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.

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Politics in Kenya Series: Are Kenyans Inherently Ethnic?: Politics of Marginalization and Redistribution

I have always agonized over a question that I think may hold the key to end ethnic animosity in Kenyan politics. Are Kenyans inherently ethnic? There are those who believe that the answer is an obvious yes but I am not yet convinced that this is the case. This post argues that there is a connection between resource allocation and the animosity between and among Kenyan tribes that has punctuated our voting patterns since independence.

The story inevitably begins before the creation of Kenya (I say creation because before 1920 there was no entity called Kenya). In or around 1918, the British saw it fit to implement the divide and rule policy that saw the creation of the idea of ethnicity. This in itself was not the root cause of animosity as I imagine that those who inhabited that territory must have noticed that they are different from each other. The problem began with the creation of the state and the subsequent loss of the indigenous populations’ autonomy.

In those days each group had its own center of power; political autonomy/sovereignty if you may. Thus each group had, from my readings, their own system of devolving resources for the good of the community.  However these systems were irrevocably destroyed with the creation of the Kenyan state. The consequence of this was the creation of not a nation state but a state of nations.

Marginalization was the ramification of the divide and rule governance adopted by the colonialist. Those that advanced the interests of the colonial government were rewarded while those who opposed it were disenfranchised. This created disparities among the erstwhile independent/autonomous ethnic groups living in Kenya – who in addition of being forced to be part of a state, had to contend with other groups for political power. There is confirmation of this in Prof. Colin Leys book Underdevelopment in Kenya to the effect that the Kikuyu’s were the most integrated tribe in the colonial economic system.

At independence the scene did not change. Whereas there was a section of the political elite that expected redistribution to be a serious Government agenda, there are those who viewed this as a threat to the status quo in which they stand to lose if things changed. From the Kenyatta to the Kibaki regime, ethnicization of the presidency and entrenchment of patrimonialism and clientalism systems of governance in Kenya became common place.

As those ethnic groups close to the center of power aggrandized their power through pork barrel political machinations, those in the fringes were kept out of development as evidenced by the unequal development in different areas of the country. This invariably contributed to a growing sense of disenfranchisement and anger between the haves and have nots. The presidency was seen as a way for improving the lot of one’s ethnic group.

Sensing this, politicians stoked the flames of perceptual hatred to win public support and guarantee  their political supremacy. Many a politician are on record claiming that other tribes must go back to their ‘homes’ a vague reference to their areas of origin. This exacerbated the hatred between and among tribes in Kenya.

With this in mind, I turn to the point on ‘inherentness’ of ethnicity in Kenya. I like to use a comparison between ethnicity and racism to bring out my point. In contradistinction to ethnicity, racism is based purely on hatred of a race that is different from one’s own. It is actuated by a malicious ideology of intellectual and cultural supremacy of one race over another. Ethnicity in Kenya, on the other hand, is not fueled by the deep seated hatred of other ethnic groups for its own sake, rather it is actuated by years of perceived and actual marginalization wherein one tribe views members of another as the reason for such marginalization.

I therefore believe that Kenyans are not inherently ethnic; that the issue lies at the heart of redistribution politics is my thesis thus far. As Ngugi wa Thiong’o once stated (after being released from detention in 1979), Kenyans have the right to interrogate how wealth is made in the country, who makes it and how it is distributed. The lack of exercising this right for a long time must have made other ethnic groups resentful and wonder whether this was the reason they fought for freedom so hard (see Oginga Odinga (1968) Not Yet Uhuru and Joe Khamisi (2011) Politics of Betrayal).

Once one understands this, we can place land clashes and the post election violence in perspective. Many of those evicted from their homes because they belong to a different community were seen to represent those greedy few in power bent on personalizing state power. Even though they never held elective posts or other position of power, their ethnic linkage to these gluttonous individuals sealed their fate.

To curb ethnic violence, the issue of redistribution must be carefully considered. I think that in part the county system – if properly implemented – will go a long way to ensure these issues will be resolved. However it may take decades if not a century for these inequalities to be narrowed and eventually done away with, if that is even possible (I am exercising cautious optimism here). However the perception of fairness in redistribution may be the key to end ethnic violence in Kenya once and for all.

Kenya Foreign Policy: Three Presidents and Fifty Years Later

In my view 2013 elections marked the end of the first republic. Since independence all the men who have had the privilege/pain of ruling over Kenyans were alive when the first government was formed. In fact they contributed greatly to the position the country is in at the moment both in domestic and foreign policy. The later is what I am most interested in.

It is a well documented fact that the first Kenyatta Government was west leaning. But that did not hinder some elements in Government, often called radicals, to engage the East nonetheless. That the Government of Kenya entered into trade and military agreements with USSR is an example. Daniel Branch – a professor of history with a deep interest in Kenyan history – chronicles in his book “Kenya: Between Hope and Despair 1963-2011” that Kenya was to receive an arms catchment from USSR before the British and American Governments impressed upon the Kenyan Government of the ramifications of doing so. The arms were ordered to go back to their country of origin.

In my view Kenyatta’s disenchantment with USSR came about from the events in the region. I draw inspiration from Hilary Ngweno’s “The Making of a Nation.” First there were the revolutions and counter revolutions in DRC which Kenya actively participated in the search for peace – Joseph Murumbi was the Minister for Foreign Affairs then. Secondly their was the mutiny on the Island of Zanzibar led by the army officer John Okello. Thirdly their was the uneasy relationship between Kenyatta and Obote where the former always thought that the latter wanted to supplant his Government in favour of a socialist leaning one led by Odinga; you may recall that there were arms that were found at the border near Odinga’s home area.

All these factors may have weighed heavily on the old man. His task was the establishment of a Government that followed the thesis of hard work for development. But here was another ideology calling for redistribution of resources which sounded – at least to him and his inner circle – like a scheme to benefit the indolent. Moreover this ideology threatened to take power by whatever means necessary. I assume that Kenyatta concluded that fraternizing with USSR would be detrimental to his rule; I do not preclude the hand of the British or American in forming this perception. Therefore it was politically expedient for him to align Kenya’s fortunes with the west while giving lip service to non-alignment to save face within the OAU an in the Non Alignment Movement (NAM).

Exit Kenyatta, in comes Moi. In the first few months he makes populist decisions. He releases political prisoners from detention, the famous Ngugi wa Thiong’o among them. Then comes the 1982 coup which should be read from the fact that Kenya was made a de jure one party state through the machinations of one Mwai Kibaki the VP (as he then was). The Government became repressive and thus Moi kept his promise of “fuata nyayo” (following the footsteps of his predecessor). Detentions without trials, arbitrary arrests, brutal crackdown of political dissidents among other tactics were employed to silence critics. Corruption became an issue as well, though it was also an issue even before Moi’s administration.

The cold war international system collapsed and the sole super power re-oriented its foreign policy. Whereas it believed that the biggest evil in the world was communism and made a point of containing it, with the ‘monster’ vanquished the order of priority changed. Moi’s excesses became to obvious to ignore. Erstwhile the Moi Government hid under the cloud of containment, now the space for maneuver had vanished.

There are some scholars – and to some extent I agree with them – who think that Moi went on a cleansing spree. Kenya’s foreign policy was pushed full throttle in defense of the morally bankrupt regime. This was done directly and indirectly. It was directly done through an aggressive diplomatic tactic of sending ministers, especially those in charge of foreign affairs, to sing the praises of the regime. The other, indirectly, was through the diplomatic engagement in Sudan and Somalia as peace makers in an attempt to deflect attention from the state of the nation.

History instructs that this effort failed. Moi was put under pressure to restore reforms and end his ‘dictatorial’ rule. With the constitution amended and the restriction of political parties lifted, there was an explosion of political activity on the scene. For two terms the opposition could not oust Moi but managed to block his protege Uhuru Kenyatta, now president, from getting into office.

I think this is where Kenya’s foreign policy got proper direction; rather than be used to protect the regime and curry favour with the west for aid, it was applied to a specific goal: national development through trade. The so-called economic diplomacy was hatched in Mwai Kibaki’s Administration. His was a plan to use foreign policy to meet Kenya’s industrialization needs. All the goals in Kenya’s foreign policy boiled/still boil down to how much money Kenya would make and how much growth it would register.

Could Kibaki’s background as an economist have something to do with it? I think this would be an interesting M.A. thesis; to what extent does the idiosyncrasies of Kenyan leaders account to the formulation and implementation of Kenya’s foreign policy? I would make an intelligent guess and say to a large extent. Kibaki saw things through the cost-benefit rubric and saw in China a perfect break from the past in terms of west (over)reliance.

Curiously, he seemed to have made a complete round-about. In 1965 he and Tom Mboya authored a document called “African Socialism and its Application to Kenya” which was Sessional Paper no.10. This document has been a linchpin in Kenya’s foreign relations. It was perceived as the total rejection of the concept of socialism and worse still communism in Kenya. But Kibaki, almost 40 years later, engages the communist Chinese; I find this fascinating to say/write the least.

Now there is the Kenyatta II Government. I cannot speak to the future as a social scientist can only investigate what has already happen as engaging in speculation is fraught with its own intricacies. However I do note the fact that the not so new Government is keeping in step with the Kibaki’s Administration’s view on foreign relations: that trade is the main tool through which Kenya will deal with the world. Interesting times ahead I should think.