The Kenyan Judiciary and Foreign Policy: The case of President Omar al-Bashir

In any state based on a constitution, there are certain basic values that are held in esteem. Among these is the separation of powers and checks and balances. Thus, in such states one often encounters three branches of government namely the executive, legislature and judiciary. Each branch with a specific task and given power to check the powers of the other two.

As relates foreign policy, the chief driver thereof is the executive. The executive is deemed to be the responsible arm of government that conducts foreign relations with other states. However it’s power is checked by the other branches of government and thus to attain the objectives it enunciates in its foreign policy there must be some sort of internal diplomacy.

The above brings into sharp focus the role of the judiciary, if any, in foreign policy execution. Without entering into the debate in this present entry, it is agreeable that the decisions of courts do have an impact on the execution of our foreign policy. I use the Bashir case as an example.

In 2011 the High Court of Kenya issued orders compelling the executive to arrest President Bashir if and when he sets foot on Kenyan soil. Recrimination was swift and clear. Khartoum recalled her ambassador and the executive was thrown into a diplomatic crisis. By that one decision the courts became an actor in the implementation of our foreign policy.

What did the decision mean for Kenya’s foreign policy? One is that Bashir became essentially persona non grata. He was no longer welcome in the country. The chief diplomat representing the government of Sudan was no longer welcome in Kenya. It therefore limits options of a summit bilateral diplomacy between Kenya and Sudan. This type of diplomacy is said to be the most effective as it cuts through bureaucracies and gets straight to the issues thus an advantageous option for Kenya.

In the same breath, the judgment bred suspicion. In the realm of international politics perception usually counts for everything. Human beings, according to Machiavelli, hardly looking beyond the surface make conclusions based on what they can see at first without so much as a second thought. Thus the government of Sudan must have perceived this as a message to Sudan that Kenya would cooperate with the ICC in Bashir’s arrest. Thus it was ready to sever ties with Kenya when it asked our ambassador to leave Khartoum within 72 hours and asked her ambassador to return home.

Results of severing of ties? Worst case scenario would be that Kenya would lose the lucrative trade balance tipped in her favour. According to estimates by the Export Promotion Council, Sudan’s imports from Kenya was at Ksh.12.75 billion in 2009. In contrast, her exports to Kenya was at Ksh.11.64 million. Clearly Kenya was gaining in this trade and would have lost it if Sudan would have effected the severing of ties.

Another implication would have been the possible expulsion/harassment of Kenyans living and working there. Without an embassy to report such cases, there lives would be very difficult to sustain and would necessitate them to come back home. This would create headache for the government in terms of settling the accounts on the investments that these Kenyans might have had in Sudan.

Therefore from a cost-benefit analysis, Kenya would stand to lose more from following international law in arresting Bashir than by ignoring it. I know it may sound very cruel since the man is accused of great atrocities. However, looking at the reality of international politics, many nations seldom adhere to international law principles if they cannot use it to justify their actions or the pursuit of their interests. This is called political realism.

Through the actions of deft diplomacy, there is a ceasefire of sorts. The Sudanese government has suspended its decision to expel our ambassador pending the outcome of the decision of the Court of Appeal. I am aware that there is an appeal that is sub judice and the executive through the office of the Attorney General is fighting hard to reverse the decision. It may very well be that Kenya-Sudan relations will be hinged on this decision.

However as far as the Kenyan judiciary goes, I am unable to see it relenting on its position in this matter. The new found independence and the rise of judicial activism has so much intoxicated those that call themselves reformers therein to such an extent that they would want to outdo each other on the strict interpretation and application of the law.  I do not see the Court of Appeal reversing the decision as it is.

In analyzing all this, one must also factor in the political implication of the Lamu Port-South Sudan Ethiopia Transport And Economic Development Corridor commonly known as LAPSSET. Since it provides South Sudan with an alternative facility to refine its oil, it means that it directly affects the interests of Sudan further fanning the perception that Kenya is a threat to its national interests. This further complicates matters for the executive in managing our relations with Sudan.

The executive must therefore work out its plans in the knowledge that today’s judiciary seeks above all to stamp its independence which may mean that its work would be more often than not more complicated. One question that resounds in these set of circumstances is whether the courts ought to consider matters of policy while making decisions on matters of law. One thing is for sure, if this decision is anything to go by, the answer is no.

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Domestic politics in foreign policy: Uhuru-Ruto ticket

Before I begin, let me state categorically that this entry does not concern itself with the suitability of a Uhuru-Ruto ticket. It only focuses thereon for the sole reason of attempting to project how our foreign policy articulation would be affected. Therefore, if there are any undercurrents in my argument that suggest otherwise, it is highly regretted.

It is now considered as trite knowledge that domestic politics do affect foreign policy. In other words that the internal political conditions of a state do affect the formulation and execution of that states foreign policy. Allow me to demonstrate how the two are interlinked. I will use the example of the current Kenyan political scene.

About two weeks ago, two prominent Kenyan politicians accused of international crimes at the ICC announced that they will be running for the president and deputy president of the Republic of Kenya. Assuming that they are elected owing to their strong political bases, how, if at all, would this affect our foreign policy?

It is my contention that it will affect our foreign policy implementation. In politics, perception is king. Therefore it does not matter what one’s true intentions are in any political action; what matters however is how others view this action. Thus, the actions of these two politicians may be viewed in one of two ways: genuinely or as suspect.

Of those that would view it genuinely are, among others, some African leaders and mostly China. Support for the ICC is the underlying reason for this. Most African states, with the exception of Uganda, South Africa, Malawi and Botswana, have publicly declared either that they would not arrest Bashir if he ever stepped in those countries or that they would not cooperate fully with the ICC on the matter. Thus the rest of the African nations would be least bothered by who becomes the president.

China not being a signatory to the ICC statute would most likely not concern itself with who is the president as long as they have unfettered access to our resources and are made our main development partner. The Chinese philosophy on human rights which includes some elements captured by international criminal law, has been one of cultural relativism. This means that they view human rights as being sensitive to a people’s culture. Therefore it is further unlikely that the Chinese will get involved in any issues relating human rights let alone the ICC.

Westward, the situation might be very different. The vocal US and EU have thrown their weight behind the ICC. This conclusion is arrived at by the numerous calls by the two for Kenya to fully cooperate with the ICC. Despite the occasional rhetoric that ‘only Kenyans will decide their future’, they would rather see the pair face the court as individuals and not run in the elections at all. They are likely to perceive the move by the pair as an avenue to frustrate the court and thus are unlikely to support their candidature.

Further, and perhaps most importantly, is the fact that their traditional role in Africa and Kenya in specific has been usurped by China. The latter has increased its presence in the country so much so that western diplomats cry foul. Not long ago western diplomats held a press conference wherein they berated the President of Kenya for ignoring them in favour of the Chinese diplomats. It was then that the German Ambassador said that Kenya usually goes to them to ask for funds on important things like the elections and she wondered whether the Chinese usually contribute anything. Therefore it is supremely important for them to get a friendly president to regain that position they had and their lot is not with Uhuru and Ruto.

In light of western interests in Kenya, I reasonably foresee that they will find ways of putting pressure on these two to relinquish their designs for the top job. If that fails there is also the possibility of sanctions as use of soft power to coerce them to abdicate should their candidature be successful. The fact that Kenya has vigorously employed the ‘look east’ economic diplomacy foreign policy does not make things easier. The US and EU are struggling economically and it would be a reprieve for them if Africa and in particular Kenya would play ball and allow them access as they do the Chinese.

Having considered the above, it will not be surprising to see the US and EU reducing their activities in Kenya. Worst case scenario would be them trying to destabilize our economy via sanctions and other means so that Kenyans themselves through hardships would find a way of ridding themselves of the pair. Some have suggested that Kenya could become a pariah state joining the ranks of Sudan. I am not certain that this would occur but time will tell.

In my view, technocrats that are tasked with the monitoring of Kenya’s foreign policy must examine this angle and come up with policy options that will direct our relations with mostly the US and EU. Doing this would provide better maneuvering space than doing damage control after the fact. My only hope is that all Kenyans are aware that the simple act of voting has ramifications way beyond our national borders.