The International Criminal Court is arguably engaged in the most important confrontation in its history, and it is losing.
Today, the International Criminal Court (ICC) was scheduled to begin proceedings against Kenya's President Uhuru Kenyatta in its first ever trial of a sitting president. But in the case's third postponement, the hearing has been pushed back to 5 February, 2014.
The ICC's Chief Prosecutor, Fatou Bensouda, moved the hearing in order to allow the prosecution and defence, who had both separately asked for a delay, more time to respond to new evidence and recent developments in the trial.
Bensouda however dismissed the idea that Kenyatta's need to attend to presidential duties - which was one of the factors put forward by the defendant's lawyers in asking for a delay - could be a legitimate reason to postpone, arguing that Kenyatta knew full well when he ran for office that he would have to be present in court.
Kenyatta along with William Ruto, the current Deputy President, and Joshua arap Sang, a former radio presenter, are all standing trial for their alleged role in Kenya's post-election violence of 2007/2008.
"Fortunate misfortune"
During Kenyatta and Ruto's joint election campaign in the run up to the 2013 elections, Kenyatta stated adamantly that it was their "intention to follow through [with the ICC cases] and ensure that we clear our names."
But throughout the campaign, the Kenyatta machinery gradually and systematically attempted to manipulate the narrative surrounding the case. Whenever the ICC question was raised during the February presidential debates, for example, it was always discussed in terms of the practicalities of having a president and a deputy president running the country whilst simultaneously standing trial. The public's attention was thus consistently reoriented into addressing peripheral issues rather than the main issue at hand - namely whether Kenyatta and Ruto are guilty.
Indeed, thanks to some canny framing of the issue, the ICC indictment proved to be what Bryan Kahumbura, a Horn of Africa Analyst at the International Crisis Group (ICG), has termed a "fortunate misfortune." Although the two now face the misfortune of actually having the deal with the ICC case, the indictments were fortunate in that they bound Kenyatta and Ruto together, bolstered their electoral campaign, and enabled them to successfully play the victim card. What would have spelled the end of most politicians' careers, the UhuRuto campaign managed to turn into an electoral asset by painting it as neo-colonialist breach of Kenyan sovereignty.
However, since winning the election, what began as a passive-aggressive promise to comply with the ICC process has quickly morphed into outright dissent along with a more outwardly offensive strategy.
There have been allegations of witness intimidation by the defendants, for example, while Kenya's parliament has tabled a bill calling for the country's withdrawal from the Rome Statute, the document which recognises the authority of the ICC.
Furthermore this October, an extraordinary African Union (AU) summit was convened specifically to discuss Africa's relationship with the ICC. Following the gathering, the AU issued a communiqué insisting that presidents should not be tried whilst in office and calling for Kenyatta's trial to be deferred. As commentator Charles Onyango-Obbo has argued, the ICC charges did not only bring Kenyatta and Ruto together, but also led Kenya to integrate more deeply into continental politics and "finally made Kenya an African country."
Hearts and minds
Kenyatta's change of strategy has primarily been made possible by one thing: success in the propaganda war against the ICC.
Whereas Ruto, who was the first figure to stand trial, had to be much more compliant in dealing with his charges, Kenyatta has benefited from the slow but sure swing of public opinion in his favour and away from the ICC's.
While at the start of his election campaign, Kenyatta trod carefully and consistently signalled his willingness to cooperate with the Court, by the time of the AU extraordinary session, he was able to switch tack as he said, "African sovereignty means nothing to the ICC and its patrons," and that the ICC "stopped being the home of justice the day it became the toy of declining imperial powers."
The public perception battle the ICC is currently facing is arguably the most important in its history, and it is losing. An Ipsos Synovate poll released this July showed that the percentage of Kenyans who support the ICC process has fallen from 55% in April 2012 to 39%, and that was before the AU summit and accompanying series of outspoken criticisms of the ICC from several African leaders.
It was also before the Westgate mall attack, which has further galvanised domestic and international support for the Kenyatta government - so much so that some have suggested the attack marked the effective end of the ICC case as the West would now need to ensure it maintained the support of Kenyatta's government to help prevent further al-Shabaab assaults.
The turnaround in popular perceptions around the Kenya case and the fact it is now seen by many as part of an anti-African conspiracy is perhaps even more impressive given its history. Rather than being externally imposed on the continent, the case was referred to the ICC by a Panel of Eminent African Personalities mandated by the AU itself to seek a negotiated solution to the 2007/8 post-election violence. Furthermore, as Adams Oloo, a Senior Lecturer in the Department of Political Science at the University of Nairobi, told Think Africa Press, "The country was given the option of having a local tribunal. Our own parliamentarians refused three times and in fact, our own parliamentarians invited the ICC." These were the same parliamentarians that rallied around the slogan "let's not be vague, let's go to The Hague."
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A negative peace
In theory, the ICC case was meant to bring about an end to the culture of impunity that has persisted in Kenya and made violence commonplace in several of Kenya's elections since the reintroduction of multi-party politics in 1992. In fact, after every incidence of electoral violence, a commission of inquiry has been set up. Yet not one high-ranking official has stood trial for crimes committed around election time until now.
As one analyst, who asked not to be named for professional reasons, put it, Kenya is experiencing a form of 'negative peace'. There is little conflict on the surface, but the potential for violence is still there as underlying grievances have not been solved by either constitutional reform or the reconciliation process, of which the ICC case is supposedly part and parcel.
Reigning in the culture of impunity that rears its head at every election is no mean feat. But if a 'positive peace' is to be attained, the ICC case needs to run its course and in order to do so, the manner in which public opinion has been manipulated and the case has been impeded needs to be recognised and addressed - the ICC desperately needs to start winning some of the exchanges in the public perception battle that it is currently losing.
