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Kenya’s cynical offensive against the ICJ

Monday, October 11, 2021
By Patrick Gathara

Undermining international institutions comes at a price.

[Patrick Gathara/Al Jazeera]

When he was first elected in 2013, Kenya’s President Uhuru Kenyatta, along with his running mate, William Ruto, was awaiting prosecution at the International Criminal Court. They had been indicted for crimes against humanity in relation to the post-election violence that rocked Kenya following the December 2007 elections. Once in power, the duo set about an ultimately successful campaign using the resources of the state to intimidate witnesses and to frustrate the court into dropping the charges against them.

Now in the final year of his final term, it appears Kenyatta plans to end his tenure the same way he started it: with the country throwing another tantrum on the international arena and trying to bully another international court.

Just days before the International Court of Justice is due to deliver its judgment in a maritime border dispute filed by Somalia, the Kenyan foreign ministry announced the country was “withdrawing its recognition of the Court’s compulsory jurisdiction” declaring it would “no longer be subjected to an international court or tribunal without its express consent”. In doing so, Kenya becomes one of a number of UN member states, including the US, that have withdrawn from the ICJ.

The withdrawal is the latest step in Kenya’s drive to impose its will on Somalia and to prevent international adjudication of the dispute over a narrow 100,000sq km (38,200 sq miles) triangle of sea shelf that is thought to contain significant deposits of oil and gas. After five years of attempts by both to negotiate a compromise, Somalia eventually filed the case in 2014, occasioning a hissy fit from the Kenyatta administration.

In 2019, Kenya recalled its ambassador from Somalia after it claimed the Somali government auctioned off oil and gas in the disputed area at a conference in London, despite the fact that Kenya itself had sold mining licences to international companies in the triangle. The country also threatened to close camps housing hundreds of thousands of Somali refugees and to force them back across the border, warning that “the patience of the people of Kenya is not infinite”. It engaged in a series of actions, including barring Somali officials from entering the country and stopping direct flights from Mogadishu to Nairobi in an effort to arm-twist Somalia into withdrawing the case.

Meanwhile, at the court itself, things have not been going well for Kenya, which in 2017 lost its challenge to the ICJ’s authority to rule on the case on the basis that the two countries had previously agreed to settle the matter out of court. Earlier this year, Kenya refused to participate in the oral proceedings after the court rejected its application to delay the hearings due to the COVID-19 pandemic. This was after the ICJ had granted three previous requests for delays that held up the case for more than a year.

The desperate moves to stop the case going forward have been perhaps an indicator of the weakness of Kenya’s case. Clearly, Somalia seems the more confident of the two about its prospects at the court, which is expected to hand down a verdict on October 12.

Kenyatta seems to be dusting off his playbook from his battle with the ICC, where he made history as the first sitting head of state in the dock. At the time, Kenya was engaged in a cynical effort to get the UN Security Council to defer the prosecutions, threatening to withdraw from the Rome Treaty that set up the court and trying to engineer a mass walkout by African countries, accusing the court of race-hunting.

This was coupled with a campaign at home to find and silence prosecution witnesses and withhold cooperation with the court, which led to the collapse of the cases. The campaign against the ICC was peppered with half-truths about the nature of the prosecutions undertaken by the court (many of which had been initiated by African nations), unsubstantiated claims that Kenyan authorities were conducting investigations into Kenyatta and Ruto, and falsehoods about the Kenyan constitution not allowing the prosecution of the president, which it most clearly does.

Similar efforts have been launched against the ICJ. There have been claims by Kenya that the presence of one of the ICJ’s 11 justices, Abdulqawi Yusuf, a former president of the court and a Somali citizen, on the bench would necessarily bias the case. Further, an alarmist and patently false narrative has been propagated in the Kenyan press and on social media that a Somalia win would effectively render Kenya a landlocked country.

But perhaps most pernicious is the amoral, cynical and transactional direction in which Kenyatta has driven Kenya’s relationship with international institutions. When facing opposition to his ICC machinations at home from organised civil society, at the UN General Assembly his administration was one of the few which opted to vote against a historic resolution recognising and protecting the role of human rights defenders.

At the African Union, not only has he undermined the consensus against impunity for public officials, but he has also cynically been pushing the case for Israel to be accorded observer status, despite its oppression of the Palestinians. And with the ICC and ICJ, he is exporting his contempt for domestic courts when they do not give him what he wants.

In the end, undermining international institutions comes at a price. The obstreperous performances at the AU, UN and The Hague fractured many relationships that have taken (and will take) years to mend. Further, flawed and limited as the international order may be, it does provide an important framework for holding states (and the elites who run them) to account and for resolving disputes between them without resort to a dictatorship of the strongest. By limiting state action, international institutions help to entrench international law and norms that can protect not just states, but, more importantly, vulnerable human beings within them.

Patrick Gathara is a communications consultant, writer, and award-winning political cartoonist based in Nairobi.


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