Counter-Shaming the International Criminal Court’s Intervention as Neocolonial: Lessons from Kenya

Abstract

The International Criminal Court’s (ICC) intervention in Kenya’s 2007/2008 political crisis was reframed as neocolonialism by two of the accused – Uhuru Kenyatta and William Ruto – and their allies for most of their pre-trial and trial timelines. This article examines the grounds for and impacts of the neocolonial narrative, which was central to the accused overcoming their ICC stigma. Shamed by the ICC’s indictments, Kenyatta, Ruto and their allies formed the Jubilee Alliance, whose neocolonial narrative dominated national and regional discourses on Africa–ICC relations. This article’s discussion of the ICC’s counter-shaming in Kenya supports previous analyses that demonstrate how international criminal justice is undermined in local spaces. The article contrasts Kenya’s and Sudan’s experiences, highlighting the salience of the former’s neocolonial narrative in departing from cooperation as opposed to Sudan’s outright defiance after Omar al-Bashir’s indictment. The article suggests a need for more sophisticated comparative analysis of various country strategies. It specifically posits that for the Jubilee Alliance, the neocolonial narrative was salient in the Alliance’s struggle against cooperation due to the narrative’s multiple intentions and outcomes: persuading targeted local constituencies while delegitimizing the ICC, gaining concessions from some ICC sympathizers and courting regional solidarity in battling the ICC. Given the Kenyan experience, the ICC and its supporters need to be aware of different ways in which local actors can manoeuvre the Court’s moral authority and normative imperative.