I am a native Texan myself, so I do not think that Texans are less likely to understand the moral, spiritual or foreign relations repercussions of aggressive tribalist propaganda on behalf of William Ruto and Uhuru Kenyatta than Americans in Idaho or Arkansas, say. The problem is that the operation seems to have been conducted by a United States-based firm, staffed by Americans, orchestrating a digitized propaganda campaign directed against both Kenyan voters and those Americans such as myself and other amateur or professional “Kenya watchers” or U.S. government personnel who would conduct internet activity touching on Kenya politics and government.
The firm in question, Harris Media, based on this report but also their associated social media, seems to have affinity for what I think of as the “White Right”–the National Front, AfD, UKIP, Roy Moore, etc., aside from Trump. I have noted the Uhuruto government courting these folks in the United States over the years — I won’t elaborate here but it has always troubled me as an American Southerner. Some of these people also use Christian symbolism as part of their personal branding which is that much more troubling for me.
Unfortunately the Americans involved as of this writing have not filed a Foreign Agent Registration Act registration and made the associated disclosures to the Justice Department and the American public.
The Privacy International report appears to to reveal that the American firm was an “agent for a foreign principle” in conducting a propaganda campaign for Kenyatta and Ruto’s re-election, in substantial part through generating fear and loathing of the opposition. I do know that some of my friends in Washington wrongly predicted violent behavior on the part of the opposition in the context of the botched August 8 election. Could they have been influenced by this propaganda campaign, and/or by others that have not yet been uncovered by outside investigation?
Let me be clear that I have always supported the pursuit of the ICC cases for the 2007-08 post election killings in Kenya. Not because the ICC was necessarily a good option but because it was that or nothing. My country, the United States, officially as a matter of foreign policy articulated by the State Department, always supported prosecution of the post election violence by a “local tribunal” in Kenya. Which is quite exactly like being in favor of Santa Claus bringing a cure for Ebola in Sierra Leone. In no way am I against either, but there are obviously more challenging questions begged by the devastating facts presented in these situations. (See “Christmas Shopping–For Sale: Brooklyn Bridge, Ocean Front Property in Arizona, Local Tribunal in Kenya”)
In the context of the “don’t be vague, go to The Hague” vote by Kenya’s Parliament, our U.S. position has been inevitably opaque. We are not and have never been a member state of the International Criminal Court. As a general proposition under U.S. law our officials are not to be involved in supporting ICC prosecutions, subject to certain potential exceptions. Nonetheless, as permanent members of the United Nations Security Council the diplomatic strategy of the Kenyan government in the second Kibaki administration put us to a decision as to whether or not to support Security Council intervention to interrupt the ICC prosecutions in the two Kenyan cases. We declined to do so, to our credit in my opinion.
How to understand what has happened with the pre-trial decisions by Prosecutor Bensouda to drop the charges against the two defendants in the Government/PNU case, Muthaura (on 11 March 2013) and Kenyatta (on 5 December 2014), while the trial in the Opposition/ODM case proceeds?
Almost seven years after the post election violence we are left with complete impunity on the side of those who initiated the conflict by stealing the election and employed two of the three types of large scale killings at issue in the charges of “crimes against humanity”. ICC Prosecutor Ocampo’s Government/PNU case originally included Kibaki’s Commissioner of Police, Major General Hussein Ali, but the Pre-Trial Chamber declined to confirm the charges against Ali, as it declined to confirm the charges against Henry Kosgey on the Opposition/ODM side. The greatest cause of death as identified by the Waki Commission report was gunshot wound – understood to be primarily administered by the General Service Unit, Administrative Police and Kenya Police Service forces under Ali’s command. The “body count” of those who were identifiable by tribe as reported by the Waki Commission was greatest among the Luo–those targeted primarily by the Government side rather than by the militias associated with the Opposition.
So whatever happens with the Ruto and Sang case, the winners of the post election conflict–those on the side of those who stole the election in the first place and who killed to keep and enforce power–remain comfortably immune from any negative consequences, as well as with the benefit of what they have “eaten”. No more than two individuals face any charges of the many people involved in raising and facilitating the ethnic militias in the Rift Valley that killed innocent Kikuyu in revenge for Kibaki’s election theft and to some extent for leverage in a post election political dispensation, as well as to remove future Kikuyu votes and occupy land as in 1992 and 1997 (when Kenyatta and Ruto were partnered in KANU as now in Jubilee).
Post-election IDP camp at Naivasha, Kenya, 2008
I do not necessarily blame Ocampo for having tried and failed. He took on what was perhaps inevitably a nearly impossible task given his lack of actual power. I do very much fault him for raising expectations and seeming to believe as well as play to his own press, and then quitting before the end. I am inclined to think that he simply had no realistic understanding of what he was getting into in going after Kibaki’s closest lieutenants on their own turf and was tone deaf to learning. He seems to have believed that the perceived global stature of the International Criminal Court and his office meant a lot more than it actually did in the warrens of power in Nairobi, no matter how many painted his face on the side of a matatu or a duka. It is hard to imagine how he could have failed to seriously pursue Kenyatta’s telephone and bank records before he left the prosecutor’s office in July 2012. Or how he could have seriously convinced himself that he or his successor would somehow get the records through some notion of “cooperation” from the second Kibaki Administration in which Kenyatta was a key Minister throughout, from his initial appointment during the post election violence on January 8, 2008, as well as the Deputy Prime Minister from April 2008. Did he pursue evidentiary assistance formally from the United States under those potential legal exceptions I mentioned?
I do not doubt that Ocampo showed personal courage in the prosecutions of Argentina’s ex-generals and compatriots in establishing the credential that led to his appointment as the ICC’s first prosecutor. Nonetheless, the key distinction in that case was a change in government that made such prosecutions feasible. That did not happen in Kenya because the stolen election was allowed to stand, with an eventual settlement that if anything made the situation harder by adding the perpetrators on the Opposition side into that Government as more junior parties, helping to maintain unity for impunity.
As for my country, we tried to have it both ways by supporting impunity for the theft of the election–having at the very best “actively looked the other way” while it was happening– then notionally supporting “justice” for the killings that followed. Not an idea that was ever likely to fit down a real chimney in Kenya.
And yes, I do have more stories for “the war for history” series. For instance, yes, the State Department did know before the vote in 2007 that the Kibaki Administration had dispatched the Administrative Police to opposition strongholds in support of the Kibaki re-election effort. Of course if the “AP” hadn’t gotten caught by those Kenyan television journalists it wouldn’t have been such a problem; certainly we Americans did not say anything publicly. Now that Kenyatta’s grasp on power is that much firmer with the ICC case over, I don’t doubt that he will further ramp up his efforts to formally and informally undermine the new Constitution and shift power back to the Presidency and away from the media, civil society and the citizenry at large to avoid such inconveniences going forward.
This week I got an email from the State Department’s Bureau of Democracy, Human Rights and Labor with a Request for Proposals for “Countering Closing Civic Space in Kenya and Uganda”. It’s a nice idea to support those trying to hold on to the freedoms they have won, and the amount of money–as much as $841,000.00 for a regional program for the two countries–would not have been trivial if it weren’t for the many millions we spent on the Kenyan IEBC during its 2012-13 “#Chickengate” binge, and on helping to sell its incomplete at best results to the public in the last election, for instance, among many other examples of the things we keep doing to contradict ourselves on support for rights, reform and democracy. And of course our much deeper overall long term “partnerships” with the Museveni and Kenyatta governments.
I may be the one showing naivete now, but I do actually believe that by and large most people in my government, as with the other Donors, do wish for better for Kenyans in terms of justice versus impunity, and for the protection of rights and the establishment of a meaningful democracy where voters have agency. All other things being equal, they would like Kenya to be a country in which powerful killers go to jail and votes count. It’s just that they can’t bring themselves to make the hard choices or take the risks required.
A diplomat has warned that the move last week by law makers to have Kenya pull out of the Rome Statute could jeopardise future search for international justice for Kenyans.
Canadian High Commissioner in Nairobi David Angell said pulling out of the Rome Statute, that established the International Criminal Court (ICC), would deal a blow to any future victims of violence that Kenyan judicial system would not handle.
What search for international justice? Kenya’s last Parliament did not follow suspect William Ruto’s “Don’t be vague, go to The Hague” lead out of a preference for “international” justice over trying the suspects locally–rather it was an excuse for not prosecuting anyone themselves. Likewise the last Parliament did not then turn around and vote in December 2010 to withdraw from the ICC as soon as the charges came down against Ruto, Uhuru Kenyatta, Sang and the three others in consideration of the interests of “justice”. If the members of Kenyatta and Ruto’s Jubilee coalition who voted again to withdraw from the ICC on the eve of Ruto’s trial were in the least concerned about a “search for international justice” for victims of election violence–past or present–they would not have done so.
Kenyatta and Ruto as KANU leaders were on the side of election violence in Kenya in 1992 and 1997 and they certainly have not done anything to express remorse or “search for justice”–international or otherwise–for the victims. The very idea that there should be such a search for justice for victims of electoral violence is an affront to the political order in Kenya and on this Kenyatta and Ruto can easily circle the parliamentary wagons against the threat to their private sovereignty and that of their cohort.
The High Commissioner ought to appreciate that he is speaking to an audience which has, over many years, shown that it takes these thing deadly seriously. If the Canadians want to step into the current diplomatic vacuum in Nairobi to address the situation, I certainly applaud the intention, but they if they want to have influence they need to speak of things that their audience cares about.
President Uhuru Kenyatta is set to hold talks with UK’s Prime Minister David Cameron during his three day visit, the first to a western capital since his election.
Human rights activists in the UK are reportedly organising to hold demonstrations to protest what they say is a ‘hypocritical manner’ manner in which the British government has made a U-turn against in its stand towards the Kenyan government.
The biggest difference in interests is that Kenya, a British colony within the lifetimes of current political leaders, is important to the British economy. Kenya is not very important to the U.S. economy. It might be someday, and the U.S. would notionally like to be more engaged economically in East Africa, and not only because the Chinese are; nonetheless, as of today the level of trade and investment is not a higher order immediate interest for the United States.
Further, in the global system that the U.S. has helped create, the U.S. does not really have the same relationships to even the largest companies that may be headquartered in the U.S. as the British and some other European nations still have with their business champions. Not to say that the State Department doesn’t want to sell Boeing v. Airbus, but there is no American equivalent of BAE, for example. Further, it is British rather than American companies that are the key players in Kenya in banking and finance, tea, horticulture, tobacco, printing, public relations consulting, etc.
As of the last few years, roughly 60% of the roughly 5,000 Americans living in Kenya, according to the State Department, were connected to missionary work. The British, not as much as far as I know. Moreover, there are perhaps five times as many British passport holders in Kenya as Americans.
The United States has a reported official established presence of more than two dozen federal agencies in Kenya, so we do have interests, but they are heavily weighted toward “global” security matters, along with international crime/drugs, etc., and what we might call diplomatic and security logistics. In other words, it is convenient for people to locate in and transit out of Nairobi to support a variety of functions that don’t relate uniquely to Kenya. Its an easier place to fly in and out of and has lifestyle appeal, along with being a locus of the same type of thing for people in other agencies, from other governments and international organizations. It is not that this geographic interest doesn’t matter, its just that it really is not of first order importance. A lot of the aid programs that we conduct in Kenya could easily be moved to other countries that are even more in need if less convenient, for instance.
When al Qaeda wanted to attack Americans and U.S. interests in East Africa, they bombed our Embassies in Kenya and Tanzania–not some critical infrastructure or something or someplace else that the Embassies are there to protect.
Kenya is a tourist destination with direct flights of modest duration from the U.K., but still no U.S. direct flights. In the U.S., Kenya is on the tourism “map” along with other various other locations in Africa, but at a much lower relative level; the British are Kenya’s greatest source of tourists. The British newspapers cover Kenya in a completely different way, and to a much greater extent, than American papers.
I have referred to Kenya as Americans’ favorite African country, but this is within the context of the whole “Africa is a Country” perception problem. It was one of the British princes who had the bad form to be quoted to the effect that “Americans don’t do geography”. The British still know their way around their former empire and distinguish Kenya from its neighbors much more readily than do Americans.
Certainly the British MPs wax eloquent about the key importance of training the British military in Kenya, noting that this was said to have played a major role in allowing Britain to mount its Falklands Islands operations some thirty years ago. Of course, realistically, the UK military in this century is primarily derivative and it is hard to see that the world would be so much different if the British had to train in one of the other former colonies–the U.S. for instance–instead of in Kenya. Military training in Kenya is surely good for British political and military morale, but i think it is the economic issues that really make Kenya uniquely important for the UK, whereas for the U.S. the scales tip overwhelming to the “security” direction.
Obviously the International Criminal Court is another area of difference. The British are members, along with other Western European nations, whereas the U.S. is with the Chinese and Russians in standing outside (whether we are nominally favorable or nominally derogatory seems to depend on which of our parties is in power but we seem to have a fixed commitment to stay out). In this sense, the election of Uhuru Kenyatta and William Ruto is in one particular respect inconvenient for the British in a way that is not as challenging for the United States, but given the ordinary primacy of the specific over the general, and the immediate dollar or pound over longer term security in democratic politics, it is not really surprising that the UK has been more aggressive and quicker in seeking publicly to “get right” with Uhuru Kenyatta following his elevation to the Kenyan Presidency than has the United States.
A simple question of what Kenyans chose to expect of and hope for themselves really, for them to answer.
Everyone is tired, no question. Most Kenyans are poor, and the breakdown of the IEBC process caused loss in the economy which hurts poor Kenyans the most. At the same time, the short term value of sweeping another electoral commission fiasco under the rug would be balanced by a huge cost in terms of the dreams of democracy that seemed to have been achieved in the 2002 vote.
The situation regarding the vote is less clear than in 2007, but the meaningful ability to go to court exists this time, unlike in 2007. Should the legal process be shelved now that it is finally available–and if so, will it be available again?
The 4 and 2 split is consistent with speculation I was hearing last fall at the African Studies Association, but not necessarily with the right defendants confirmed. or dismissed.
It will be very interesting to see how various elements of the Government of Kenya react to this. The Government sought to get the reference withdrawn in the cases and lobbied hard against the cases in the Security Council. Now that the hope of early dismissal has been dashed, the Government will be in a bind, especially with Finance Minister “in the dock”.
Court notes that presumption of innocence continues to apply, but that liberty of the suspects pre-trial is dependent on refraining from incitement and hate speech.
Another 2-1 ruling with a dissenting opinion forthcoming.
NAIROBI, Kenya – Kenya on Friday allowed the International Criminal Court to open an office in the country, a development that comes after Kenya’s commitment to the court came into question when the nation hosted Sudan’s indicted leader last week.
ICC Prosecutor Luis Moreno Ocampo is investigating top Kenyan leaders and businesspeople for their roles in the country’s December 2007 to February 2008 post-election violence that killed more than 1,000 people.
On Friday, Kenya granted the ICC immunity from legal challenges, tax exemptions and other privileges in a letter signed by Foreign Affairs Minister Moses Wetangula.
The move comes only a week after Kenya hosted Sudanese President Omar al-Bashir during a ceremony for Kenya’s new constitution.
. . . .
Kenyan Cabinet leaders, including Wetangula, met with ICC Registrar Silvana Arbia on Friday.
"We have agreed to comply with every aspect of the (ICC) request for the privileges and immunity which their officers require to be able to undertake their work," said Minister of State for Internal Security George Saitoti, who chairs the Cabinet subcommittee on the ICC.
"I trust that the government of Kenya will fully respect its obligations under the Rome Statute," which established the ICC, Arbia said after receiving the letter.
The ICC registrar has been in Kenya since Wednesday to seek government assurances it will cooperate with the court and educate the public about how it operates.
For a cautionary, but realistic view of where Kenya is a the moment, see the latest post from "Maina’s Blog", wherein Maina Kiai stresses the ICC status and throws cold water on the Truth, Justice and Reconciliation Commission:
Impunity and lack of accountability also needs to be addressed via the Truth, Justice and Reconciliation Commission, which is unfortunately now turning into a bigger farce than could have been anticipated! How a potential witness—in a negative way–can Chair the TJRC beats comprehension! How someone who is supposed to lead reconciliation can be so arrogantly obstinate boggles the mind. If Bethuel Kiplagat does not get what conflict of interest is, his competence and integrity as Chair are marred ab initio. Worse, he has now gone out and hired other potential witnesses as staff for the TJRC! Which means that these survivors—and a large majority have been on the margins of society precisely because of the violations they suffered–who are now staff will not be testifying at the TJRC as that would be another conflict of interest! What better way to destroy an institution, and weaken it before it starts than this?