As the High Court in Kenya last Friday threw out a case seeking to bar politicians Uhuru Kenyatta and William Ruto from running for president and deputy president respectively, the unspoken fear in diplomatic circles was that the pair would refuse to co-operate with International Criminal Court if elected.
“Last October, we received information from a very credible source that the two were not going to co-operate with the ICC if elected,” said a senior diplomat. According to him, it is this information that prompted former UN chief Kofi Annan to come to Kenya and “speak the way he did.”
(In October 2012, when Mr Annan, together with former Tanzania president Benjamin Mkapa, visited Kenya in his capacity as a member of the African Union Panel of Eminent African Personalities, he cautioned that electing people facing charges at the International Criminal Court would have implications for Kenya’s foreign relations.)
“Everyone needs to ponder particularly when we are dealing with leadership of a country and leadership that involves other countries outside Africa. These cases are against individuals and not against any tribe or group. Justice must be done and Kenya is obliged to assist the court in accordance with the Rome Statute,” Mr Annan said.
He returned in December with a similar message, saying any Kenyan leader must be able to travel to meet other heads of state and be trusted by the international community. “When you elect a leader who cannot do that, who will not be free or will not be easily received, it is not in the interests of the country and I’m sure the population will understand that,” he said.
Then US Secretary of State Hillary Clinton too had in August last year warned of the wrath of international community should those facing cases of crimes against humanity at The Hague be elected.
Mr Kenyatta and Mr Ruto have consistently stated that they intend to co-operate with the ICC to the end. When the question came up during the presidential debate that was transmitted live on all Kenyan television stations and most radio stations on February 11, Mr Kenyatta said he and his running mate were determined to pursue the cases facing them until they cleared their names.
But the assertion does not seem to have assuaged the fears of the diplomats, mainly from the European Union, the US, UK and France, going by their persistent interest in the issue, which has left analysts and politicians concerned that they could be planning to impose sanctions on Kenya.
Their comments have been criticised by politicians, including Mr Kenyatta and Mr Ruto, who accuse the international community of interference in Kenya’s domestic affairs, and seeking to influence the outcome of the election in favour of a particular candidate.
The EU head of delegation in Kenya, Lodewijk Briet, told The EastAfrican that, regardless of the outcome, “The most important point is that the Kenyan government continues to co-operate with the International Criminal Court, an institution which it voluntarily signed up to. If those indicted by the ICC choose not to co-operate, then it is a legal matter for the Court, not us, to decide what happens next.”
Kenya’s Foreign Minister Prof Sam Ongeri joined the fray, seeking a clarification on what “maintaining essential contact,” the term used by most of the countries in recent statements, entailed.
Mr Briet said that, according to EU policy, “since 2010, European and many other like-minded states have only essential contact with ICC indictees.”
Analysts said the statement by the US and EU diplomats on maintaining “essential contact” was vague and lacked specifics, which may give room for extension of such limitation to include trade sanctions that would hurt Kenya’s economy.
However, the diplomats are reluctant to talk about possible sanctions, saying they are more concerned about a peaceful and credible election than the ICC. “We see two events that could create violence. One would be a perception that the election has been rigged and the other would be if one of the candidates decided to contest the result,” said another senior diplomat, who declined to be named.
Just what is at stake should Kenya be slapped with sanctions? Are Kenya’s allies ready to abandon their strategic interests in the region, interests they have so assiduously guarded for so many years, over the outcome of the election?
Nairobi is increasingly becoming host to foreign businesses and political interests, raising its profile in the international arena, which analysts see as inevitably deepening diplomatic relations and increasing the need for image and confidence building.
Heightened international attention to Kenya would threaten the flow of international investments to the country as financiers watch the goings on in Kenya.
Analysts warned that political sentiments arising from the elections and the trial of the four ICC suspects are causing jitters in the money markets at a time when the economy is reeling from the impact of the global financial crisis.
Kenya’s perceived regional importance will not prevent the West from imposing sanctions if the need arises, as new countries have emerged as more important to regional interests of the United States and Europe, foreign policy analysts said.
“Countries like Uganda, Ethiopia and Tanzania are now considered more strategic in the region by the West than Kenya is. Nothing will therefore prevent the West from imposing sanctions on the country,” said Emmanuel Kisangani, a senior researcher at the Institute of Security Studies, a pan-African human security think-tank.
He said a country like Zimbabwe was more strategic to Europe than Kenya, but the bloc went ahead to impose sanctions.
To what extent can the US sacrifice its interests in Kenya?
Data from 2008 shows that Kenya was the seventh largest recipient of foreign aid at $600 million in that year, behind Iraq, Pakistan, Jordan, Egypt, Afghanistan, and Israel.
That Kenya received such a colossal amount of foreign aid is attributable to the special relationship the country has cultivated with the US in the latter’s Global War on Terror. This has seen the Americans build one of their biggest embassies anywhere in the world in Nairobi, one that hosts a major CIA station and co-ordinates humanitarian, diplomatic and military activities for South Sudan, Somalia and the Indian Ocean.
Locally, this money has not only helped retool Kenya’s military and intelligence, it has also helped Kenya roll back the spread of HIV/Aids, TB and malaria, kept thousands on antiretroviral drugs, bought food aid to millions and helped to secure the country’s notoriously porous borders that facilitate transnational crimes.
On the business side, the US continues to run a favourable trade balance with Kenya, primarily due to technology imports and the aircraft orders Kenya Airways places with Boeing. Big US firms like General Electric and IBM are pumping in millions of dollars in new investments.
“The West needs to tell Kenyans the exact consequences of electing Kenyatta and Ruto instead of generalised statements that are bound to be interpreted in different ways and can be used for political gains against them,” said Joseph Kieyah, the principal policy analyst at the Kenya Institute for Public Policy Research and Analysis (Kippra), the quasi-government think-tank.
Kenya’s engagement with the EU has centred around human rights and increasingly regional integration, but over the past few years the bloc’s influence on local economic and political development has been on the decline, partly due to the country’s turn to the East and Nairobi’s reduced dependency on donors.
But the EU still remains Kenya’s major export market and its biggest source of tourists.
In 2011, the EU absorbed 26 per cent of Kenya’s total exports, while also being the largest source of tourists visiting the country. Total exports to the European Union increased by 17.4 per cent in 2011 compared with a 6.4 per cent increase in 2010.
This may be attributed to increased earnings from horticulture and tea exports. In 2011, exports to the UK expanded by 16.2 per cent to Ksh46 billion ($528 million), while exports to the Netherlands rose from Ksh26.8 billion ($308 million) to Ksh32.7 billion ($375 million) in 2011.
The increase in exports to the UK was largely on account of increased exports of cut flowers, tea and beans.
In terms of aid, the EU as a bloc has distributed over Ksh30 billion ($344 million) in the past five years, but the contribution from individual countries is much higher. Sanctions against Kenya from the bloc could hurt the country’s tourism and horticulture sectors as well as the country’s debut $500 million Eurobond, to be issued later this year, investment analysts said.
Domenico Fanizza, assistant director at the IMF, said the agency’s biggest concern was a peaceful outcome so that its programme with Kenya is not disrupted.
Although Kenya has improved its ability to finance its national budget by up to 85 per cent, the country still requires aid, with the West being one of the main sources of assistance, although not direct budgetary assistance.
“Kenya doesn’t really need donors, although it certainly could use donor funds to bolster its development spending, as many emerging economies have demonstrated,” said Shantayanan Devarajan, the World Bank’s chief economist for Africa, adding only some 15 per cent of Kenya’s public expenditures are foreign-financed, compared with more than 40 per cent in other EAC countries.
The level of diplomatic contact between Kenya and the West has been growing due to the longstanding relations built since before Independence.
Kenya, for example, hosts the British Army Training Unit Kenya in Laikipia, the only such programme in Africa, while the United States Army has a military presence in Lamu.
Netherlands is the forwarding ground of Kenya’s fresh flowers and vegetable exports to Europe, one of its key foreign exchange earners and a source of income for thousands of low-income earners. The EU is also negotiating the Economic Partnership Agreements (EPAs) with the EAC to define new trade relations, which again would be affected by sanctions.
In a case of sanctions, Kenya’s progression to middle income status would be halted as the country does not have adequate shock absorbers in terms of domestic resources to function without key imports including food, medicine, steel, edible fats and oils.
The country’s emerging role as a regional hub of financial services, trading and host to multinational companies could also be affected, analysts said.
But other analysts said sanctions may be limited to political affairs because US and European economies will lose out in case of trade sanctions.
By Pamella Sittoni, Peterson Thiong’o, Steve Mbogo and Eric Oduor