The Westgate Aftermath: What really is Kenya’s National Security Policy on Terrorism?

After a long hard look at some pieces of information, I think I can make and defend a valid proposition of the problem that plagued the Westgate mission. The proposition revolves around what Graham T. Allison called Government Politics Model or Model III. This is familiar to students of foreign policy analysis as it was a structure proposed by Allison to measure and understand foreign policy decisions made in the wake of the Cuban Missile Crisis. The proposition is that unwarranted and ill-timed competition between the Kenya Police Force and the Kenya Defense Forces cost Kenya the initiative in the attack. Along with the initiative, a lot of civilians needlessly lost their lives.

On the afternoon of 21st of September, terrorist orchestrated what appeared to be a well planned attack on Westgate. This is an upmarket shopping complex owned by a wealthy Israeli businessman. As is custom for most Kenyans of means, the place was filled with shoppers and fun seekers as they sought to relax in the company of friends and loved ones. Then the terrorists struck at around half past noon, turning an otherwise uneventful and quiet day into a dark chapter in the history of the state.

Through the media, the police appeared to be taking lead on the matter. The ones that had arrived on the scene did what their basic police training could allow them. Granted that they initially thought that it was just another bank robbery they gave it their best shot until they realized they might have been way in over their heads. At that point, the elite Recce company was called in to assess and neutralize the threat as well as save ‘hostages’.

I mean no disrespect to the families that have been affected because of the tragedy by saying that there were ‘hostages’ at the mall. The simple reason behind the use of quotation marks is that the mall attack did not constitute a hostage situation. The terrorists did not appear to have made any demands using the civilian population as bargaining chips. Rather theirs was an insidious murderous plot that aimed to cause as much shock and pain on the civilian population as well as the security community.

With the Recce in the fray, it appeared that the situation was being handled, after all they are trained for this sort of thing. However images of the military soon flashed across the screen. With what I can only refer to a projection of force, tanks from military barracks created blockades around the site. The military was now involved, and would be for the next four days.

In the process of military engagement, two Recce company officers were shot, one fatally. The move precipitated the withdrawal of the police unit and the taking over of the operation by the military which had to regroup and plan. It is alleged by the media and some security analysts that this may have given the terrorists valuable time to gain initiative from security forces.

This scenario raised some important question about our security policy, especially in emergency situations. One was why wasn’t the military informed that Recce company was in the building and had cornered some of the terrorists (if not all of the terrorists as some released footage appears to show four attackers as opposed to the 10-15 alleged)? Who was supposed to be in charge of the operation? Was it the police or the military? Finally was there any body to coordinate information sharing between the myriad of security organs involved in the mission?

Information is man’s best friend, especially if you are fighting a terrorist. I therefore find it difficult to shallow – hook, line and sinker – the idea that the military had no idea that the Recce company was in the building and had secured the ground and first floors. Weren’t the military men briefed as they went into the building? If not, how was the Interior Minister able to brief the nation of the progress of the mission if information was not flowing from an official channel somewhere in the building?

Secondly, there is the matter of command chain. Who was supposed to be in charge of the operation? It depends on the mission. According to the KDF Act, s.32, if the force is deployed by the National Security Council to restore peace domestically, the overall superintendence of the operation would be under the Commander Defense Forces. However, if they are deployed in support of the National Police Service under s.33 in cases of emergencies and disasters, they are under the command of the Inspector General of Police. In this case, it was the latter provision that was in operation as the President expressly put the command structure under the Inspector General of Police but what happened?

The Commander of the Defense Forces appeared to be the one in charge. He gave press briefing on mostly inaccurate information leading one to ponder whether he was a victim of misinformation or a perpetrator. All along the Inspector General of Police appeared to be a back banner to the array of security personnel at the scene.

I then draw a conclusion based on these verifiable facts that indeed a bureaucratic model could be used to analyse the situation. In this model various government agencies that have independent mandates fight over resources and tasks and rarely share information on the matter they engage in. In this model, they compete for the attention of the hand that feeds them as they face off to see which organ requires more funding, training, etc. I strongly believe that this is what Kenyans were exposed to during the siege.

Finally, I think a recommendation would be beneficial even though those tasked with the duty of its implementation may not read it. Kenya should consider having a proper national security policy on terrorism. Such a policy should have an inter agency working group under the auspices of the National Security Council that would be involved in case of an attack and more importantly what is the correct chain of command. Through this task force, information would be readily shared among  the various agencies. This would have the capacity of efficiency and effectiveness and would nip any bad blood between security forces in the bud.

It also important to note here that the safety and security of Kenyans is in their hands. That is why I support the ‘Nyumba Kumi’ plan of vigilance. However this policy is a preventive one and does not address what happens if another attack were ever to occur (God forbid). Be that as it may, my heart felt condolence go out to the families of the bereaved, to those who have to look at the future generation and explain to them why their kin had to die.

Politics v Law: Bensouda’s Dilemma

It is often said that one can never study International Law distinctly from International Relations as the subject matter interact with each other and are affected by each other. It would be foolhardy to assume that international law is or can be practised outside its political context. The Kenyan cases provide a good example. Notwithstanding the ICC prosecutor’s, Fatou Bensouda, indignant protestation that the court is purely a legal body and does not resort to politics, the events around her cases say otherwise. This view – I think – is costing her, politically at least, and might derail the trial thus deviating from her end game: justice for the victims.

There is a Swahili saying that says “palipo na moshi, pana moto”, which translated in English means “where there is smoke, there is fire.” Over the weekend an extraordinary AU Summit session was held. The prominent agenda was the Kenyan cases at the Hague. As expected the heads of states bashed the court for being an instrument of the west. Moreover it is accused of practising selective justice skewed against African states. The session concluded that the UNSC would be petitioned to consider deferring the cases for one year, something, I have on good authority, the UNSC is considering.

So where is the fire? There must have been a trigger for the visceral attack on the ICC and the defiant tone of the Summit. I attribute this to Bensouda’s move to block Ruto’s (Kenya’s Deputy President) plea to attend only those sessions of his trial that are very important. In other words, he would have been exempt from attending all sessions of his trial freeing his time for State matters, as he argued. The recent Westgate attack just shows one how vulnerable Kenya would be if either the president or his deputy were outside the country let alone them being away at the same time.

Further, there was the bizarre argument by the prosecution that Kenya can swear in another deputy president to hold fort as the current occupant fends off serious international criminal charges. There is no provision of the law that allows for a temporary deputy president. If there is a vacancy as stipulated under the Constitution, 2010, the president is to nominate a replacement and parliament is to vet and vote on his suitability. This was Bensouda’s strike two as politically the perception of a coup d’etat was created in the fertile political minds.

Currently, there is a request pending in the court filed by President Uhuru. He seeks leave from the court to attend his trial sessions through video link, fondly called “Skype” in Kenyan political lingo. The reasons that have been advanced are the same as those advanced by his deputy: he needs to lead the nation. Thus in both the cases there are undertones of the sovereignty argument. This request may very well shape the outlook of the court either by further damaging its image among African states if it chooses to reject the request, or the opposite if it decides to grant Uhuru leave to attend court through the video link. But there is a problem.

There are three people before the court. One who is easily dwarfed in stature, and perhaps quite literally, by the other two is Joshua Sang often the forgotten suspect of the trio. In law, all persons must be treated equally before the law (principle of non-discrimination). Therefore there should be no special treatment on whatever basis. This is the point that Bensouda is making by sticking to the law and shutting her ears to the politics. However she can never ran away from it.

So what if the AU is mad? Suspects appear before the court in their individual capacity don’t they? Well, to the idealist, it is true that suspects do appear in their individual capacity but here is a novel situation. Never in the history of the ICC has it tried a sitting head of state and his deputy at the same time. The situation is quite different from trying captured war lords and retired civil servants. In my view it was ill prepared to handle the cases with respect to recognizing how the status change of the suspects would affect the administration of the cases.

Bensouda has now to decide whether to give into the prayers of the president and his deputy not to attend trials in person by not opposing their pleas before the court or stick to her adherence of the legal principle that all are equal before the law. The former would most likely quieten African leaders and could contribute to the smooth prosecution of the cases as the duo is already cooperating with the court. However it would create a precedent for such cases where all powerful suspects would request the same treatment on the basis on their position and power. The latter  will be sound in law but politically tumultuous. It may spell doom for her cases as it would embolden the pair not to cooperate with the ICC and thus justice for the victims could be in jeopardy.

ICC has the weaker hand here. It has no effective enforcement mechanism, much to the relief of state parties. It therefore means – in terms of power relations – the ICC lacks an independent power base to execute its functions. It therefore relies on the goodwill of member states to enforce its decisions; goodwill that is more often than not subservient to strategic foreign policy goals than to the protection of human rights. Thus, Bensouda may be forced to play politics in order to achieve her end game and deliver justice to all persons affected in the Kenyan cases. But as the drama unfolds, victims should seriously consider where in the world they will get the justice they thirst for.