"If he refuses to go (to The Hague), then we have a problem. That means that they do not know the rule of law.You can't establish a court and refuse to go when it calls you. If he refuses, he won't set foot here," Skelemani said. He expressed confidence that Kenyatta and his running mate in the just concluded Kenyan elections, William Ruto who is also facing similar charges will cooperate with the ICC. He said the Kenyan cases are different from that of another top ICC customer, Sudan's President Omar Al-Bashir. "The Kenyans have never refused to go to the ICC whereas Bashir has. We expect Kenyatta to go when his case resumes," Skelemani said.
Kenyatta is the first person to be elected president while facing charges of crimes against humanity. When he takes the oath of office, he will become the second sitting president after Al-Bashir to face war crimes and crimes against humanity charges at ICC. Al-Bashir, was re-elected in 2010 despite the ICC's warrant for his arrest.Kenyatta, Ruto and radio journalist Joshua Sang are charged with crimes against humanity and war crimes following the 2007 post-election violence
that claimed more than 1,000 lives and displaced 600,000. Similar charges against Francis Muthaura, the then head of the civil service, were dropped after the ICC prosecutor Dr Fatou Bensouda found that a crucial witness had changed his statement. Kenyan cabinet minister, Henry Kosgey and then police commissioner Hussein Ali were also charged with crimes against humanity but were cleared by the ICC's pre-trial chamber for lack of evidence.
During her visit to Botswana in 2011, then deputy ICC prosecutor, Bensouda said that African leaders unfairly think that the court is targeting them when the truth of the matter is that they endorsed its establishment and ratified the Roman Statute that established it. She advised Africans to act within the parameters of the law. By mid 2011, the ICC warrant against Al-Bashir had divided the African Union with some states saying that it should be suspended pending efforts to resolve the dispute between the north and south. Botswana has stated that it will arrest Al-Bashir and hand him over to ICC should he set foot in the country. President Ian Khama has been on record calling Bashir a 'cancer'.