Attack will draw West, Kenya closer

The misguided policy concept of “only essential contact” by the West with Kenya can no longer be indulged given Kenya’s geostrategic importance to Africa’s stability.

The cowardly and horrific terrorist attack against innocent civilians at the Westgate Mall in Nairobi will draw Kenya and the West back to their historical close relations. 

It also tragically highlights the need to quickly resolve the International Criminal Court (ICC) cases against President Kenyatta and Deputy President William Ruto that are a politicised distraction from pursuing our common interests with Kenya in protecting international peace, advancing democratic governance and prosperity, and promoting justice and reconciliation. 

US President Barak Obama and UK Prime Minister David Cameron’s early calls to President Kenyatta to offer assistance during and after the attack are clear signals of a shift in policy that will be made more meaningful only with sustained and fully normal engagement unhindered by the ICC.

Kenya’s role in region

Kenya has long suffered from Somalia’s instability and terror attacks by al-Qaeda. The Somali terrorist group Al-Shabaab has taken responsibility for the attack on Westgate, claiming it is in retaliation for Kenya sending troops to Somalia in October 2011, and eventually joining the peacekeeping force, African Union Mission in Somalia (Amisom).

In reality, long before Kenyan forces deployed to southern Somalia and Kismayo, its security was threated from the north. Since the fall of Somali President Siad Barre’s government in 1991, arms, insurgents and terrorists have crossed into Kenya, undermining the security of its citizens and visitors. 

President Kenyatta’s resolve to stay the course in Somalia is fundamentally in Kenya’s interest. Containing insecurity emanating from Somalia has not proven viable over the past two decades.

The best path forward is to continue proactively working in concert with the region to stabilise the Federal Government of Somalia now under elected President Hassan Sheikh Muhamud. 

The US should hold talks with Kenya at the highest level to forge a common approach on Somalia and to coordinate our global policy more generally.  President Kenyatta’s trips to Russia and China should not go unnoticed nor left unanswered by the US. Threats to Kenya’s security are threats to US interests in the stability and prosperity of east and Horn of Africa.

Al Qaeda’s East Africa cell members that planned the terror attacks against the US embassies in Nairobi and Dar es Salaam in 1998, killing and injuring hundreds of innocent Kenyans and many Americans, went into hiding in Mogadishu, Somalia. 

They re-emerged as top commanders of Al-Shabaab, the armed militant wing of the Union of Islamic Courts formed in 2006.  Al-Qaeda was embedded in Al-Shabaab from the outset. Al-Shabaab has always been a toxic mixture of globally oriented jihadists, Somali nationalist and irredentist insurgents, and Mujahideen recruited from around the world. 

Kenya’s geography places it on the frontlines of the international war against terrorism. Kenya’s policies as a democratic society that respects freedom of religion, aligns it with the West and in opposition to militant Islamists. 

Our shared values of openness and tolerance leave all democratic societies vulnerable to terror actions.  The Westgate attack shifts attention to the need for more strategic and intensive engagement with Kenya as a key ally to the US and West.

Moving forward, the US should work closely with Kenya to support the East/Horn of Africa coalition against terrorism. 

It is now time for the West to fully embrace Kenya’s new democratically elected government and respect its institutions. 

Put more plainly, the ICC cases against President Kenyatta and Deputy President Ruto have become a distraction reflected clearly by the need to suspend Mr Ruto’s trial for a week to allow his return home to attend to the Westgate crisis. 

No one believes that in a week the terror threat to Kenya from Somalia will end. Yet, the Deputy President is expected to sit in the Hague for a case the Kenyan people judged with their vote in March.

The ICC’s exclusive focus on Africa has cost it legitimacy as an impartial “international” criminal court.  It is now widely viewed as an instrument of Western foreign policy used against Africans.

The selection of cases has apparently been guided by what former Prosecutor Luis Moreno-Ocampo reportedly described as “low hanging fruit,” meaning targeting African countries and individuals unable to resist the ICC’s jurisdiction.

The ICC has not taken on more “powerful” countries or those protected by the UN veto power of the permanent five.  This politicisation of cases targeting Africa is evident in the failure to mention the ICC in addressing the chemical weapons use on August 21, 2013 in Syria that is responsible for killing more than 1,400 civilians, not to mention the estimated 85,000 to 100,000 or more deaths caused by the Syrian civil war.

The US, as a non-member of the ICC and a powerful member of the UN Security Council, should lead the diplomacy to end the Kenya ICC debacle.  The US needs a strong Kenyan leadership at home and in charge, and it has the  ability to pragmatically navigate the multiple global interests at stake. 

The first best option is for ICC Prosecutor Fatou Bensouda to drop the cases for lack  of evidence.  Already the charges against President Kenyatta’s alleged co-conspirators have been dropped and it is common knowledge that the cases are weak, witnesses have lied, according to the Prosecutor herself, and many are now withdrawing.

The Court has 18 cases opened (from Uganda, Congo DRC, Darfur, Central Africa Republic, Kenya, Libya, Ivory Coast and Mali) and should concentrate it limited resources on cases in countries that lack legitimate national courts and capacity to prosecute, and are suffering endemic crimes against humanity.

Second, the US should mobilise support and work with Kenyan authorities to address the continuing needs of victims of the 2007 post-election violence. 

Mr Moreno-Ocampo did a disservice to Kenya by cherry picking high profile politicians rather than carrying out real investigations to pursue and bring to justice all those responsible for the violence from the most senior politician giving orders to the person that lit a match, raped a woman, or pulled a trigger.  Lacking such evidence, the focus now should be on resettling, rebuilding, and reconciling communities.

Finally, failure to resolve Kenya’s cases quickly can lead to the undoing of the ICC, and our readiness to confront, deter and defeat terrorists.  Already Kenya’s parliament has voted to withdraw from the ICC. The African Union has called for the cases to be turned over to the national courts, and other African countries are contemplating withdrawing. 

Africa makes up 34 of the 121 countries that ratified the ICC and their withdrawal can swiftly and permanently end the ICC’s exclusive and politicised focus on Africa.   The US should side with Africa as a non-member of the ICC.  After all, whose interests are served by the ICC distraction while Al-Shaabab and Al-Qaeda plot more attacks against Kenya?

Jendayi Frazer is the former US Assistant Secretary of State for Africa and distinguishedservice professor at Carnegie Mellon University