Unilateral Interventionism, Perceptual Pitfalls and an Enfeebled International Law Mechanism: Will Syria be another Iraq?

War has ravaged Syria for slightly over two years now. Since the struggle began no side, either the Government or rebels, can claim decisive victory. This only leads to a bitter war of attrition; which group can hold out longer than the other. The human cost is immense and the ramification for international security grave.

In this context, international law ought to intervene in the maintenance of peace and security and the protection of human rights. However, therein lies the problem. The current system is based on a pseudo-democratic framework; that action cannot be undertaken unless there is consensus between the top five. Any action outside this framework is considered to be unilateral and an affront to international norms.

Be that as it may, some states do whatever conforms to their foreign policy objectives rather than international norms. George Orwell once wrote a book by the title “Animal Farm” wherein he depicts the inequalities of society. Therefrom the phrase ‘some animals are more equal than others’ was immortalized. The same is the case in international affairs.

One good example will suffice. The war on Iraq has been recognized by many as a mistake. US officials promised the world that they would find WMDs but that has not happened to date. Iraq was attacked nonetheless. This happened without the approval of the UNSC but some International Law scholars argue that the resolutions provided that space where Iraq does not comply with any UNSC resolution on WMD inspection.

Syria may also be in the same precarious situation, only without UNSC resolution precedents. There has been talk that chemical weapons are being used; these are banned under International Humanitarian Law as they unnecessarily aggravate pain and suffering and they lack precision thereby being indiscriminate weapons. There is enough evidence that chemical weapons are being used, the problem is determining by whom.

Like Iraq, UN inspectors have been sent into the war zone with a strict mandate. They are to determine whether chemical weapons were used. What they are not to determine speaks for itself and could determine whether western powers are to intervene militarily. The inspectors are not to determine who the perpetrators are. What would be the implications of such terms?

I foresee the UNSC being hopelessly deadlocked over the issue of culpability. Russia and China have made it clear that military intervention would only escalate chaos further and is therefore not the best solution. Russia has in fact warned of dire consequences if western powers militarily engage. It is a well known fact that Russia stands to lose billions in weapons supply contracts if Bashar’s Government falls which is seen as the most likely motivation for its stance.

If the UNSC becomes deadlocked, it could only mean that politics would take over. The western powers have already made up their minds about Assad’s Government; it is evil and it must fall. They view it with trepidation and much vexation. If the UNSC does not take any action – which many informed people think would be the case – the western powers might decide to go for it unilaterally. Therein lies two issues: that the perception of the western powers might be clouding their judgement and that international law may be inherently weak to forestall unilateralism.

On the first issue, the western powers appear to have made up their minds as to the evil nature of the Assad regime. US, UK and France all seem to agree that the Syrian Government is hell bent on obliterating the opposition and maintain its grip on power.

I argue that this perception of the Syrian regime may be obscuring sober debate on Syria’s culpability. Consider the evidence that has been presented thus far: a phone call conversation overheard by US intelligence agencies wherein a top official is allegedly captured asking on the effectiveness of a recent chemical attack on rebels held areas. This information published by the Foreign Affairs magazine has been couched as being part of a body of evidence that prove the regime’s culpability.

However certain things linger on. For one, the MI6 revealed to President Bush (jnr) that Saddam had WMD. Bush decided to go along with the intelligence but the reality was that there was no WMD. Could the Syrian case be one of history repeating itself?

More sobering is the fact that the CIA had expressed its doubts on the accuracy of MI6 intelligence but were ignored. Reason? The assumption that since the regime is bad it must have done the act that it has been accused of. Information was screened and foreign policy was made on the basis of character of a regime than hard facts on the ground. Could the Syrian Government be a victim of such a fate?

Then there is the issue of international law norms of restoration of peace and security. The present system, one in which international norms are to regulate international relations, lacks an effective system of containing unilateral use of force by a major power. In fact the bellicose nature of major powers is dissuaded by a ‘rational’ cost-benefit analysis of a foreign policy objective but often ‘regularize’ their act by arguing that their actions are within international norms. It is one of the reasons why international law and international relations are forever interlinked.

Note that I am not arguing that no crime was committed. That is a fact that the whole world watches in horror. What I am pointing to is merely that the use of chemical weapons  by the Assad regime – as assumed by the western powers – may be a pretext that western powers needed to engage militarily in the conflict and gain international support. If I am right, then trouble or help, depending on who’s side you are on, is coming to Syria.

Political Shenanigans and Legal Realities: Can We Really do away with Tyranny of Numbers?

Over the past few weeks, Kenyans have been treated to a war of words over their new constitution. For a constitution many voted for because their preferred leader had ‘read it for them’ without understanding the complexities therein, there is a danger to get lost in the acrimonious debate in the political scene. This post, albeit in a small way, attempts to analyse the situation based on political interests and legal realities to better understand the motivations of the warring parties.

Many may not have agreed with Mutahi Ngunyi’s analysis of voting patterns in Kenya which was based – I think – more on empirical derivation than visceral distaste for what is now the opposition. A cold and shrewd calculator of power, he opined that Kenyans always voted along tribal, ethnic if you like, patterns. This did not go down well with many of the members of the opposition party especially their captain. On a number of occasions Raila Odinga could be heard berating the analysis and the analyst for being anti-nationalist and peddling petty and parochial ideology. I think it is relatively safe to say that the election results spoke for themselves; relatively since some doubts linger on whether it was fair. From that time on, the term ‘tyranny of numbers’ became a house hold name; I would not be surprised that a child born at the time would bear such a name.

Now there is a push to change that. The Coalition for reform and Democracy (CORD) is pushing to amend the constitution. It posits that the current pure presidential system perpetuates ethnic motivated leadership. It suggests that the a parliamentary system would be best suited to render tyranny of numbers irrelevant. Is this true and if so can the CORD opposition groups muster the required constitutional thresholds to pass such an agenda?

First things first. What is a parliamentary system? This is a system where the head of government (mostly a Prime Minister) is often the leader of the majority of members of Parliament or is voted by Parliament which sits as a constituent assembly. In this system, members of the cabinet are often members of Parliament.

You may be wondering how this is any different from how the old constitutional order looked. Well there is a major difference. Note that the Prime Minister is not elected by the people of the republic. He is either appointed by head of state (often a ceremonial president of a monarch) as the head of a party or coalition of parties with Parliamentary majority or is elected by Parliament. Kenya’s old constitutional order provided for the election of a President directly by the people despite the fact that s/he too required to be a member of parliament.

Would such a system bulwark against the reality of tyranny of numbers? I fail to see how. For one, if the Prime Minister is to be the leader of the party/coalition of parties with Parliamentary majority, the tyranny of numbers would be at play. Unless one redrafts the constitution to provide for equal number of constituencies in all regions, something that is also difficult to do, there is no feasible way of guaranteeing that Kenyans will not vote along tribal lines. If they do, the most populous party or coalition of parties will most likely win: tyranny of numbers!

Secondly, the idea of voting for the Prime Minister appears to be credible, but looks can be deceiving. The prevailing wisdom is that if Parliament takes up the job of voting for a leader, then a charismatic one would most certainly sweep the floor and clinch victory despite party divisions. But as I said, this is deceptive at best. Many MPs are not moved by charisma but cheques and, preferable, cash thereby creating a position that elevates monetary leadership thereby perpetuating the bourgeoisie class in power.

The second consideration is whether this push can materialize legally. There are two ways of amending the constitution and two ways of ratifying it. According to chapter 16 of the constitution there is the Parliamentary and Popular initiative of amendment and there is the Presidential Assent and Referendum Approach to ratification of the amendment.

Parliamentary Initiative requires the tyranny of numbers that has been vilified. A look at article 256 impresses upon the reader the reality of pushing a constitutional amendment using this route. The law requires that both houses of Parliament pass the amendment each by a majority of 66% at two stages: the second and third reading of the bill. Thereafter the bill is taken either to the president for assent or the people in a plebiscite. Considering that both houses are ‘controlled’ by the Jubilee coalition, CORD has a herculean task.

Popular initiative provides the other alternative. But this too is fraught with difficulty. There needs to be support of a million registered voters which will not be a hard thing to achieve as CORD did get 5 million votes. Secondly 24 of the 47 County Assemblies must ratify the amendment and submit it to Parliament where it must pass by a simple majority. Thereafter it either goes for presidential assent or referendum.

Here there is reprieve for the CORD coalition. From the election results it appears that it ‘controls’ 20 of the 24 assemblies needed to pass such an amendment. Through lobbying getting to the number 24 is not that difficult. However two obstacles still remain. One is the simple majority and the other is the fact that the president may decide not to sign and therefore the matter goes for referendum where Raila will have to face the same population he did in the 2013 general elections.

With the legal realities having been considered, is there a chance of CORD passing the amendment they want? Chances are always there in politics, but CORD’s is a narrow one. Either way one chooses to look at it, tyranny of numbers will still be a factor.

Another important question is whether this is the best solution for the country. I do not think so. We are attempting to change the mind of Kenyans through law; a top down approach that will most likely fail. Many Kenyans perceive themselves through the lens of insular ethnic enclaves, a perception intrinsically tied to the politics of redistribution of resources. Thus I doubt that mere changes to law would have much effect on the populace; the real power behind election victory.

I could not end this post without considering some political implication of the push. A fairly clear one is that the race for 2017 has already began. Raila must court public attention at all cost lest his popularity plummets (see Law 6 of the 48 Laws of Power by Robert Greene). This is an avenue that will most likely endear him more to voters and thus leap ahead of what may be his main rival, the incumbent, who is tied down by state duties.

In conclusion, the realities of changing the constitution are quite grim for CORD. If they are serious in this move, they need to get down to work and be more organized than they were in 2013. If not, then they have to contend with the system as it is and hope against odds that the Jubilee coalition does not hold in the next election. This invariably means that tyranny of numbers is here to stay unless there is a fundamental shift in how Kenyans make political decisions.

Studying Kenya’s Foreign Policy: Seminal Events that Shaped Kenya’s Foreign Policy, 1963-66 (Part II)

The following post continues from where the last one stopped. It traces some of the roots of Kenya’s foreign policy in major events that occurred between 1963 and 1964. It is hoped that these events do illuminate the decision that leader at the time thought they had to make to protect the interest of the nation. However on question to cogitate on is whether there was a general understanding of national interest or was its true meaning political expediency and survival.

Domestic and Regional Ideological Rifts

As Kenya became an independent state, ideological cohesion appeared to be fleeting. Erstwhile comrades against the tyrannical colonial system turned bitter foes in the struggle for ideological direction of the fledgling state. On the one hand there were moderates/conservatives who may have seen things through a cost benefit analysis and on the other were radicals that saw things through the prism of liberation and idealism.

The ideological struggle brought out an imperative issue. Which way would Kenya go in the bi-polar international system? Those in the moderate camp, notably Kenyatta and Mboya were of the view that Kenya should lean westward while those in the radical camp – Odinga, Aneko among others – saw fortunes in both the east and west. However the latter group was more inclined to the east than west owing to the anti-imperialist stance that USSR was using in gather support within and outside the United Nations framework. That battle lines had been drawn was clear from certain political events that took place from 1963 to 1967.

A battle soon ensued to force Odinga and radicals out of the Government. Odinga had his interior ministerial powers stripped and given the vice-presidency without portfolio. Historical chronologists opine that this was the beginning of the end for Odinga’s rise to power. This was done in 1964 when Kenya became a republic.

In 1965 Parliament passed a document that guides Kenya’s foreign policy to this day. Sessional Paper No.10 titles African Socialism and its Application to Kenya was passed by the Kenyan legislature. The aim of this document was to firmly put Kenya on the capitalist path and thereby aligning Kenya to the west. This, as one could imagine, may not have gone down well with those from the radical camp.

Then there was the Limuru Conference in 1966. The main aim of the conference was to thoroughly humiliate Oginga Odinga. His post of vice-chairman of the KANU party was watered down to create 7 other vice-chairmen posts with similar responsibilities. In effect Oginga was being told indirectly that his presence in the party (as in Government) was no longer welcomed. So incensed was he that he never contested for any one of the seats preferring to quit and form his own party.

Such an act makes one wonder what if. What if Oginga became president and ousted Kenyatta democratically? Would Kenya have gone the Ujamaa way that Tanzania went or embraced socialism as Obote did? We may never know but one thing is for sure that Kenya may have taken a different path from what Kenyatta took. That the ideological struggle was won by the moderates, those inclined to the west and capitalist, may have pushed Kenya further towards the west than the east.

Regional Coups and Upheavals

Independence in Kenya was greeted with turmoil and trepidation regionally. For instance the Democratic Republic of Congo had imploded. Congo service men had mutinied against their mainly Belgian officers. This was to bring with it years of turmoil and strife.

Kenya became engaged in the process when Kenyatta was asked to chair the OAU panel that was to find peace in the country. These efforts failed owing to the wider issues at stake. Involvement of bigger powers such as Belgium and the United States dwarfed any attempts at peace and Kenya, through the OAU, fell on angry rhetoric on imperialist and neo-colonialism.

Shortly after independence, in 1964, there were events that shook Kenyatta’s confidence in the state of security of the nation. There was a army mutiny in Tanzania led by one John Okello. The mutiny led to Tanganyika and Zanzibar uniting to form the United Republic of Tanzania.

To the west things appeared bad as well. The Ugandan interior minister, Felix Onama, had been taken prisoner by a section of the military that his docket oversaw. There was no much drama as there was in Tanzania as the minister was eventually released. However this exposed vulnerabilities in the Kenyatta government that needed to be tamed.

Before an adequate response to the situation, there was the Gilgil insurrection. Some army officers mutinied in Kenyatta’s Kenya which brought the point home for Kenyatta. For him to survive in power he must take security, that of the country and most importantly his own, seriously.

This coupled with the secessionist war up North (Shifta War) gave Kenyatta the impression that outside military aid was necessary. At the time the only powerful friend that Kenya had was Britain. Relations with the US were tepid at best as the US did not see any real value of Kenya at the time. Therefore, Kenyatta relied heavily on British support to buoy his Government and hedge it against insurrections.

The British were as enthusiastic as Kenyatta was. Keen on protecting their east African investment, most of which was in Kenya, there existed a congruence of interests. Kenyatta’s Government would be protected as long as the British interest in the country was protected as well; a quid pro quo if you like.

These are the events that pushed Kenya into the waiting arms of the west. There were other events that occurred during this period that might have had an impact on Kenya’s foreign policy. However the above presented events appear to have had a bigger impact on the same than others did.