What Happens To Kenya If Indicted Candidate Uhuru Kenyatta Wins The Election?

As provisional results from the Kenyan presidential election roll in, things are looking up for Uhuru Kenyatta, who has been indicted by the International Criminal Court on charges of crimes against humanity and may face a trial this year at The Hague.

Voter turnout was high on Monday, when at least 70 percent of Kenya’s estimated 14 million registered voters poured into polling stations. Lines were so long that some polls were obliged to remain open for hours after scheduled closing times had passed.

Deadly violence rocked the country following the last presidential vote in 2007, killing at least 1,200 people and displacing hundreds of thousands. This time around, new electoral institutions were in place. Tens of thousands of security men were out in force across the country, government officials on all sides are making it a point to call for calm, and the Independent Electoral and Boundaries Commission -- established under the 2010 constitution -- is overseeing the tally.

Kenyatta, the son of Kenya’s founding president Jomo Kenyatta, went up against seven other candidates on Monday. His main competitor is current Prime Minister Raila Odinga, who ran during the 2007 election but lost to then-incumbent Mwai Kibaki, whose term limit is now up. Their fathers were Kenya's leading politicians, and rivals, in the 1960s.

Kenyatta’s early lead is raising concerns about his upcoming trial. He is accused of helping to organize and fund violence following the elections five years ago, a charge he denies.

The candidate is innocent until proven guilty according to domestic and international laws, but it is possible that his election would damage Kenya’s diplomatic standing with its neighbors -- and with the United States, which is the country’s primary aid donor and a devoted security partner.

“Given the comments that have been made, there’s an indication that the West favors Raila Odinga,” Jendayi Frazer, former U.S. assistant secretary of state for African affairs and fellow with the Council on Foreign Relations, said on Tuesday.

“I’d expect a warmer relationship [between the U.S. and Kenya] if Odinga wins the presidency, but in either case American interests and Kenyan interests are aligned,” she added.

Interests Intertwined

In 2011, the last year on record with USAID, American assistance to Kenya totaled $484.5 million. The vast majority of those funds -- $407 million -- went to public health initiatives.

A total of $8 million was devoted to counterterrorism, about twice the amount that had been devoted to that purpose only a year earlier. As an important partner to the U.S. in terms of security, Kenya is one of the top recipients of U.S. military assistance funding on the continent. The two countries have a shared interest in clamping down on militant groups including al-Shabaab in Somalia and other al Qaeda-linked organizations across North and West Africa.

The relationship has raised concerns about U.S. interference in Kenyan politics, with critics charging that the military aid empowers Kenyan security officials to clamp down on suspected terrorists -- and even political dissidents or separatist actors -- with little regard for human rights protections.

Given the high priority placed on counterterrorism operations by the United States, it is unlikely that a Kenyatta election would do much to hurt American cooperation with the Kenyan administration, despite the ICC indictment.

But that hasn’t stopped some from voicing their concerns. In a conference call with journalists in February, U.S. Assistant Secretary of State Johnnie Carson made a barely veiled reference to Kenyatta’s impending case in response to a question about Washington’s stance regarding the two candidates. Officially, neither candidate is endorsed by the U.S. and officials all the way up to President Barack Obama have called only for fair and free elections. Carson wasn’t quite that careful.

“Choices have consequences,” he said. “We live in an interconnected world and people should be thoughtful about the impact that their choices have on their nation, on the region, on the economy, on the society and on the world in which they live. Choices have consequences.”

It would certainly be diplomatically awkward if Kenyatta were elected only to be tried for crimes against humanity months later. But the U.S. isn’t directly involved in that case; it is not a member of the ICC, and has long refused to join, citing concerns that its own officials might be targeted for political reasons. The American level of engagement with the international court has risen only slightly under the Obama administration.

If Kenyatta were elected, in other words, his indictment would not affect U.S. relations with Kenya in any official capacity.

The candidate has promised to cooperate with the ICC when the time comes for him to appear in court, but that day could be a long time coming. The case has been plagued with problems, including reports of mysterious disappearances of witnesses and allegations of bribery.

Kenyatta was slated to appear at The Hague on April 11, which would coincide with a runoff election in Kenya if no candidate wins more than 50 percent of the Monday vote. Now, it is likely to be delayed even further -- at least until August.

More Pressing Concerns

For now, most Kenyans are more focused on the threat of violence than on that relatively faraway court date. The bases of support for both frontrunners are strong in their respective areas, and backlash in the event of an unexpected result could lead to turmoil.

Odinga represents the Coalition for Reform and Democracy, or CORD; and Uhuru Kenyatta’s bloc is called the Jubilee Alliance. But just as in the last election, voters’ political affiliations seem to be based on ethnic loyalties rather than policy differences. Early data released by the IECB show that constituents in areas dominated by Kenyatta’s Kikuyu tribe -- the most populous and politically well-connected group in Kenya -- swung heavily in favor of Kenyatta, while Odinga was more popular in communities that have traditionally been opposed to Kikuyu dominance, including members of his own Luo tribe, to which Obama’s father belonged.

Five years ago, violence ramped up only after Kibaki’s victory was announced, meaning that the risk of turmoil this time around has not abated quite yet. Already, clashes have taken place in the southeastern regions surrounding Mombasa, killing at least 12 people including police officers and militants. But those incidents could have been a result of separatist clashes not directly related to ethnic tensions that plague the country as a whole.

If violence is kept to a minimum as the days and weeks go on, it will mark a victory for a nation eager to reclaim its pre-2007 reputation for stability.

“Large voter turnout was a clear indication that people are trying to own this process,” Frazer said.

“A successful election is extremely important in Kenya because of its high priority and strategic location… It is the economic engine of East Africa and the host of many international organizations and businesses. Stability in Kenya is key to the stability of the entire region.”

This high-stakes vote isn’t necessarily over yet, since a runoff vote looks increasingly likely. At least half the votes have been counted by the IEBC, and provisional results show Kenyatta with 53 percent of the vote and Odinga with 42. This would seem to give Kenyatta a good chance of avoiding a runoff, except that the IEBC decided late on Tuesday that hundreds of thousands of spoiled ballots -- mismarked sheets that are essentially counted as blanks -- would be included in the total number of ballots submitted. That could be just enough to push Kenyatta’s total down below the 50 percent mark.

Only if Kenyatta emerges victorious in the end and Kenyan authorities prove successful in keeping clashes to a minimum will the problem of the president-elect’s indictment come to the fore.

That could be troublesome since the ICC case is a sensitive subject in Kenya. For many, it is a sign of international interference in what should be a domestic affair. Kenyatta himself noted in a January interview with Al Jazeera that his supporters were suspicious of the charges.

“If Kenyans do vote for us, it will mean that Kenyans themselves have questioned the process that has landed us at the ICC,” he said. “But that does not mean that we will cease to cooperate.”

A jail sentence, if it ever comes, would put the kibosh on a Kenyatta presidency. But until that day, the candidate can expect to follow through with the business of becoming president should he win this pivotal election.