By Richard Dowden
Everyone is so relieved that the Kenyan election this year
did not result in a repeat of ethnic violence after the 2007 election, that we
seem to have forgotten that both President Uhuru Kenyatta and Vice President
William Ruto have been summoned to appear at the International Criminal Court
in The Hague charged with crimes against humanity.
This week Kenyatta was invited to London to attend the
conference on Somalia, Kenya’s troublesome northern neighbour. Everyone else
charged with crimes against humanity by the ICC has been arrested on sight and
locked up to await trial.
But instead of
slipping on the handcuffs this week, Mr Cameron grasped Mr Kenyatta warmly by
the hand and welcomed him to London. He argues that Mr Kenyatta is cooperating
with the court. That remains to be seen. Kenyatta must report to the ICC in The
Hague on July 9th, Ruto on May 28th.
There are precedents here. Mrs Thatcher embraced Augusto
Pinochet of Chile, another murderous dictator but one who helped Britain during
the Falklands war, because he too was an enemy of Argentina. And Tony Blair
embraced Colonel Gadaffi when he dropped his nuclear programme. But their
crimes were committed before the ICC was established.
No one seems to have thought about the possibility that a
murderous warlord might be elected president of a country which is a close ally
of Britain and the US and vital to the security and prosperity of East Africa.
When Britain and 121 other countries ratified the Rome statute establishing the
ICC (a further 31 signed but have not yet ratified), it was assumed that states
would cooperate with the Court. No one envisaged a situation in which someone
indicted for crimes against humanity would be elected president.
So will Kenyatta and Ruto dutifully surrender themselves to
the court on their appointed dates? Will they then continue to try to run Kenya
by skype from a cell in a Dutch prison for the next few years? Unthinkable.
Even if they agreed to go, Kenyans – including the middle classes – will lie
down on the road to the airport to prevent them going. Never mind that Kenya
was given the choice to hold them to account in the Kenyan courts but failed to
do so. Never mind that Kenya’s
international treaty obligations oblige the country to deliver them to The
Hague. Never mind that both should already have been arrested by the Kenyan
police and put on a plane, delivered to the court and locked up. They are not
going to go.
When Kofi Annan issued the names of those culpable for the
murder and mayhem that tore Kenya apart in 2008, he gave them a choice of going
to The Hague or being tried in Kenya. Both Kenyatta and Ruto argued in favour
of The Hague rather than the Kenyan courts, believing that somehow it would
never happen. When The Hague issued summonses they went swiftly into reverse.
Too late! Then they argued that they did not have to come in person.
Extraordinarily, given that they are accused of crimes against humanity, no
arrest warrants have been issued by the Kenyan state or anyone else.
Many Kenyans believe that the charges will be quietly
dropped. They believe that Western governments control the Court and it will do
their bidding. President Obama and or Prime Minister David Cameron, they
believe, will simply phone up the International Criminal Court and tell it to
drop the charges. That belief will be strengthened by the sight of Mr Cameron
greeting their president in London this week.
I used to think that Britain’s obligation to the ICC would
trump its relationship with Kenyan politicians but now I am not so sure. Either
way a major train smash is on the way. I cannot see any way of avoiding it.
It’s either the end of the ICC or a deep rift between those committed to the
ICC and Africa. It sounds like a perfect opportunity for China – another ICC
non signatory – to strengthen its already dominant new position in Africa.
Western countries, Britain in particular (being Kenya’s
closest ally outside Africa) are faced with a hard choice: abandon the ICC or
isolate their closest political and security ally in East and the Horn of
Africa. Britain and western countries benefit hugely from a stable, prosperous
Kenya. In Mombasa Kenya has the best port on the western Indian Ocean.
5000 Kenyan troops are in Somalia helping to restore peace
and Britain is taking the lead in establishing a legitimate government there. A
huge space in northern Kenya is also the British army’s training ground for hot
weather warfare. British troops heading to Afghanistan spend time acclimatising
to hot conditions and training there. And Britain wants economic success
stories in Africa. Kenya has a dynamic economy and has just discovered oil.
Five of the top ten tax paying companies in Kenya are British and economic ties
are strong. At a time of fragile security in the whole of the Horn of Africa as
well as the growing economic influence of China in the area, is this the moment
to put Kenya in the deep freeze?
Against this argument is the demand for a system of
international justice where politicians are no longer above the law and can
hire gangs of thugs and hit-men to destroy their opponents. In Africa however
there is a strong feeling that the ICC is specifically targeting those from the
continent. The vast majority of those convicted by the ICC and its affiliates
are indeed African. The only president facing trial is Omar Beshir of Sudan who
has been charged with crimes against humanity in Darfur. There was once talk of
sending snatch squads to capture him but he travels around Africa freely with
no threat of arrest in most countries.
So what will happen? Unless anything changes, when Kenya
fails to deliver those charged to The Hague it will be punished by international
sanctions. As Johnny Carson, the retiring United States Assistant Secretary of
State for Africa, said “choices have consequences”. America’s president may be
half Kenyan but he is not sentimental about it. Contact with Kenya by countries
who have ratified the ICC charter will be reduced to a minimum – essential
business only. The President and Vice President of Kenya will be unable to
travel except to countries that do not recognise the court. Aid to Kenya,
including training the Kenyan armed forces, will be cut. British and US naval
ships will stop using Mombasa port. Kenyans will find it harder to come to
Europe and the US.
The fact is that the Kenyan elite – like many in Africa –
simply do not recognise that they are subject to the law. Politically powerful,
exceedingly wealthy and above the law, no state official would dare touch them.
Throughout the years they have regularly looted the state through scams such as
Goldenburg and Anglo Leasing but not one of them has been sent to jail. That is
why the rest of the Kenyan elite have rallied round and supported them in the
name of nationalism fighting off “British colonialism”.
There are some manoeuvres that Kenyatta, Ruto and the others
accused can deploy to delay their trials. Kenya could repudiate the treaty,
withdraw from the court and refuse to send those accused for trial. There is
widespread demand in Kenya and elsewhere in Africa to withdraw from the ICC but
under international law that would not affect the cases already started.
After that the options narrow. For example under Chapter
VII, the UN Security Council can adopt a resolution requesting the Court not to
commence an investigation or prosecution for up to 12 months. Kenyatta and Ruto
have both requested a delay in the beginning of the trial and asked if they can
appear by video link or that the trial is held in Kenya or Arusha (Tanzania).
The court is looking at a request for delay in Kenyatta’s trial until November
but it looks unlikely to bend on other issues. The larger threat is that
witnesses will be prevented from attending. At least two key witnesses in the
Kenyatta case are reported to have either disappeared and are believed to have
been murdered. Others have withdrawn their statements. The case might collapse.
The case against Ruto is said to be much stronger. Ruto is
the Kalenjin leader and the worst killing that took place in 2008 was between
Kalenjin and Kikuyu. Kenyatta and Ruto then established an ethnic alliance
which made sure the war between them did not break out again and their combined
numbers would secure electoral victory. But if Ruto goes to The Hague but not
Kenyatta there may be war between the two groups again.
Whichever way you look at it a major diplomatic earthquake
is about to happen.
africanarguments
No comments:
Post a Comment