Kenya’s slippery slope towards authoritarianism

With a contested election followed by repressive actions against civil society, are we witnessing the first major signs of an authoritarian Kenya?

These past two weeks in August, Kenya has dominated headlines coming out of Africa for two major reasons. One: the general election, which saw a tense few days, with accusations of rigging and fraud loudly versed by the opposition, but with a result that saw the incumbent Uhuru Kenyatta emerge victorious. Two: Almost immediately after the result was announced, a move by the ruling government to dismantle two of Kenya’s leading and most active civil organisations, the Africa Centre for Open Governance (AfriCOG) and the Kenya National Human Rights Commission (KHRC).

What is crucial in understanding both of these headlines is the speed with which the second came after the first and what that might mean for Kenya’s future. With regard to Kenyatta’s election win, it is hard to make any real judgement based on what evidence we have. 

The build-up to the election was one fraught with tension that threatened to boil over into violence, such as that which took place in 2007, after elections resulted in post-election violence that killed over 1000 people. And so, the world watched expectantly as Kenyan electoral officials assured the public that vote rigging, under the new electronic system was not possible, even as the body of the electoral board IT chief was found dead with signs of torture. Nevertheless, voters took to the streets in largely peaceful lines to make their voices heard.

The result was one that international observers say was legitimate with few signs of credible fraud. Almost immediately, the opposition claimed to have such evidence and is now seeking to challenge the government victory in the Supreme Court. 

What is crucial is that legal processes are being observed (so far) by the opposition, although this same route brought them only more defeat after the 2013 elections. Whether fraud took place or not, government moves following the election give cause for concern.

The first steps: an end to civil society

Thus, we come to the second headline: the government’s attempt to deregister two leading civil society organisations. Earlier this week, the NGO Coordination Board advised the Directorate of Criminal Investigations to shut down the organisations, freeze their assets and arrest their directors over allegations that they were operating illegally.

The move immediately sparked backlash from civil society and NGOs, Kenyans and the international community. Yesterday, police raided the offices of AfriCOG in a move that was allegedly without legal justification.

The bottom line of such actions is extremely worrying: unlike neighbouring countries such as Ethiopia, Eritrea, Uganda and South Sudan, Kenya has always represented a progressive stance in East Africa. Yes, in more recent years, there have been curbs to press and political freedoms, but nowhere near the scale of say, Burundi and Ethiopia.

Yet this audacious move, so soon after a general election that is still being contested, is perhaps a prediction of what moves the ruling administration may take over the course of the next term of office (should the opposition challenge fail, of course). 

Similar situations in repressive countries usually start with the suppression of civil society and political opposition. Next comes the press. And finally, there is virtually no one left to openly criticise an elected government. From there, it’s a slippery slope in which the word elected usually disappears quickly. And it is nothing new for Kenya, having suffered through over two decades of authoritarian rule by Daniel Arap Moi in the 80’s and 90’s.

For now, these moves have been halted by a judiciary that is showing it can still exercise some power independent of the government. But for how long, no one knows. And whether worse is to come, we can only wait and watch.

The ICC is at the precipice - it is Africa that will decide which way it goes

 As South Africa backs down from its threat to leave the ICC, what does this mean for the future of the Court?

It's been a hard-last year for the International Criminal Court as a coalition of nations, nominally led by South Africa have announced their withdrawal from the court, leaving it on shaky ground. That could all be about change however, as South Africa recently halted all moves to leave, giving the Court some breathing room. But it will have to work hard to shore itself up.

In the 15 years since its inception, 2017 is arguably the most crucial year for the International Criminal Court. It is in this year that its fate will really be decided. Whether that is to continue its mission to gather more states behind the Rome Statute and fight the good fight of international justice, or to fall in with the legacy of the League of Nations, that remains to be seen.

What is clear, is that if it wants to be the former, the Court needs to make a decisive demonstration that it can evolve from only tackling African problems to tackling global ones. It needs to show that it can be a force for global justice. Needless to say, it requires the member states support to do this, but with South Africa now having backed down from their bluff on withdrawing, perhaps we can start to see a shifting attitude in the commitment that states show to the ICC. At the very least, a recommitment is a sign of unity, something that everyone can get behind.

In the hands of Africa

It is interesting that the future of the Court lies in the hands of Africa. Certainly, a mass African exodus would at the least shake the foundations of the court, and at the most, crumble it all together, especially considering that, since its beginnings, it has only prosecuted Africans.

Therein lies the problem. On the one hand, it is easy to see why the ICC goes after African war criminals. The continent is sporadically ravaged by civil war and stability in the last 15 years has been rare. This perpetual state of war that many African nations such as the DRC, Sudan and CAR seem to find themselves in is a breeding ground for those characters that adhere to the perfect stereotype of the war criminal. Furthermore, it is the lack of, or failings of legal infrastructure and transparency, and a malignant problem with corruption that means that many of these states must turn to the ICC to deal with these war criminals. In short, it instigates the perfect environment for the Court’s purposes.

However, on the other hand it is easy to see this from an African perspective. Although Africa has its fair share of brutal war lords who commit crimes against humanity on a daily basis, so does the rest of the world. There are plenty of other conflicts going on in countries that are member states.

But it is not just about the lack of focus on other regional areas of the world. There are other reasons for why some (I'm not only referring to the greedy African dictators who see the ICC's ability to prosecute them as a threat) might feel that the ICC is not for Africa.

African solutions

There is a saying in Africa that is catching on: African solutions for African problems. The problem is not just a court situated in Europe that until recently solely targeted Africa. It is that sometimes the western models of the ICC clash with the culture systems of Africa. From that perspective, it’s easy to see why the proposed Malabo Protocol, which ventures the idea of combining the two current African courts into an African version of the ICC, is popular with some, and not just with the sitting heads of state who, under the current proposal, have immunity from prosecution.

It would provide a court that caters to African needs, customs and culture and provides African justice. Its sole ‘one continent’ jurisdiction would give it the focus to concentrate on African cases, and this, combined with other factors like location (not having to travel to a whole other continent), language and concentration of members might help it to save on costs or increase funding.

In a perfect Africa, the Malabo Protocol, with some tweaking (i.e. removal of the immunity clause), could be a good solution. But, in a perfect Africa, there would be no war criminals. Alas, as it stands, many, including Africans, are skeptical about the effectiveness of an African court. How could it function free of corruption when corruption reigns in so many other sections of African politics? How would it rid itself of the agonising pace that bureaucracy in many parts of Africa seems to move at today? It would certainly be an uphill battle to make a success.

A global perspective

The concept of the ICC is sound, and it has shown itself to be effective in the past. But in the face of its latest challenges, it will need to do everything it can to survive. This includes demonstrating to Africa that it is prepared to see out war criminals in other parts of the world, something it took a step towards doing when it opened a preliminary investigation in Georgia relating to war crimes in the 2008 South Ossetia conflict.

With South Africa stepping back from its campaign to leave the ICC, and taking a few African nations with it, things are looking up. If 2017 goes its way, it can get back to trying to recruit more states to get behind the Rome Statute. But it must be ready to evolve, to look to new horizons and to expand how it can deal with different cases from different cultures all over the world. It must also look to new methods to enforce help from member states, be it for obligations or funding. If it can show that it is setting these goals, then it might just evolve into a global force for justice.