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Lessons from the ICC and Westgate

Lessons from the ICC and Westgate
  • PublishedOctober 24, 2013

September was a poignant month in Kenya. The fatal terror siege affecting the high-end diplomats and expatriates haunting Westgate and the Kenyan parliament’s vote to withdraw from the widely derided Hague-based International Criminal Court (ICC) once again catapulted the country into the international spotlight. Our Nairobi correspondent, Wanjohi Kabukuru examines how the country is redefining itself under the new government.

The Westgate mall terror attack, which claimed more than 67 people from different nationalities and continents, sent a powerful message to the world that terrorism is still alive in Kenya. Politically however, the Westgate siege, which resembled the two Tinseltown flicks, Olympus has Fallen and White House Down and borrowed lines from the eerie 2008 Mumbai Taj Mahal Hotel terrorist attacks, provided the Kenya government with a much-needed ace.  After the events of early September, when the Kenyan parliament voted to withdraw from the Hague, “Westgate down” accorded Nairobi with a portentous political trump card.

A keen look at the events of the last seven months in comparison with the Jubilee election manifesto reveals one thing. President Uhuru Kenyatta and his deputy William Ruto are anxious about delivering positive results to the Kenyan people and the ICC will not sway them. This explains the tough stance that Nairobi has adopted over the Hague court. In the next few months the overused line of “cooperation with the ICC” is likely to be blurred, following on from the African Union resolution on the ICC in Addis Ababa. On 12 October, the AU unanimously resolved that no sitting African president should be tried in international courts while in office. The AU has also called on the ICC to postpone the trial of Kenyan President Kenyatta – scheduled for this month. But whether or not the ICC acts or not, what is clear is that the Kenyan leader will not be appearing at The Hague any time soon.

It all began on 6 September 2013 when a bold and symbolic meeting was held at the junction town of Mai Mahiu in Kenya’s Rift Valley. The symbolism of the Mai Mahiu meeting was a direct message to the world by President Uhuru Kenyatta and his deputy William Ruto, both of whom face murder and crimes against humanity charges at The Hague. At Mai Mahiu, the two Kenyan leaders initiated a 14-day resettlement programme to deal with the remaining remnants of 2007-2008 post-election violence, which left 1,555 people dead. The $36.6 million two-week-long internally displaced persons (IDPs) resettlement programme was a political statement directly aimed at The Hague and the west. The initiative was the first time families of those who were affected by the 2007-2008 post-election mayhem, were being ushered into normal life as the four remaining IDP camps were all closed down. The symbolism of this meeting was the reconciliation of communities and the overt message was that the ICC threatens this process.

Throughout the campaign period President Kenyatta totally downplayed the pressure weighing on his shoulders from the ICC, terming the case “personal”. But when the ICC chose a date that coincided with his father’s inaugural speech as Kenya’s Founding Father, they had trampled on a soft nerve. He hit back for the first time. “Kenyans should not be worried about what will happen. The government will continue doing things that we are doing today,” President Kenyatta said in Mai Mahiu. “A lot has been said to intimidate you, do not be intimidated. They should look for another country to intimidate.”

The same script that played out in the run-up to the March election campaigns was being reactivated. And as in the past, the ICC will suffer more credibility damage than the accused in the court of public opinion. A day later, at a prayer rally in Juja on the outskirts of Nairobi, President Kenyatta came out more directly: “We are willing to cooperate but they should not make it difficult for us to run this country. They should know we have a constitution and we are a sovereign nation.”

The perception war between the ICC and the Kenyan government has begun yet again with Kenya scoring political points on all fronts. When the ICC first took an interest in Kenya it enjoyed more than 60% of the public’s goodwill according to pollsters. Today the ICC’s support has waned to below 40%, thanks in large measure to the myriad blunders of The Hague, not to mention portraying open partiality. Of the original six accused persons three have already been let off the hook, thanks to the prosecution’s threadbare evidence and lopsided investigations. The ICC’s overt dalliance with overzealous civil society lobbies in Kenya has seriously undermined the integrity of The Hague and the standing of human rights NGOs. While conducting its investigations in Kenya the ICC prosecution team relied heavily on human rights activists for evidence collection.

This cosy relation with the human rights lobbies exposed the court to manipulation as a dispassionate search for truth and justice for the victims was undermined. In the same vein, more than a dozen witnesses have already withdrawn citing various reasons, among them “coaching” by the prosecution.
And these factors are wh seriously harmed its image. Worse for the ICC, however, was the perception that it was being used to prop up one side of Kenya’s two main political groupings at the expense of the other, through the machinations of Brussels and Washington. All these points, coupled with The Hague’s poor record of convictions and lack of concern to convict non-African war criminals, have been the bane of the ICC as far as Kenya is concerned.

On the ICC, Nairobi has already hardened its position and given The Hague little room for negotiation, apart from allowing it to alter its timetable and consult with Nairobi rather than issue orders. Unpredictable moments stirred by the ICC are likely to fuel anxiety in Nairobi, further damaging the already shaky credibility of The Hague.

The action by the Kenyan parliament to withdraw from the Rome Statute, and President Kenyatta’s sentiments, are an indication that hard times lie ahead in Nairobi’s dealings with both the ICC and the European Union.

According to the parliamentary majority leader Adan Duale, who moved the withdrawal motion, Nairobi should suspend and sever all cooperation ties with the ICC. This move by Nairobi has left the international human rights lobbies in shock, trying to figure out Kenya’s real intentions. Initially, this move to withdraw from the ICC was seen as intended at stopping both President Kenyatta and his deputy Ruto from attending their cases. This viewpoint was not far from the truth. While Ruto attended the court proceedings, it is now clear President Kenyatta will not attend and Ruto too will not return to The Hague next time.

But accruing to William Pace, convenor of the New York based Coalition for the ICC: “Kenya gains no legal advantage by withdrawing from the ICC… the Rome Statute makes quite clear that obligations related to existing investigations continue even in the event of a withdrawal.” According to Pace the motion to leave the ICC is a setback, which hurts Kenya’s reputation for upholding the rule of law and international human rights. Pace’s position is shared by the Nairobi-based human rights activists, who have rushed to condemn the withdrawal.

However, it is clear that the ICC, human rights lobbies and the west are still clueless as to what Nairobi’s motives are and what they portend. During the Westgate terror attack, the western security agencies were openly frustrated and completely cut off from raw intelligence at the scene, demonstrating that Nairobi was keen to sever her security links with the west – for political reasons.  

In addition, Nairobi was successful in lobbying the African Union to resolve that no sitting African president appear before the court. Nairobi’s diplomatic offensive is now being seen as a big boost to President Omar El-Bashir of Sudan, who has defied the ICC’s warrants for his arrest for “crimes against humanity”. In the words of Tedros Adhanom, Ethiopia’s foreign minister: “What the [AU] summit [in mid-October] decided is that President Kenyatta should not appear until the request we have made is actually answered.”

For decades Nairobi has been a key ally of the West and the assumption that this state of affairs may prevail under Kenyatta’s presidency now appears shaky unless the west changes its posturing on the ICC. The meddling by the ICC on Kenya has seen the Kenyatta-led Jubilee administration giving more leverage to Asian nations while denying traditional western allies political anchorage and favoured status in business dealings. This is in line with Kenya’s 2005 “Look East Policy”, which re-engineered Kenya’s foreign and business policies from the west to the Far East and Asia, as it tired of the West’s continued moving of goalposts on financing Kenyan development.

In the last five months President Kenyatta has elevated this policy into what appears to be a hallmark of his presidency, prompting Ugandan President Yoweri Museveni to say, recently: “In the [last] few months he has already made an impact on making it easy for the people of the region to use the East African market for posterity.” According to the Ugandan leader, previously there were 200 police roadblocks on the Northern Corridor, which is the main link connecting Kenya to Uganda, Rwanda, South Sudan, Burundi and DRC. These road barriers contributed significantly to delays and to lost time in transit goods reaching their destinations. Today only two roadblocks remain, which have drastically reduced the time it takes for cargo transportation from Mombasa to Uganda, from the normal 14 days to four days. Coupled with this, President Kenyatta has met with all the East African and Horn of Africa leaders at least three times in the seven months he has been president.  

Internally, Kenyatta is already being lauded on a number of fronts, but a few really stand out. For example, the way he has channeled the $68.5m that was meant to finance a presidential run-off should the 4 March elections have ended without a clear winner, into a youth entrepreneurship fund; the issuance of 60,000 title deeds to squatters on Kenyan coastal regions and the recent closure of all IDP camps.

Indeed as President Museveni quips: “President Kenyatta is very active.”

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