On Sept. 5, the Hague-based International Criminal Court (ICC) announced it was “indefinitely” halting its prosecution of Kenyan President Uhuru Kenyatta, who is on trial for allegedly directing the ethnic violence that followed the country’s 2007 elections. The presiding ICC prosecutor, Fatou Bensouda, claimed that amid many delays since the start of the trial, the evidence required to bring a case against Kenyatta had still not materialized. But other factors may be at play: The lapsed prosecution, in fact, appears to reflect the limited authority of the ICC as well as unease over global governance jurisdiction in sub-Saharan Africa.
Key witnesses have withdrawn testimony since Bensouda first charged Kenyatta with crimes against humanity in 2011, two years before Kenyatta’s election as president. The case was also held back by the refusal of the Kenyan government to provide requested phone and bank records. Bensouda and the ICC have alleged that Kenyan officials intimidated witnesses. But that should have been expected, especially after Kenyatta assumed the presidency in 2013. The ICC can hardly expect to gather evidence in a sovereign country in order to prosecute and potentially remove its sitting president without interference.
In addition to the ICC’s limited prosecution toolkit, in Kenyatta’s case it was surely keen to avoid another long-running embarrassment in which an active head of state operated in disregard of the court. Sudanese President Omar al-Bashir, who was indicted in 2009, had his first ICC arrest warrant issued that same year and his second arrest warrant issued in 2010—and yet he still leads Sudan to this day. The ICC’s inability to enforce its ruling on a sitting head of state in a sovereign country is understandable. But Bashir’s visits to China, the Middle East and much of Africa without consequence places the court in the awkward position of being repeatedly reminded of its limited authority.