Executive, Judiciary studiously oblivious of each other
The court order that was issued on Monday, November 28th, 2011 for the arrest of Sudanese president Omar el Bashir in the event that he should ever come again within the boundaries of Kenya and pursuant to the orders of the ICC, was a most untimely ordinance.
Regardless of its merit on the basis of law and the increasingly thorny issue of Kenya's adherence to the Rome Statute. Despite even the fact that the court proceedings which culminated into that diplomatically awkward ruling had been started over a year ago and shortly after Bashir's visit -- which was in lieu of a profoundly strange official invitation to the new constitution's promulgation ceremony. I still believe that it would have been prudent that the order should in the very least have been held in abeyance through judicial processes in the court.
Such action could have been procedurally facilitated by the State Law Office through technical submissions and petitions to delay the delivery of the ruling in court until the Ministry of Foreign Affairs had squared things out with Khartoum or informed them beforehand of the impending court order. Both in diplomatic terms and in light of the increasingly complex security questions in the Horn of Africa Kenya has shot itself in the foot.
What of the victims?
The importance of the legal proceedings in the ICC on behalf of the victims in Darfur cannot be overstated, the issues are real and most urgent. But these cannot be viewed in isolation for indeed there are other equally if not more grievous and important matters that are not in the ambit of the crimes that the court is currently pursuing but which are directly affected by the course of the ICC proceedings and the subsequent ramifications.
Not in the least amongst these I would assume would be the issue of security for the populace in Nuba mountains and the Darfur region itself and in general the rights of black and Arab minorities in the north and south.
The fact that it has been acknowledged publicly by all parties who were involved in the negotiation and implementation of the Comprehensive Peace Agreement that the acquiescence and co-operation of Bashir was essential to the peaceful resolution to what was one of Africa's and the world's greatest diplomatic headaches, even though the co-operation was grudgingly given at times, is something that cannot be lightly discounted.
What was the Sudan would as a certainty be in far much dire straits were it not for the statesmanship of a now demonized Bashir. In place of the overflowing optimism in the new state of South Sudan the only thing that would have been overflowing in that region would have been blood and tears.
Kenya's wobbly foreign policy
By this order from the Kenyan High Court, which flies in the face of a continent wide political agreement not to carry out the ICC arrest warrants, Kenya stands to lose the shine on its diplomatic cap as a an accommodating player that believes in consensus and fair play while it needs most the support of the region and the rest of Africa with the ongoing military operation in Somalia.
With the recent diplomatic gaffes such as the Prime Minister heading to Israel while the Foreign minister was scheduled to jet off at the same time to diplomatic charm offensives to Turkey and Iran, the loathsome drama of the shabby unravelling of what used to be Kenya's well run and esteemed diplomatic corps continues. There seems to be an increasing frequency of such tell tale signs that Kenya might be biting more than it can chew on managing and balancing its growing foreign relations portfolio.
The simultaneous visits to what are currently inimical states in the international arena and which at the moment are embroiled in a vicious, virulent round in the context of worsening relations, was a tawdry move on the part of Kenya and particularly by the PM. Coincidence or not we flippantly risked alienating countries that have been playing a positive and pivotal role in the stabilization and provision of humanitarian aid to Somalia.
Playing chicken with Turkey ... and Iran
Whatever their secondary motives were, both Iran and Turkey have been consciously bending backwards to allay regional fears of widening of the Somalia conflict into a proxy diplomatic war or military conflict between Muslim countries and the west, the sort of crazy arrangement that invariably demands thousands of African lives as conflict fodder. This they did by making as transparent as possible their dealings in Somalia and by exclusively working with the internationally recognized government in Mogadishu which is the TFG and partially also with the UN mandated AMISOM force.
Before the Al Shaabab situation there have been high powered delegations led by executive heads of government from both Turkey and Iran to Kenya which to the best of my recollection up to this day have not been reciprocated. Now that we are in trouble and suddenly need their clout in the Muslim world, in an act of brazen shamelessness we send over minnows to Turkey and Iran while our PM is next door in Israel being regaled and revelled with hospitality in what is considered by both countries as a belligerent state.
Israel is intrinsically an important and strategic ally of Kenya and this relationship will continue to get stronger in the foreseeable future, but it is nothing short of a dastard case of myopia to ignore, prevent, undermine or under-rate the need for growth of relations between Kenya and Turkey, Iran or any other non-traditional partner states with friendly inclinations.
Of Friends and Foes
As if the diplomatic convolutions are not complicated enough to be shouldered by one poor, contentedly introspective country, Kenya found itself catapulted into another old standing feud in the region this time between Ethiopia and Eritrea. This in the face of an alleged connivance and direct support of the Al Shaabab by the Aferworki government in Asmara.
The diplomatic tiff with Eritrea over its actions in Somalia is still simmering and threatening to boil over. The whole region is now playing a happy cast in an African classic in which the enemy (Kenya) of the enemy (Al Shaabab) of my enemy(Ethiopia) ... is not a friend (Eritrea).
With all these facets of a complex security, political and diplomatic prism in the region, Kenya risks becoming the coalescing agent and focal point for both regional and international interests that might feel aggrieved by Kenya's policies. In effect, the imbroglio in the region and balancing of interests could impel disaffected quarters to take up negative counter-roles to those of Kenya in the conflict in Somalia. Eritrea's alleged actions is the first serious and dangerous signal, that could herald a new chapter of strife not only between traditional enemies but one which could snowball into something far much bigger involving all countries in the Horn of Africa.
NAM went defunct; Kenyan diplomacy in hot pursuit
The growing distrust that Kenya is only a pawn firmly in the hands of the west might grow with the court's ill timed order authorizing the arrest of Bashir. Which further muddles all the efforts Kenya has been forced to put up to rally international support in yet another heave to solve the Somali problem and reinforces a dubious outlook on Kenyan diplomacy. A brand of diplomacy that hitherto had been perceived to be the most unbiased in the region.
If the fissures in Kenya's foreign policy are not urgently fixed it would sound a death knell to what has been painstakingly built over the years. It would in the short term herald confusion in the region and mark a troubling turn of events, confirming the declining trajectory of Kenya that started in the post-election violence in 2008. The gaping hole left would be hard to fill, for despite the complexities of international politics Kenyan foreign policy has since independence been a fairly consistent one that faithfully trod along the lines of the old Non-Aligned Movement and provided a platform for regional co-operation.
As a member of the NAM Kenya's foreign policy in principle was one of being neutral and forging positive ties with all countries that desire mutually cordial and beneficial relations. This is supposed to be done without regard to a country's position in the ideological and political divides in the world and without reference to any other pre-existing bilateral relations. This has been the basis of what used to be the bedrock of East Africa's stability, but given recent events this stability projected across the region by Kenya may not be worth counting on in the future.
Getting it right -- Paranoia is king in Somalia
The waning credibility of Kenya's foreign policy could have been partially behind the flip flopping debacle of the TFG in Mogadishu at the onset of the Kenyan army's incursion, that was launched in light of persistent Al Shaabab aggression and provocation.
The government of Sheikh Shariff had to be strenuously courted and pressured to take a more favourable stance with regard to Kenya's military operations in Somalia, and this was plainly conjectured in the media as stemming from the ludicrous concern that Kenya might be playing a double game that in the end would see the setting up of a strong state-like entity in southern Somalia -- which could only further serve to undermine the central authority of the TFG government.
This is something that for obvious reasons could not have been taken lightly by Sheikh Shariff's government given its already shaky hold in central Somalia and none at all in the secessionist north. It says more about what is emerging as Kenya's stock in trade --shabby foreign policy, than the Somali president's conspiratorial outlook.
Even with Somali paranoia something must have gone terribly awry for Mogadishu to have even seriously considered Kenya's state involvement in such a plot. Despite the direct assurance of the Kenyan government, which has done more than any other entity in trying to reconstitute the Somali state back to it's full stature, power and control of ALL of its internationally recognized territory, the TFG is nonetheless wary of GoK's intentions. Apparently cheap talk has gone viral within the Kenyan government, and Kenyan diplomats are only the latest victims.
Dine the Animists, beg the Arabs
The fact that the court order was given when practically half the new executive branch of the government of South Sudan -- including cabinet ministers -- was in Kenya on a series of training seminars, must have done a lot more than raise a few eye brows in Khartoum. Now that the the Republic of Sudan has kicked out our ambassador and recalled its own, in effect severing diplomatic ties it remains to be seen how the diplomatic row will be resolved. Given past precedents particularly with our awkward, placatory, grovelling attitude to Muslim majority countries we will probably beg ourselves back. We did it with the U.A.E., we routinely do it with Saudi Arabia and given our ongoing exploits alongside the TFG in Somalia it seems we will be doing a lot more serenading, begging and pleading in all sorts of dubious and unpleasant places. States that in less exigent circumstances we would afford to snub into more reasonable diplomatic decorum, are literally having a field day slapping the face off the Kenyan diplomatic corps.
PS: Only a day after I wrote this article on the 29th of November 2011, our Foreign Minister Moses Wetang'ula had -- as predicted and true to form -- begged back the diplomatic ties with Khartoum. Unsurprisingly he contentedly bragged about this minor coup in a glitzy conference with reporters -- as a trailing presidential hopeful such intense focus is dear and rare and he milked it for all it was worth. The Attorney General Githu Muigai, is still coating his shoes with a thick layer of dust, running around the corridors of justice trying to extricate Bashir -- who in theory is a fugitive president -- from the Kenyan judicial jaws
By M. Wycliff
Nairobi,
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