The victory of Uhuru Kenyatta, indicted for crimes against humanity*, in Kenya's presidential election poses a familiar dilemma for the West: how to weigh support for human rights against economic and security interests in a part of the world marked by terrorist threats, simmering regional conflicts, and increasing economic and trade opportunities. But Kenyatta's victory also raises a potentially thornier conundrum: whether actively opposing his assumption of power will indeed advance the cause of international justice at all.
Last week's Kenyan elections were a messy affair. There are allegations of fraud in the electoral register, and the country's electronic counting system crashed, leading Raila Odinga, the runner-up, to challenge the result. But the current outcome seems likely to hold. If it does, Kenyatta -- the son of legendary Kenyan President Jomo Kenyatta -- will soon begin a five-year term.
The contentious outcome echoes the country's last vote, in 2007, when Odinga lost narrowly to a different opponent. Back then, Odinga also disputed the result and -- saying he did not trust the courts -- urged his followers to take to the streets. Two months of unrest ensued, including boycotts, ethnic clashes, and more than 1,000 deaths. During this upheaval, according to an indictment issued by the International Criminal Court (ICC), Kenyatta and others engaged in the wholesale displacement, torture, persecution, and ever murder of ordinary Kenyans. Kenyatta stands accused of directing leaders of a Kenyan criminal syndicate to attack perceived opposition supporters. He has vehemently denied committing any crime, vowing to cooperate with the court and mount a robust defense.
The indictment was a landmark for the ICC. Most of the court's cases had targeted abuses by militias during armed conflicts. This time, in what observers called a warning shot for African and other global leaders accustomed to using violence to defend their rule, the court went after top national leaders who had used brutal repression to maintain political power. The case was also noteworthy because it was undertaken by the ICC prosecutor himself without a request from either the U.N. Security Council or the Kenyan government. After the indictment was issued, the Kenyan parliament passed by a wide margin a non-binding protest motion calling to withdraw the country from participation in the ICC.
Fast-forward five years to this year's contested Kenyan election. This time the country's constitution had been strengthened with a bill of rights; the courts have been cleaned up. Those improvements seem to have helped avert violence thus far. But while lives may be spared this time around, the stakes in this election are still high for Kenya, Western governments, and the ICC. The United States and Kenya have cooperated in fighting terrorism ever since the 1998 bombing of the U.S. Embassy in Nairobi. Under the Obama administration, economic and security cooperation and the sharing of intelligence have intensified, particularly on Somalia, home to the al Qaeda-linked militant group al-Shabab. Nairobi is a prime media hub for the continent and is the locus for the United Nations' vital peacekeeping and humanitarian programs throughout Africa. The United States and Europe are aware that if Kenya pivots away from them, it will likely be in the direction of China, which is already heavily invested in Kenyan oil, mining, transportation, and infrastructure projects.
Despite, or perhaps because of, their close relationships with Nairobi, the United States and Europe have not hid their distaste for a Kenyatta victory. U.S. Assistant Secretary of State Johnnie Carson warned Kenyans before the vote that "decisions have consequences," and Britain has announced that its diplomats would have only "essential contacts" with Kenyatta. The impetus to treat Kenyatta as a pariah is motivated not just by recoil at his alleged actions, but by the practical notion that to deter them, the international community must make crimes against humanity out of bounds not just legally but also politically, diplomatically, and socially. If the ICC hopes to avert abuses and isolate those who commit crimes against humanity, it must ensure that indicted leaders can't simply go on with business as usual. This is why there has been so much pressure on governments to shun and isolate Sudanese President Omar al-Bashir, who has been indicted and subject to an arrest warrant by the ICC for five counts of crimes against humanity.