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Supporters of Kenyan presidential candidate Uhuru Kenyatta celebrate outside his home after hearing news that he won the presidential election, near Nairobi, Kenya, March 9, 2013. (PETE MULLER/NYT)
Supporters of Kenyan presidential candidate Uhuru Kenyatta celebrate outside his home after hearing news that he won the presidential election, near Nairobi, Kenya, March 9, 2013. (PETE MULLER/NYT)

vote in kenya

In Kenya, democracy triumphs, but justice fails Add to ...

After a narrow victory by a criminally indicted candidate in a disputed election, Kenya’s biggest achievement was what happened in the aftermath on Sunday: nothing at all.

Kenya remained impressively calm and peaceful after Uhuru Kenyatta was declared the presidential election winner. His opponents stayed off the streets – even though their leader called it a tainted and illegal result. It was a stark contrast to the violence of its last election, in 2007, when at least 1,500 people were killed and more than 600,000 had to flee their homes.

The latest election in Kenya, with its enthusiastic 86-per-cent voter turnout and its quiet aftermath, is a major victory for African democracy. But it’s also a significant defeat for African justice, diminishing the hopes of ending the impunity that often protects its most powerful politicians.

Mr. Kenyatta, one of Africa’s wealthiest men, was indicted by the International Criminal Court for crimes against humanity for financing death squads after the last election. He has promised to respect the court’s jurisdiction, but he also insists he won’t travel regularly to The Hague for court appearances. His election victory has given him a much stronger hand for his expected resistance to the court.

His victory is a heavy blow to the international court, already criticized by many Africans because, so far, it has prosecuted only African leaders. When an indicted criminal can defy the court and persuade a majority of voters to support him, it exposes the court’s lack of credibility in the eyes of ordinary Africans.

Mr. Kenyatta was able to use the indictment to portray himself as the victim of a Western legal conspiracy. The court’s attempt to prosecute him may have actually worked in his favour, gaining him a sympathy vote from Kenyans who see the court as foreign interference. Polls showed a dramatic decline in Kenyan support for the international court after Mr. Kenyatta and others campaigned against it.

But it’s crucial to remember that Kenya refused to set up its own domestic court to prosecute the orchestrators of the bloodbath that followed the last election. Even after the ringleaders were identified in reports by Kenyan human-rights organizations, none were brought to trial. Even the low-level perpetrators were largely allowed to walk free.

While Kenya’s public prosecutor opened files on 5,000 suspected perpetrators of violence after the last election, only 14 people have been convicted for postelection crimes, according to a recent report by Human Rights Watch.

Kenya’s parliament repeatedly debated a possible tribunal to prosecute the killers and rapists who attacked thousands of people after the last election, yet failed to give its approval to any of the proposals. Only then did the international court step in.

With domestic justice largely foreclosed, and with the international court losing legitimacy and unable to prosecute more than a small handful of suspects, it seems likely that Africa’s most powerful politicians will continue to enjoy impunity from prosecution in most cases.

One other sitting president, Omar al-Bashir, of Sudan, has been indicted by the international court for crimes against humanity, but he too has avoided prosecution – with the support of most African governments.

Before the Kenyan election, Western governments threatened to reduce their diplomatic contacts with Kenya if it elected an indicted criminal. A senior U.S. official warned of “consequences” to the country if Mr. Kenyatta was elected. Now the West is in a dilemma. It supports the international court, but it also needs Kenya for strategic reasons, as a key economic power in East Africa and as a bulwark against Islamist militancy in neighbouring Somalia.

Mr. Kenyatta issued a warning to the West after his first-round victory was made official on Saturday. He said the international community must “respect the sovereignty and the democratic will of the people of Kenya” – a clear signal that he will not bow to Western pressure over his indictment in The Hague.

In their immediate reaction to the election, Western governments praised the people of Kenya, but made no mention of Mr. Kenyatta and his indictment. In a statement similar to those of other Western diplomats in Kenya, Canadian High Commissioner David Angell said: “Canada congratulates Kenyans on exercising their democratic right and on conducting peacefully the first elections under a new constitution. Millions of Kenyans stood calmly and patiently in line for several hours in order to exercise their right to vote. …”

Official results showed Mr. Kenyatta with 50.07 per cent of the 12.3 million votes cast – just barely over the threshold needed to avoid a second-round runoff.

His main opponent, outgoing Prime Minister Raila Odinga, got 43 per cent. He immediately complained of “massive tampering … and rampant illegality.” But he also told his supporters to remain peaceful. It was a call that they heeded, giving a huge boost to Kenyan democracy.

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