Mall Raid Rallies Foreign Support for ICC-Indictee Kenyatta

NAIROBI —  While it hurts Kenya's tourism and investment, the bloody Nairobi mall assault by Islamist militants will help President Uhuru Kenyatta bolster international support as he confronts charges of crimes against humanity at The Hague.

Accused by prosecutors at the International Criminal Court of fomenting post-election bloodletting in 2007/2008, Kenyatta leads a nation that is now in the spotlight as a victim of crimes punishable under international law.

Saturday's raid on Nairobi's upscale Westgate mall, in which Islamist militants killed dozens of civilians in a hail of gunfire and grenades, has won Kenya words of support and firm condemnations of “terrorism” from leaders around the world.

This could shift the diplomatic scenario for a 51-year-old president, whose election in March as Kenya's head of state had already added a new dimension to the ICC prosecution against him. He denies encouraging the post-election violence that killed upwards of 1,200 people.

Kenyatta's allies are arguing that the security implications for Africa and the world of the weekend mall attack claimed by the Islamist militant group al-Shabab from neighboring Somalia should take priority over the president's obligations to the ICC, where he is due to face trial on Nov. 12.

“Do you want to focus on the ICC when so much has to be done?” Moses Kuria, a strategist for Kenyatta's Jubilee coalition who has worked alongside him, told Reuters.

He suggested the ICC suspend its ongoing prosecutions against Kenyatta and his deputy, William Ruto, for two to three years, to allow them to confront a threat to Kenya's security that the Kenyan leader has called an “international war”.

“The security concerns of the world at this time would better be served by us focusing all our energies on fighting terrorism, and ... ensuring the whole of Africa will not be a safe haven for terrorism,” Kuria said.

“Therefore, it will be untenable to have these cases continue,” he added.

ICC judges on Monday adjourned Ruto's trial, which began this month, for a week to allow him to return home and deal with the mall attack crisis.

ICC spokesman Fadi El-Abdallah said Kenyatta's defense lawyers had filed a request for the Kenyan president to not physically appear at his trial in the Hague next month, but participate via video link.

All requests for adjustments, suspensions or postponements would be considered by the judges on a “case by case” basis, he told Reuters, without commenting further.

Western governments, obliged to walk something of a diplomatic tightrope in their relations with the ICC-indicted pair after their election, now seem willing to work more closely with them, especially in anti-terrorism cooperation.

Tackling Terrorism: 'Essential Business'

“I would regard the need to combat terrorism as essential business,” the European Union's Africa Director Nick Wescott told Reuters. He was in Nairobi specifically to discuss with the Kenyan authorities the security implications of the weekend attack, which killed several expatriates as well as Kenyans.

Asked whether this would mean greater Western flexibility towards dealing with Kenyatta, Wescott said the two issues - the Kenyan leader's ICC trial and his international role in fighting Islamist extremist violence - should be kept separate.

But he added “Let's see how it goes. It is essential that we all work as closely together as possible to deal with threats like this in Kenya, in Somalia, everywhere.”

Reflecting this intensified cooperation, Kenyan Interior Minister Joseph ole Lenku said the United States, Israel, Britain, Germany, Canada and the police agency Interpol were assisting in the investigation of the Westgate mall incident and the identities of the attackers.

But for those who want Kenyatta to face justice and an end to what they call a culture of impunity in Africa, the idea of giving the Kenyan leader any judicial leeway is anathema.

“As tragic as the events at the Westgate mall are, the number of people killed there is a fraction of the people who were killed in the course of the events Kenyatta is accused of orchestrating,” said Makau Mutua, a Kenyan-born law professor at New York's State University.

He criticized the one-week postponement of the Ruto trial, saying the ICC acted emotionally rather than logically. He added he saw “short-term sympathy” over the mall attack but “for Kenya, not for Kenyatta”.

Global risk consultancy Maplecroft said the Shabaab attack on Kenya's leading shopping mall showed up how the ICC trials against the Kenyan leaders would be “hugely disruptive to the processes of governance” in east Africa's biggest economy.

“As such, the attack will provide another opportunity for Kenyatta and Ruto to demand that their hearings are switched from The Hague to Arusha in neighboring Tanzania, or postponed altogether,” Maplecroft said in a briefing note.

Ratings agency Moody's said the assault would dent Kenya's growth, particularly by depressing tourism.

But Moody's Assistant Vice President Edward Al-Hussainy added in a statement “We also expect it to give President Uhuru Kenyatta's new Jubilee coalition government an opportunity to galvanize a broader mandate and dull the international and domestic political effect of the ongoing International Criminal Court trial of the president and his deputy.”

'Stand with us'

Kenyatta, who has up to now publicly pledged his cooperation with the ICC, has made clear that he is actively seeking international backing to confront the widening threat posed by cross-border jihadists like the weekend mall raiders.

In a speech addressing the nation and its “friends” late on Tuesday when he announced that security forces had defeated the attackers after a four-day siege, Kenyatta stressed that “terrorism is a global problem that requires global solutions”.

“Kenya will stand with our friends in tackling terrorism and I ask our friends to stand with us,” a somber president told his nation, adding that Kenya had “stared down evil and triumphed”.

Since the mall attack, Kenyatta has received calls and messages of support from world leaders including U.S. President Barack Obama and British Prime Minister David Cameron.


Kenya is seen as a key ally in the fight against violent Islamist extremism in the Horn of Africa and Kenyan troops form part of an internationally-backed African peacekeeping force in Somalia that has put al-Shababon the defensive.

In contrast, another ICC indictee, Sudanese President Omar Hassan al Bashir, who is accused of orchestrating genocide in Darfur and is defying an arrest warrant, is treated as a pariah by the West.

Kenya's government, backed by east African states and some other nations on a continent that is increasingly suspicious of a perceived anti-African bias by the ICC, had already asked the ICC to suspend the hearings scheduled for Kenyatta and Ruto.

African leaders are due to discuss the Kenyan prosecutions at the African Union next month, amid some calls for a walkout by African states from the decade-old ICC.

The Hague court's prosecutor, Fatou Bensouda of Gambia, who is leading the cases against Kenyatta and Ruto, has given no indication so far that the ICC will ease up on the prosecutions.

In a statement on Tuesday, Bensouda said she was ready to work with Kenya and the international community to bring to justice those responsible for the weekend raid in Nairobi.

“Such attacks by armed groups upon innocent civilians are contrary to international law and may constitute a crime under the Rome Statute, to which Kenya is a State Party,” she said.

Evelyn Ankumah, Executive Director of Netherlands-based Africa Legal Aid, said that from a legal point of view the Nairobi mall attack should not affect the ongoing ICC cases.

But Ankumah, whose organization supports human rights and criminal justice from an African perspective, said she could not rule out the possibility of the U.N. Security Council asking for Kenyatta's ICC trial to be deferred, maybe for a year.

“It would be naive to say that international criminal justice is not political,” she said.