How Kenya rejected America’s ICC plot

By Macharia Gaitho mgaitho@ke.nationmedia.comPosted Monday, March 7 2011 at 22:00

In Summary

* The US cut military aid and imposed travel curbs in bid to seal deal protecting its soldiers

The American government tried for years, without success, to pressure Kenya into signing an agreement to protect Americans who might be wanted by the International Criminal Court.

Documents released by the whistle-blower website WikiLeaks show US frustration that Kenya resisted all types of inducements, arm-twisting and threats to sign the so-called Article 98 agreement.

That is a bilateral agreement by which Kenya would undertake not to hand over to The Hague any American citizen sought for war crimes, crimes against humanity, genocide, mass murder or other crimes of that nature.

Ironically, the US is now at the forefront in pressing the government to accede to ICC trials for key officials facing possible indictment for the post-election violence.

The US is itself not a party to the ICC and has over the past six years waged a worldwide campaign to protect its military forces and civilians from jurisdiction of the international court.

The pressure applied by the US included visa bans against ministers and other officials, cutbacks in military cooperation and development aid; and travel warnings that adversely affected the flow of American tourists to Kenya by depicting the country as unsafe because of terrorism threats.

A confidential October 27, 2005 memo by then Ambassador William Bellamy set out the frustration US was facing: “Despite intensive Embassy lobbying over the past year, and the cutoff of [military assistance], the Kenyan government still resists signature of an Article 98 agreement with the US. Academics, journalists, foreign governments and many Kenyan Members of Parliament regularly reinforce — through speeches and public statements — the GoK’s ‘brave’ stand against USG ‘arm-twisting’”.

The US even expected that the Armed Forces would lobby the government to sign the agreement in order to ensure continued military aid, but finally concluded that there was little that could be done to soften the Kenyan position.

“While APSA (American Service-members’ Protection Act) sanctions penalise the Kenyan armed forces by… cutting back on valuable bilateral interaction between our respective forces, the Kenyan military is loathe to lobby its political leadership. Within the GoK there is No/No constituency in favour of an Article 98 agreement, and little concern over the impact our sanctions are having on Kenya’s defence capabilities. While influential Kenyan Cabinet figures would doubtless be interested in exploring some kind of quid pro quo with regard to Article 98 (lifting the travel warning on Kenya, for example) there is little we can, or should, offer as inducements for signing an Article 98 agreement beyond continuing to treat Kenya as a good and worthy ally.”

Mr Bellamy recounts meetings with senior government officials opposed to the agreement.

A discussion during the run-up to the 2005 referendum with Public Service head and Secretary to the Cabinet Francis Muthaura confirmed that the bilateral agreement was not even on the government agenda.

Immunity agreement

In mid-August 2005, Mr Bellamy tried to press the then Justice and Constitutional Affairs Minister Kiraitu Murungi on the immunity agreement, and “was told there was little chance the GoK would conclude a non-surrender agreement with the US.”

Mr Murungi, however, tried to offer the Americans a way out in the form of an existing agreement covering US soldiers already stationed in Kenya who might fall foul of the law, and “oral assurances from the highest level of the GoK that no USG persons would be surrendered to the ICC”.

According to the memo, Mr Murungi felt this would give the US what it wanted, while sheltering Kenya from accusations that it was succumbing to pressure.

The Americans also examined the possibility of having a high-ranking State Department official meet Attorney-General Amos Wako on the issue, but had little faith in the outcome.

“Ambassador Bolton should meet with Attorney-General Wako but without illusions as to his ability to sway the internal debate. Wako will be aware of the state of play within the GoK, and may provide some additional insights into the GoK’s resistance, but he does not have the standing, or the inclination to break the current stalemate”.

The cable noted that the US legislation (the Nethercott Amendment) which limits financial assistance to countries that recognise the ICC “will soon sharply limit current US capacity-building support to Kenya’s Department of Public Prosecutions, which falls in Wako’s bailiwick,” but still concluded that the A-G would not be able to do much.

The ambassador hoped, at least, that “Wako can be counted on to carry back a strong message from the highest levels of the USG. This would be a welcome addition to the pressure the Embassy has applied these past months”.

Earlier, on June 29, a political officer at the US Embassy had discussed the issue with the then Deputy Speaker David Musila, where he was particularly concerned about a Motion by then Kikuyu MP Paul Muite urging the government not to sign any immunity agreement with the US.

Mr Musila told the American ambassador that the Muite Motion “would almost certainly pass”.