Kenya and the International Criminal Court: Politics, the Election, and the Law, CPHR 1

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Abstract: Why did Kenya initially join the International Criminal Court (ICC) but then attempt to undermine it once the ICC began to investigate the 2007–2008 post-election violence and its six alleged masterminds? And, what does this have to do with Kenya’s 2013 election? Political economy theories of treaty ratification offer no adequate answer. Instead, I advance an explanation related to changes in political risk, particularly in systems where the rule of law and institutions are weak and malleable. This paper argues that as post-ratification political risks for countries and defendants in such situations increase, compliance is likely to be jeopardized. Kenya and the defendants charged by the ICC altered their response to the ICC as their risk of being indicted, going to trial, and even being convicted rose. The ICC began to examine the Kenya situation in 2008-9, well before the 2013 election. This constituted a potential risk that continued to increase once the ICC received permission to start a formal investigation and the cases progressed. I analyze the various means used to challenge and undermine the ICC, explaining how and why winning Kenya’s March 2013 presidential race became key to avoiding The Hague.