Kenyatta-Trump Meeting: The 'Big 4'- AGOA Conundrum

By Muthuma Njenga

President Kenyatta is scheduled to meet his counterpart POTUS Donald Trump at White House, Washington on Monday 27 August. The much anticipated and hyped meeting presents a chance for the two head of States to formally engage for the first time since the election of Donald Trump, with discussions ranging from trade to security issues. The visit maintains its traditional skewed development nature: Kenya seeking to get more funding (aid) in its 'Big 4' development programmes and regional security initiatives (Somalia mission). Kenya will also be seeking to maximize on preferential trade deals and opportunities and signing new ones. This comes at a time when US and China are locked in tariffs confrontation which could lead to a trade war, in this scenario Kenya proves to be an important pawn if there were to be a trade war between the two global economic giants, owing to the fact that Kenya is the economic gateway to the eastern region of the continent.

Trade discussions are expected to stretch to Africa Growth Opportunity Act (AGOA), where the US is mulling on replacing 18-year multilateral program with preferential bilateral programs with respective African states, Kenya being fronted as one of the first States to benefit from the new program. The ministries of foreign affairs and trade and industrialization are keen to clinch the deal which has its shortcomings and poses a threat to 'Big 4'.

President Uhuru Kenyatta. Picture courtesy 

Under manufacturing pillar, Textile and leather industries are key sub-sectors which the Kenyan government want to revive. Their revival terms and solution has been easy: reduce inflow of cheap second-hand clothes into the country. Prior to the Big 4, EAC head of States had sought to revive the textile industry in the region. They directed ministers of trade to draft regulations to guard local textile and leather products back in 2015. The ministers presented a draft policy document whose main recommendation was a joint restriction on imported second hand clothes and shoes. The draft policy was adopted unanimously and was set to be implemented by 2018. However only Rwanda took the leap of faith and courage by slapping imported second hand clothes and shoes with the agreed 25% EAC joint tariff. This causing a possible trade confrontation between Rwanda and US (which benefits highly from exporting second hand clothes), where US threatened to withdraw AGOA privileges from Rwanda.

Kenya and its two counterparts Uganda and Tanzania choose to stick to a 'pragmatic' policy of wait and see, and eventually 'chickened out' of the agreed tariff proposal. Defending Kenya's move former industrialization CS Adan Mohammed cited effects of the burn to importers and entrepreneurs of mitumba, and also considering the ultimate consequence; Kenya losing the AGOA privileges where it benefits greatly by exporting textile and apparels products. which are very valid justifications, but do not offer a long-term solution to the crippled local textile and Leather industries.

The Kenyan delegation will be faced with a great task of balancing between AGOA and Big 4. On big 4, they will seek funding to revive the local textile industry, and on the other hand the Kenyan delegation will have to appease the US delegation by caving in on mitumba restrictions so as to clinch the new bilateral deal, with the latter likely to carry the day. We might gain one and loose the other but we will certainly, never gain both.

Muthuma Njenga

International Relations Student

Technical University of Kenya

#ICC: The demise of State-Referral? (Part II)

Last week we examined in an introduction, the continued withering of the state-referral technique of triggering the ICC jurisdiction, This week we continue by exploring further why states are now not ready to refer themselves to the Court. William Schabas, the criminal law guru, in an edited volume (The International Criminal Court and National Jurisdictions) views the state-referral technique as a 'trap for the court'. He writes: "If a State refers a situation against itself, that is, against its rebels, in the context of a conflict, it is doing so with a result in mind." He argues that for a state like Uganda, the result involved withdrawing the threat of prosecution in exchange of something. As pointed out in the previous posting, state-referrals have been used by governments to deal with dissidents and in the cases of Uganda and CAR, rebels that fought the government. It has also been argued that this mode of referral was also used by governments to pass responsibility to another party, and in this case the ICC, under the excuse of being willing but unable to prosecute international crimes. 

All the eight cases/situations before the ICC are all African in nature. This has been interpreted in various quarters but mostly in Africa as an affront to Africa's sovereignty while others have argued that the ICC is targeting Africa and Africans. Since the last state-referral in December 2004, there have been no further referrals pursuant to article 14. The UN Security Council referred the Darfur situation to the ICC in march 2005 while other cases have been initiated by the Prosecutor's proprio motu mechanism. States have been encouraged to assume obligations on crimes of international nature committed in their territories. States are more and more viewing the state-referral as a 'trap' by the ICC. When the African Union (AU) adopted a Resolution regarding the International Criminal Court in October, 2013, it was a statement that no other African country will refer itself again to the Court. At the nascent stages of the ICC, state-referrals gave the Court credibility. With the seemingly geographical targeting, state-referrals will wither.  

States now view the self-referral method as selling its sovereignty to an external party. When Kenyan legislators in 2013 voted to withdraw from the ICC, they did so in an act of defiance. Kenyan President Uhuru Kenyatta and his VP William Ruto face criminal charges before the court. The legislators just like the AU resolution, saw the ICC as targeting Africans and infringing on their sovereignty. It looks unlikely that another African or indeed any other state party to the Rome Statute will refer itself to the ICC in the new future. Regardless of the imminent demise of state-referral technique, the ICC is facing many other challenges mostly on its credibility. Many have questioned its selective method of cases while at the same time it not initiating investigations in cases where crimes against humanity, war crimes continue to be carried out. The Court needs a reevaluation of its mandate, legality and its future.   

#ICC: The demise of State-Referral?

The International Criminal Court is a Court of last resort. The Court is a permanent institution with powers to exercise its jurisdiction over persons who bear the greatest responsibility for crimes of international concern. Conscious of the history of criminal acts against people, the world envisaged to repress such crimes through the creation of a permanent criminal tribunal. The atrocities committed are now monitored by the ICC by bringing the perpetrators who bear the most responsibility to justice. Even with the legal backing, the ICC has faced challenges on the question of cases it brings to book and the situations it omits. Equally, the ICC has had its detractors as well as proponents. 

The Court's jurisdiction can be triggered by three ways. The first is the state-referral or the self-referral, the second is through the UN Security Council referral and the last is through the prosecutors own volition also referred to as proprio motu. Of particular interest, we shall look at the 'self-referral' or 'state-referral' technique of triggering the Court's jurisdiction. Article 14 of the Rome Statute of the International Criminal Court allows a State Party to refer a situation, including crimes committed within the state's own jurisdiction, to the ICC Office of the Prosecutor (OTP) for investigation. There is no doubt, this mode of referral has had controversies among legal scholars. It is worth noting that of the eight situations at the ICC, only the first three were state referrals. It has been argued, rightly so, that self-referrals are inconsistent with the independence of the Court and its complementarity principle. Others have argued that state-referrals have been used by governments to fight oppositions in their countries. The initial referral to the ICC was the Uganda self-referral in 2003. The government of Uganda referred the situation in northern Uganda where atrocities were being committed by the Lord's Resistant Army (LRA). In March 2004, DRC also referred the situation in the Ituri region in Congo to the Court. And in December 2004, the OTP received another self-referral from Central African Republic. Self-referrals are well within the confines of the complementarity principle in Article 17.  Article 17 on admissibility of cases, points out that a case is admissible only when a state is unwilling and genuinely unable to prosecute a case. 

Are we seeing the demise of state-referral?

We continue from here in a subsequent posting.....

 

Why Tanzania is being excluded from the EAC

After posting a comment on my Facebook page on Tanzania's exclusion from the East African Community, one of my friends quickly reminded me of what has become a common phrase that "Tanzania is dragging its feet and we shall move on without you". Well, the threats are coming to fruition, with the rapid rise of "the coalition of the willing" of Kenya, Uganda and Rwanda and most recently South Sudan. The coalition of the willing is a phrase that has been coined to refer to the commitments of Kenya, Uganda and Rwanda to go it alone without Tanzania and Burundi. See my previous analysis on EAC woes here.

Having bilateral or for this case, trilateral meetings between and amongst states within the East African Community setup is not a problem. The Treaty of the EAC however, in Article 6 on the fundamental principles of the Community, is governed on mutual trust, political will and sovereign equality; peaceful coexistence and good neighborliness; and peaceful settlement of disputes. What Kenya, Uganda and Rwanda are doing is right pursuant to their national interests but not within the spirit of the Treaty. The Treaty establishes key organs which aid the running and operations of the bloc. These include; the summit, the council, the coordination committee, sectoral committees among eight other institutions. The summit which is composed of the Heads of States meet at least once a year to map and discuss important issues concerning the community. The recent meetings by the heads of Kenya, Uganda and Rwanda dubbed as integration summits can be described as a mini summits. Tanzania has now been excluded from these meetings in three occasions now. They first met in Uganda, then in Mombasa and this week met in Kigali. It is no brainer that there is a deliberate attempt to exclude Tanzania and Burundi from "their" affairs.  The coordination committee which is made up of permanent secretaries responsible in respective country's EAC ministry is involved in the coordination of activities agreed by the summit and the council. The sectoral committee is involved in different sectors concerning the community such as infrastructure. The actions by the three countries which were centered on infrastructure should have involved both the coordination committee and the sectoral committee as agreed by the Treaty.

South Sudan has been seeking to join the EAC. This was evidenced by the attendance of Salva Kiir, the President of South Sudan. Article 3 of the Treaty talks about membership and conditions for admitting a new member. In Article 3 (2) states that "The Partner States may, upon such terms and in such manner as they may determine, together negotiate with any foreign country the granting of membership to, or association of that country with, the Community or its participation in any of the activities of the Community. The meeting of the three states with South Sudan could be interpreted as going against the provisions of the Treaty since not all partner states were present when meeting South Sudan even if the subject of discussion wasn't on membership admission. 

Speaking in Parliament yesterday, Tanzania's East African Cooperation Minister Samuel Sitta threw spanner into the works when he said Tanzania's cooperation with DRC and Burundi was feasible. Mr. Sitta went on to say that Dar could divorce itself from the community. Methinks that he was just trying to be cynical whilst trying to flex Tanzania's muscles. Tanzania and Rwanda have had simmering tensions ever since President Kikwete called for Kigali to negotiate with the rebel outfit FDLR. Tanzania went forth to send her troops as part of the UN intervention brigade to DRC to help neutralize armed groups in the Eastern part of DRC. This did not auger well with Rwanda's president Paul Kagame. Tanzania has also been carrying out a nationwide operation to weed out illegal immigrants with many Rwandans falling victims. This also heightened the tensions.

Tanzania remains an integral component of the East African Community and a reliable partner. With Tanzania sharing a border with all the other four states, its influence remains very important.

Misinformation is EAC Integration's biggest Hurdle, not Tanzania

Nico Minde

Tanzania has occasionally been accused as a stumbling bloc to the efforts of greater and deeper integration of the East African Community. Detractors and doomsayers have gone as far labeling Tanzania a sympathetic and closer to the Southern African Development Community (SADC). A new term has now been coined by the other partner states to show their solidarity minus Tanzania "The coalition of the willing". This came after the heads of states of Uganda, Kenya and Rwanda and some representatives from countries eyeing EAC membership met in the port city of Mombasa to discuss issues of trade. Tanzanian leaders reiterated that they were not invited. Tanzania's East African Community Affairs Minister Samuel Sitta has slammed this as "an act of isolation" and said that "Tanzania will not be bullied into fast-tracking the integration".  Tanzania's stance has always been a gradual and systematic approach to integration. 

The current tripartite coalition of Uganda, Kenya and Rwanda is contrary to the spirit of the community. But that being said, EAC's biggest hurdle is not Tanzania but misinformation and lack of civic awareness among the people of East Africa. Many a times, the EAC has been labeled an elitist body. That couldn't be far from the truth. The bloc has turned into a boardroom agenda of the Summit, the Council of Ministers and other technocrats. Many rural people do not know what the East African Community is and what its goals are. The integration paths of Economic Union, Common Market Protocol, a Monetary Union and ultimately a Political Federation are virtually unknown to the local people.

Just the other day, angry Kenyans reacted on social media to the alleged chasing out of Kenyans from Tanzania using the hash tag #SomeoneTellTanzania and Tanzanians reacted with a similar #SomeoneTellKenya. Reading the tweets, one could see the level of misinformation among the citizens of East Africa. People know very little about one another. We do not appreciate our differences and strengths. We have become very insensitive to one another. This can only be remedied through thorough civic education. The EAC leadership under the General Secretary Richard Sezibera should aim at incorporating integration studies in the school curriculum, where children are taught to appreciate the values of their neighbors and this will no doubt strengthen the quest for regional integration.    

Uhuru's new Foreign Policy Approach: Pragmatic or Precarious?

Nicodemus Minde

In one of his analysis of Kenya's new foreign policy approach under President Uhuru Kenyatta, Peter Kagwanja remarked that Kenya’s foreign policy is emerging and is reflecting an assertive new Africa-centred approach as the central plank of Nairobi’s regional and global policy. He was writing this in the regional paper, the East Africa soon after President Kenyatta took oath of office on April 9, 2013. Kenya has historically been the 'hub' of the region, as evidenced by the international presence such as the UN offices in Nairobi. 

When Kenya gained political independence in 1963, it took a pure capitalist approach based on the Western model. Her relations with the West were thus strengthened by this. Kenya became the darling of the West and a close ally unlike her East African neighbors, Tanzania and Uganda. Tanzania had taken up the socialist model, Ujamaa, which President Nyerere described as 'Tanzania's unique model of socialism.' Uganda under Milton Obote also pursed a similar path. It was no wonder that Tanzania strengthened her relations with the likes of China, USSR, and Cuba, who were all communist states. Under President Daniel Moi, Kenya's foreign policy was quite pragmatic due to the Cold War at the time. However, Kenya maintained close relations with the West particularly US and Britain. However, since 2002 as my colleague puts it "the Kibaki administration had been keen on expand the pool of international partners. China was one such available partner". This has seen Kenya adapt an Economic Diplomacy Foreign Policy Agenda which focuses largely on trade, bilateral and multilateral business partnerships. 

Uhuru Kenyatta, during his campaigns said he would "look East" upon his ascension to president. Foreign policy commentators and media saw his move was instigated by his indictment at the International Criminal Court for alleged crimes committed during Kenya's Post-poll Violence of 2007/2008. Coupled with the former Assistant Secretary of State for African Affairs Johnnie Carson remark that 'choices have consequences' warning Kenyans against electing an indictee president, Kenyatta administration was without doubt going to pursue a "look East" approach. 

US President Barack Obama, whose father was Kenyan, has skipped Kenya from his latest African tour. He visits Tanzania instead, to the dismay of many Kenyans, who view it as a snob. Obama through the foreign department has explained that he visits Tanzania for economic reasons and most recently the White House explained that the ICC cases facing Kenya’s top leaders are the reason why US President Barrack Obama is skipping Kenya during his Africa tour which kicks off Wednesday next week. Outspoken critic of Uhuru Kenyatta, Makau Mutua reiterated this in his column on Sunday Nation stating that Mr Obama is simply giving Mr Carson’s truism a nod.

President Kenyatta will embark on a tour to Japan, Russia and China in a move seen by many as a counter-check to the Obama snob and reiterating his "look East" approach. Kenyatta has proven to be quite an astute politician who tries to balance Kenya's relations without necessarily being seen as an 'anti-West' leader. He has to trade like this since he still has a pending a case at the ICC.    

Uhuru Kenyatta’s meeting with Kikwete: Just a photo opportunity

Nicodemus Minde

October 24, 2012: Kenya’s presidential aspirant and Deputy Prime Minister Uhuru Kenyatta is meeting regional leaders in a bid to win their backing for the forthcoming presidential elections. Mr. Kenyatta is facing a trial at the International Criminal Court (ICC) for alleged crimes against humanity allegedly committed during the post-election chaos in Kenya in 2007/2008. Uhuru Kenyatta who is known to be super rich with an estimated net worth of $500 million has planned to go against all odds to run for the presidency. There have been outcries from civil society organizations and the ‘international community’ against his running but Mr. Kenyatta remains adamant that he is eligible to run. The eligibility and moral efficacy of his candidature remains a subject of court interpretation. 

Jakaya Kikwete with Uhuru Kenyatta in Dar

Mr. Kenyatta is now meeting regional heads of state in a bid to win their support for his mission to be president. He recently met Tanzania’s president Jakaya Kikwete at Dar es Salaam’s state house. He carried a delegation of government officials and The National Alliance (TNA) party officials. It is believed that they spoke on a number of issues regarding his quest for presidency. It has been reported in various mainstream Kenyan media that he plans to meet Uganda’s President Yoweri Museveni and Rwanda’s Paul Kagame in the coming few days. The meetings have even been termed as ‘Uhuru’s Shuttle Diplomacy’. These meetings have been interpreted to mean that Mr. Kenyatta is winning the support of regional heads of state and that he is positioning himself for leadership. 

The Photo Opportunity

I understand that legitimacy and political authority is sourced and derived both from within and outside. But this been said, Mr. Kenyatta needs to understand that neither Kikwete nor Kagame can salvage his imminent trial at the Hague based international tribunal. Mr. Kenyatta has of late been voracious in attacking the West and the mediator who brokered the peace deal in Kenya, Mr. Kofi Annan. He says that Kenya’s sovereignty should be respected and who leads Kenya should be determined by Kenyans and not any other foreign influences. 

Mr. Kenyatta should first understand that seeking regional support is not a bad idea, neither is it a ticket for his election to presidency. Tanzania’s president Kikwete has two more years left to see off his second term. Mr. Museveni has been heavily criticized for his undemocratic ideals and his hanging on to power. Mr. Kagame on the other hand is said to be destabilizing the region by allegedly financing the M23 rebels in the Democratic Republic of Congo (DRC). Kikwete is facing a difficult political battle in his ruling party and the country in general. These three men are not influential in terms of wielding support for Uhuru’s presidential ambitions. The meeting in Dar-es-Salaam to was just a photo opportunity and will not add any value to Uhuru’s presidential ambitions. Even with the proposed meeting with both Museveni and Kagame, it will count to nothing. The legal process of his imminent trial will definitely hamper his presidential ambitions.    

Breaking: Uganda's Yoweri Museveni warns of Ebola threat

Via BBC News

Uganda's President warns people to avoid physical contact after the deadly Ebola spread to the capital Kampala. Ebola is one of the most virulent diseases in the world. It is spread by close personal contact and kills up to 90% of those who become infected.

http://www.bbc.co.uk/news/world-africa-19048998

There is no need for expanding the ECJ’s jurisdiction

By Nicodemus M. Minde

The East African Court of Justice (ECJ) as it is presently constituted and with its stated jurisdictional reach sufficiently meets the East African Community’s (EAC) integration goals. The EAC envisions an integrated approach to regional development through widening and deepening economic, political, social and culture integration in order to improve the quality of life of the people of East Africa through increased competitiveness, value added production, trade and investments. The East African Court of Justice (the Court), is one of the organs of the East African Community established under Article 9 of the Treaty for the Establishment of the East African Community. The Court’s major responsibility is to ensure the adherence to law in the interpretation and application of and compliance with the EAC Treaty. Based on the EAC’s mission and vision of continuous regional integration on social-political and economic aspects, it is intriguing why there are calls for the Court to expand its jurisdictional reach.

Recently, the EAC Heads of States met in Arusha with a view of expanding the ECJ‘s jurisdiction to also deal with issues of Human Rights and Criminal jurisprudence. The East African Legislative Assembly (EALA) which is the de jure legislative organ of the EAC had also deliberated on expanding the jurisdiction of the Court to also touch on issues of Human Rights and criminal legislations. The drafters of the ECJ intended the Court to function as a regional judicial organ that deals with legal disputes arising from state parties and to ensure the adherence to law in the interpretation and application of and compliance with the EAC Treaty. The functions and duties of this Court can be compared to those of the UN International Court of Justice (ICJ). When the world saw that there was need to develop a permanent international criminal tribunal, they did not expand the jurisdiction of the ICJ but opted to hold an inclusive interstate plenary to draft the Rome Statute which gave rise to the International Criminal Court (ICC). 

The ICC is a criminal tribunal with universal jurisdiction and power to try and punish individuals for the most serious crimes of international concern. The attempts to expand the ECJ’s power to accommodate human rights and criminal legislations can only be interpreted as a political move and not legal as most of the EALA legislators and regional politicians would want us to believe. The pretext used to see the expansion of the ECJ’s jurisdiction is the Kenyan case at the ICC. 

There have been futile attempts to challenge the admissibility of the ICC regarding the Kenyan case. It started with the “shuttle diplomacy” by Kenya’s Vice President who went around lobbying for a deferral of the Kenyan case. The African Union (AU) is on a relentless drive to push for the same. What is astonishing is the lack of understanding and utter disregarding of certain international (criminal) law tenets by a cross-section of local and regional politicians. It is said that a drowning man will clutch at a straw. This is what seems to be happening with the recent quest by EALA legislators and EAC Heads of States to call for the expansion of the ECJ’s jurisdiction. The ICC, which all EAC partner states with the exception of Rwanda are parties to, should work towards promoting and cooperating with it. If there are truly genuine efforts to expand the jurisdiction of the ECJ, then it should be based on candid legal intentions and not misguided political motives.