from the head of your government. As head of government, his election is disputed by half the country. People say that they don't believe that he won the first round. But as commander-in-chief, you do need somebody sitting in that seat. Now the question: do you want your commander-in-chief to go to Holland to attend a trial? Or put another way: it's justice for the victims or security for me? And that's what's happening to people.

WARNER: And this weekend, the political backlash against the ICC went continent-wide. African leaders, en mass, asked the United Nations Security Council to suspend the case. The head of the African Union even said that the ICC should not be allowed to bring charges against any acting head of state.

And the AU instructed President Kenyatta to boycott his own trial at The Hague if the U.N. doesn't answer its request to delay the trial at least a year. A no-show by the president could technically trigger an arrest warrant. But Western nations might be reluctant to antagonize a key partner in the war on terror. Gregory Warner, NPR News, Nairobi.

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