Why Kenya chose to ignore warrants by ICC and sup with the devil

Monday September 6 2010

Sudan's President Omar al-Bashir arrives at Uhuru Park grounds to witness the promulgation of Kenya's new constitution. Bashir who is on ICC's wanted list was one of the heads of state invited by the Kenya government.  (August 27, 2010). File Photo

Sudan's President Omar al-Bashir arrives at Uhuru Park grounds to witness the promulgation of Kenya's new constitution. Bashir who is on ICC's wanted list was one of the heads of state invited by the Kenya government. (August 27, 2010). File Photo 

By Samantha Spooner and Charles Onyango-Obbo

When Sudan’s President Omar Hassan al-Bashir showed up in Nairobi on August 27 for the launch ceremony of Kenya’s new constitution, he became the Big Party Pooper.

By the end of the day, Bashir, who is currently under indictment for war crimes in the Darfur region of his country, had become as big a story as the celebrations themselves.

Human-rights organisations across the world berated the Kenya government for kicking international law in the teeth by inviting an indicted war criminal to Nairobi — and not arresting him.

Within days, the Bashir issue had created a new split between the Party of National Unity and the Orange Democratic Movement — the partners in the Kenyan coalition government — with the latter criticising the invitation and saying they were not consulted.

As the week dragged on, the government looked less isolated as the African Union strongly backed the decision to invite al-Bashir — albeit in an unsigned statement.

The AU argued that Kenya was respecting the organisation’s resolution obliging member states not to arrest or hand al-Bashir over to the International Criminal Court in part because the AU views the ICC as biased and aimed at hounding mostly African leaders.

Even Rwanda has joined the AU position and has supported the decision as something within Kenya’s sovereign right.

However, Bashir’s visit to Kenya represents something bigger than mere defiance on the part of the Sudanese strongman, nor is it just a calculated and cynical act of disregard for the ICC on the part of Nairobi.

It speaks to a much deeper and continuing rebellion in Africa against the dominant, largely Western, post-World War II international moral order.

More fundamentally, it seems to represent the growth of two movements: One that could end in institutions like the ICC, and indeed the UN, becoming largely irrelevant to Africa; a second that would end in a world governed by competing international regimes — one Western and “old world,” the other African-Asian-Middle Eastern-Latin American, representing a “new world” regime.

The irony of this is that the more recent roots of the East African variety lie in Darfur, the scene of Bashir’s crimes (although the real starting point is considered to be the failure of the international community to stop the 1994 genocide in Rwanda in which nearly one million people were slaughtered).

The response by the international community to protect the people of Darfur took too long, and when it did, it was too weak.

Since 2003, the regime in Khartoum has conducted systematic massacres in Darfur that continue to date.

Despite its protestations, Khartoum is widely seen as the prime mover behind the campaign of ethnic cleansing and the patron of the Janjaweed militias, which have done most of the killing and destruction in Darfur.

On six occasions, the government in Khartoum has undertaken to disarm the Janjaweed, but has little to show for it as the mayhem continues.

So far 300,000 people are alleged to have been killed in Darfur, although quite a number of them died from illnesses related to the social disruptions caused by war.

Though the world was loud in condemning the Darfur atrocities, it did little beyond the talk.
The lead actor in the crisis for a long while was the AU.

In 2004, the continental body walked the talk when it launched a small monitoring mission that eventually expanded to 7,000 observers.

The UN’s first meaningful action came in 2005, when the Security Council imposed sanctions, and it took another year before these were targeted against just four individuals in the Khartoum regime who were accused of directing the atrocities in Darfur.

It was not until 2006, two years after the AU arrived on the ground in Darfur, that the UN Security Council passed a resolution providing for the deployment of peacekeepers to Darfur.

A year earlier, it had referred the Darfur situation to the ICC to investigate if war crimes had been committed.

From the beginning, the odds were stacked against the AU force in Darfur, also known as the African Union Mission in Sudan (AMIS).

For starters, they could operate only with the consent of Khartoum and only had a small monitoring mission, which eventually expanded to approximately 7,000 troops. They initially started out with 150 Rwandan and 150 Nigerian troops!

Secondly, AMIS was rendered ineffectual by the lack of adequate resources. Though the European Union and Nato provided logistical and technical advice to the AU mission, which was being praised as an “African solution to an African problem,” they had no helicopters nor enough vehicles to respond in any timely fashion.

There were legitimate concerns about corruption in the AU mission, too, but the view of many African activists was that to focus on that was like fiddling while Rome was burning.

In Africa, the reluctance of the international community to support the AU mission in Darfur was seen as racist, part of an old pattern of not treating emergencies in Africa with the same urgency that those on other continents receive.

Dejected and feeling abused, the overwhelmed AMIS force was eventually replaced by the United Nations-African Union peacekeeping mission (Unamid), on December 31, 2007.

Today there are only 16,698 boots on the ground, comprised mostly of Nigerian and Rwandese soldiers numbering 3,295 and 3,191 respectively.

The contrast between Darfur and the UN peacekeeping mission in mineral-rich eastern Democratic Republic of Congo, Monuc, was staggering.

Monuc, the UN’s largest peacekeeping operation, started out with an initial authorisation of 22,016 uniformed personnel. It had a budget of $1 billion compared with the AU Darfur mission’s $220 million.

Three years down the road, Unamid’s approved budget of $1,808,127,500 that runs from July this year to June 30, 2011, is at least eight times larger than that of the initial AU mission.

There are many reasons for the international community’s ambivalence on Darfur. Despite public hostility to Bashir, the US has a close intelligence relationship with Khartoum in its “war on international terrorism.”

Two of the Security Council’s permanent members, China and Russia, were always opposed to a tough line. China has even more incentive not to indict Bashir as it is the largest importer of Sudan’s oil.

Secondly, China and Russia have their own Darfurs in Tibet and Chechnya, respectively — and fear that taking a hard line on Khartoum would justify “unwarranted” international interventions in their own human-rights black spots.

Africa, though, felt that the big powers were only paying lip service to the “African solution to African problems” slogan and did not want to see the continent dealing successfully with its many problems, because this would undercut their influence.

In a sense, African lives do not earn a premium from the global Big Boys. What they care for is making money, hence they were enthusiastic about setting up Monuc because of the vast range of mineral wealth that Western corporations get from the DRC.

In any event, the result of the international community’s lukewarm response to the AU mission to Darfur was the softening of attitudes within even previously critical voices in Africa toward Bashir, and a growing deafness toward the sentiments of the “international community” on African affairs.

And if Darfur discredited the UN in African eyes, Somalia could prove to be the death knell.
While both the AU and UN were gung-ho about Somalia, in the end only two countries — Uganda and Burundi — sent forces to keep an elusive peace in Somalia. In fact, of the 6,000 AU peacekeepers in Somalia, a whole 60 per cent are from Uganda.

Compared with Darfur — because doing so with Monuc would create a mind-boggling difference — the UN support for the AU Mission in Somalia (Amisom) is about 10 per cent — $174,318,200 (July 2010 to June 2011).

The US has been reluctant to get directly involved in Somalia and instead offers intelligence, arms-length logistical support, and the occasional drone raid. It promised $170 million to Amisom and $25 million to the Transitional Federal Government.

However, the Igad countries repeatedly complain that the US is long on promises, but short on delivery.

Amisom commanders insist that peace can be won in Somalia. The only thing missing are resources, which the AU cannot muster. There is new hope following the EU announcement last week that it is going to allocate €47 million ($61 million) in funding to the AU peacekeepers in Somalia.

With a quarter of the budget that Monuc has, the story in Somalia would probably be different today.

Then came this year’s July 11 bomb attacks in Kampala, on the night of the football World Cup Final, in which nearly 80 people were killed. Somalia’s Islamist fundamentalist militia Al Shabaab claimed responsibility, saying it was punishing Uganda for stationing its troops in Mogadishu.

With that, the AU Heads of State summit meeting two weeks later in the same city, Kampala, agreed to send 4,000 additional troops to bolster the Somali administration and give Amisom a peace enforcement role.

If the African leaders expected the UN or US to respond to the Kampala bombings in any fashion remotely similar to how Washington reacted after the September 11, 2001 attacks in the US, they were in for a surprise.

Following immediately on the Kampala decision, both the US and UN warned that Uganda’s position of robust military action against the militants would escalate the Somali crisis to uncontrollable levels.

That forced the AU back to the drawing board, and it agreed that Amisom remain a peacekeeping mission for the moment.

The message was clear: The AU could not take any action that the organisation deemed necessary in Somalia if it was at variance with what the UN Security Council and the US preferred.

If they did, they would not get a penny in support, or even backing in case the whole thing blew up in their face.

Fair enough, but the timing was unfortunate. At the 13th Ordinary Summit of the AU held in Sirte, Libya, in 2009, the AU “collectively” took the decision not to co-operate with the ICC over its arrest warrant on al-Bashir.

That was despite 30 African states having already ratified the Rome Statute creating the ICC.
There were abstentions afterwards, though. Botswana, South Africa and Uganda, in different ways, indicated willingness to abide by their ICC obligations.

Botswana’s affirmations have been quite open, while South Africa’s came when it discouraged Bashir from attending the World Cup Final in Johannesburg.

Uganda, too, sent deliberately mixed signals about Bashir’s attendance of the July AU summit in Kampala. The ICC had just concluded a conference in the same city. In the end, the Sudanese leader chose not to come.

At the Kampala meeting, delegates notably agreed to overturn the instruction to member states not to co-operate with the ICC in apprehending Bashir, opting to press for a suspension of the arrest warrant instead.

Even with that, though, there was no longer any appetite for a quid pro quo on the part of the AU, which was now mulling the idea of an “African Union Authority,” something apparently new that would ostensibly speak with one voice on matters such as Darfur and fend off suspect interventions or “solutions” brokered by the West.

To compound matters, a few days after the US and UN rebuffed attempts by the AU to enhance Amisom’s mandate, Henry Bellingham, the UK’s Africa minister, announced that Britain was to increase its business ties with Sudan.

Bellingham said: “The trade we have with Sudan at the moment is very good. Our bilateral trade is well over £100 million sterling ($154 million) but we feel the scope for that trade can increase.”

Bellingham went on to downplay the sanctions imposed against Sudan. “There are no UK sanctions, there are US sanctions,” he said, adding that they do not affect Britain. “We want to see more UK banks taking a positive view toward Sudan.”

Earlier in May, the US sent a consulate officer to represent it at the inauguration of Bashir’s second term.

When asked by journalists whether sending such an official was not meant to show support for Bashir, US State Department spokesman P.J. Crowley defended the action, saying the US had work to do in Sudan as it “pressed for full implementation of a fragile 2005 peace deal.”

The US is also well aware that its vital Arab ally Egypt, as well as the majority of Arab states in the Middle East, back Bashir and are opposed to the ICC warrants on his head.

The UN Security Council members seem quite eager to cut deals with Khartoum, but are not embarrassed by their hypocrisy in criticising neighbouring countries that invite Bashir to join them for a few hours for the launch of a new Constitution.

At the same time, they are not willing to contribute to stabilising Somalia, about which they are most outspoken in proclaiming the threat it poses as a “terrorist haven.”

Effectively, then, Africa must act alone to end impunity and bring peace to countries like Somalia. Against this background, it is not surprising that Kenya invited Bashir to its Constitution party, despite the ICC indictment against him.

Beyond the wider African context, Kenya and Uganda have their own particular local dynamics that leave them with little choice but to mollycoddle Bashir.

When the Comprehensive Peace Agreement was signed in Nairobi in 2005, the largest number of Southern Sudanese refugees was in East Africa. There were 212,857 of them in Uganda and 96,646 in Kenya.

Then, partly because of the killings in Darfur, there were 228,836 registered Sudanese refugees in Chad. Overall, between 1962 and 2008, Sudan has had 1.4 million displaced persons.

Since the CPA was signed, more than 320,000 refugees have returned to Southern Sudan. But up until last week there were fears that the peace could unravel quickly and badly.

Already, the South and North have been quarrelling over the sharing of oil revenues. Recently, Khartoum angered the SPLM authorities in Juba when it decided to pay its share of oil revenue in Sudanese pounds, instead of foreign currency.

Though as per the CPA the South should be holding a referendum in January 2011 — where it is widely expected to vote for secession from the North — that has been looking increasingly unlikely, with Juba accusing Khartoum of sabotaging the setting up of the committees and machinery for the referendum.

All these raises the prospect of the one thing that Kenya and Uganda are not willing to countenance — a return to war in the South.

Uganda will be the biggest loser. First, since 2006, the brutal Lord’s Resistance Army that was long aided by Khartoum (with Kampala doing a tit-for-tat by backing the SPLA) has not launched any attacks inside Uganda.

The LRA was already under pressure because as soon as it became clear that the Sudanese talks in Nairobi would result in an end to the war in the South, it became possible for Uganda to negotiate a deal with Khartoum to go into the South and hound the LRA out of its bases there.

The assumption of power by the SPLM in the South effectively put paid to the LRA, thus ending an insurgency that had dragged on for 15 years, resulted in possibly up to 360,000 deaths and left a record 1.6 million people from northern Uganda as internally displaced persons living in squalid camps.

The LRA threat

A resumption of war in the South could, therefore, potentially open the door for the LRA (which is now scattered in eastern DRC and operates as far afield as the Central African Republic) to return to “base,” as it were, enabling it to launch renewed and direct attacks into northern Uganda.

However, to complicate matters further, it would be impossible for the Sudanese refugees to return to the areas where their camps used to be, particularly in the fertile Kiryandongo areas in the upper southern part of the country.

This is because those camps are located near the rich oil fields that have been discovered in Uganda over the past five years. Land prices in and around these areas have shot up astronomically, both as a result of the oil finds and as speculators rush to snap up large nearby tracts.

Oil and security therefore make a return of Sudanese refugees too costly. If what it takes for war not to return to Southern Sudan is to humour Bashir, then Kampala will go the extra mile to do it.

Kenya needs to humour Bashir as much as Uganda, but for different reasons. To all intents and purposes, Southern Sudan is a Kenyan economic outpost.

Apart from the many Sudan relief operations that are still run out of Kenya, what goes for the hospitality, banking, aviation and construction industries in Southern Sudan are mostly Kenyan enterprises.

Secondly, the Chinese have embarked on natural gas exploration in northern Kenya, and optimists talk of a conjoined Southern Sudan-north Kenya gas exploitation industry that would bring immense wealth to both countries in the years to come.

Thirdly, Kenya and Southern Sudan propose to build an oil pipeline from Juba to Lamu, 1,700km away. Incidentally, the distance between Juba and Port Sudan is 3,000km.

Mitsubishi and a Toyota subsidiary called Toyota Tshusho are both pitching for the pipeline contract.

Kenya’s economic interests in Southern Sudan, therefore, have reached a point where they are too valuable to be disrupted by an ICC indictment against Bashir.

But there are significant political concerns too. The new Kenyan Constitution, which has extensively devolved powers to newly established counties, means Nairobi can no longer dictate freely where a refugee camp should be located.

Because the counties have been given some administrative rights over land, this will put paid to the refugee policy of old. In short, Kenya has too much to lose from a return to war in the South, and the refugees that will come with it.

Kenya will be perfectly ready to do a deal with the Devil to prevent that. If that Devil is Bashir, then he is in business.

For Kenya, therefore, doing business with Bashir is a matter of cold realpolitik. And given the shifts noted earlier in Africa over how to deal with the crises in Darfur and Somalia, and the perception that the international community cannot be relied upon, the reality is that there is a geopolitical situation in East Africa that is very much in favour of Bashir.

Bashir can do without an invitation to Kampala or Nairobi. But Kampala and Nairobi cannot secure their future without sitting across the table from Bashir.

Fortunately for the realpolitik practitioners, Bashir has thrown them a facesaver, announcing that following a meeting on the sidelines in Nairobi during the Constitution launch, all the outstanding issues in respect of the Southern Sudan referendum were settled.

However, the forces at play in these geopolitical games have become so complex, that outsiders can expect that in the near future, they will simply not have the smarts to influence the direction of events.