After President Kenyatta’s brief encounter with British Premier Cameron, both are preparing for more trouble over the International Criminal Court casesPresident Uhuru Kenyatta’s three-day visit to London and meeting with British Prime Minister David Cameron this week mark a considerable diplomatic victory for his new government. Previously, Whitehall had insisted that official relations with Kenyatta and Vice-President William Ruto would be limited to ‘essential contacts’: both face charges of crimes against humanity at the International Criminal Court. British officials say the invitation to Kenyatta to attend the Somalia Conference in London on 7 May and meet Cameron and other officials to discuss regional security are in the ‘essential’ category. Kenyan and international human rights groups disagree.
Kenya has sent some 5,000 troops to Somalia, which are now part of the African Union force there. Kenya’s is easily the biggest economy in East Africa, which is now at the centre of a boom in oil and gas exploration. British businesses in East Africa were close to despair at the breakdown in London-Nairobi relations but it’s far from clear that Kenyatta’s visit will change matters in the longer term, at least as long as the Cameron government endorses the ICC trials.
Britain’s main ally in this diplomatic manoeuvring is the United States, which is not a member of the ICC. The US government congratulated Kenyans for holding a successful and peaceful election but not Kenyatta himself. What happens at the Court will be critical for both sides of the argument. This week, it agreed to postpone the start of Ruto’s trial until October. The Office of the Prosecutor will introduce another six witnesses.
Independent legal opinion suggests the case against Ruto is much stronger than that against Kenyatta. Some politicians in Nairobi therefore see the outline of a deal in which Kenyatta drops Ruto to satisfy international opinion. Insiders in the Jubilee Alliance, which the two men formed to fight the election, dismiss this as fanciful: Kenyatta could not have won the presidential poll without Ruto delivering a block vote from Kalenjin electors in the Rift Valley. A split between the two men could provoke violent protests in the Rift.
‘Coalition of the accused’
There will be some important developments in Kenyatta’s case over the next three months. The ICC Prosecutor, Fatou Bensouda, has refused to refer it back to the Pre-Trial Chamber for a second review of the evidence, although the defence insists that key witnesses have fundamentally changed their statements. Bensouda says she is absolutely confident of the strength of the case against Kenyatta and that several more witnesses are being accepted into the Court’s witness protection programme. The most likely prospect is that both cases will drag on for many more months, perhaps years.
A resolution on Kenya before the US Senate, sponsored by Senator Christopher Coons, who spent a junior year studying at the University of Nairobi and speaks Kiswahili, will irritate Kenyatta and Ruto’s ‘coalition of the accused’. The resolution asks the Senate to call on Kenya to continue efforts to end intimidation, impunity and violence, to recognise that the grievances that underpinned the violence in 2007-08 have gone largely unaddressed and to respect its commitments under the Rome Statute, which founded the ICC.
Relations will be further strained when US President Barack Obama announces the itinerary of his Africa tour, which we hear will include visits to East Africa but not to Kenya, the home of his father. Washington has no interest in Obama landing in Kenya, then walking off Air Force One to shake the hands of two men charged with crimes against humanity, all broadcast by local and international media. The US snub will prompt the dominant nationalist faction in Kenyatta’s government to strengthen links with China and India, which have little to say about Kenya’s human rights record.
The souring of relations with Britain and the USA will undermine implementation of the new constitution and local civil society groups. The government is stepping up pressure on local rights groups, especially those with foreign funding. As in 2007, Nairobi-based civic groups were deeply divided about the elections. The main fault line was between a ‘peace’ lobby that put political stability and national unity above prosecution for election violence and a human rights lobby that wants to end the culture of impunity by supporting the ICC trials and further domestic prosecutions.
Kenyatta has nothing to fear from the peace lobby; indeed, some of its supporters are close to his Jubilee Alliance. These groups argued for the importance of peace over justice; they were far less critical of the running of the elections or the final result. In fact, Jubilee puts this argument – for peace over justice – at the centre of its latest charm offensive to persuade the United Nations Security Council to support calls for the ICC case to be dropped or ‘brought home’. The campaign argues firstly, that the ICC lacks legitimacy in Africa because, they say, it has blundered into Sudan and Uganda and should not be ‘forced’ upon Kenya; and secondly, that allowing the cases to proceed could trigger unrest, threatening regional peace and stability.
This strategy is taking shape. At a Nairobi reception for dignitaries on the night before Kenyatta was sworn in on 9 April, two foreign leaders were invited to speak. Nigeria’s President Goodluck Jonathan expressed sympathy for Kenya’s position at the ICC, adding that Nigeria would stand behind Kenya as an African partner, backing the first argument. The second speaker, Somalia’s President Hassan Sheikh Mohamud, commended the peaceful elections, saying that this was critical to stability in his own country, thereby backing the second argument.
Unlike the peace groups, the human rights groups have taken on the Ruto-Kenyatta alliance: many of their leaders submitted petitions against the election results that gave Kenyatta a first-round victory. Because of this, the Jubilee Alliance tried to discredit Maina Kiai, a prominent rights activist, alleging that he was plotting with Britain to rig Kenyatta’s rival candidate, Raila Odinga, into State House (AC Vol 54 No 6, The closest of shaves).
Now the government wants new laws to limit the money that non-governmental organisations can receive from foreign governments. That would damage many civic groups, which remain dependent on finance from, for example, Britain’s Department for International Development or the US Agency for International Development. This financial threat comes as Kiai and other activists step up their criticism of the legitimacy of the elections that gave Kenyatta the presidency.
Although the Supreme Court unanimously confirmed Kenyatta’s election on 30 March, the Independent Electoral and Boundaries Commission (IEBC) has yet to release the results of the elections for the many other posts contested. This is deeply suspicious. There are credible reports that over a million more votes were recorded in the presidential race than in the elections for county governors. The votes were held on the same day at the same polling stations and election observers reported seeing few, if any, people put ballot papers in the presidential box but not the governor’s box, so this strongly suggests foul play.
If the IEBC confirms the million vote figure, it will raise doubts about whether Kenyatta passed the 50% threshold needed for a first-round victory and, indeed, whether he won more votes than Odinga at all. In turn, this would raise more questions about the IEBC and the Supreme Court’s judgement on the poll. Kenyatta’s team knows that the election is not yet over.
Many believe that the Jubilee Alliance will intensify its campaign against civil society. Western governments which have funded civic groups will have difficult decisions to make. Jubilee loyalists argue that the critical civic groups are simply the proxies of foreign powers. Without strong pressure from Parliament and civil society, the government is unlikely to implement the new constitution.
Britain and the USA may modify their stance if Kenyatta strikes a credible tone in his early speeches. They know that they need Nairobi as much, if not more, than Kenya needs them. Not only is it an important ally in the counter-terrorist campaign along the East African coast, neither London nor Washington can run a Somalia policy without working closely with Nairobi. That much is clear from this week’s London Conference on Somalia.
Such realpolitik will be a sharp reminder to Kenya’s human rights activists that, when it comes to political pressure and finance, they face a much tougher and perhaps more isolated future.