By : Herbert Awuor
Kenya is at war. But even in declaring the war, President Mwai Kibaki’s administration has displayed a rare dysfunctional trait unique in the community of nations.
This is for the simple fact that armies do not go to war, but countries do. So when Kenya sends its army across an international border on a short notice and the commander-in-chief remains tight-lipped on the incursion, a lot remain to be desired.
Legal challenges facing the Somali campaign, Kenya army’s human rights record, as well as basic facts about Al Shabaab must be scrutinized and the same goes for obvious exit strategies available at Kenya’s disposal.
Firstly, contrary to the rules and customs of war, the declaration of the war in this case came from the Minister in charge of Kenya’s Internal Security!
The legal basis upon which Kenya invaded Somalia has been elucidated as exercising its Article 51 of the UN Charter rights. Still, the government needs to explain to Kenyans and the international community the legal justification and security rationalisation behind the invasion of Somalia. War has a huge propaganda component and Kenyan authorities seem oblivious of this fact.
With the current development in the Principle of Universal Jurisdiction in the corridors International Criminal Court and the International Court of Justice, Kenya must realise that the two institutions can assume jurisdiction in relation to the acts of governments, thus Kenya must act very cautiously and engage the international community urgently.
The Minister for Internal Security cited Article 51 of the United Nations Charter as the legal justification for the war. But a closer scrutiny shows that no such justification exits both under customary international law and even upon a liberal interpretation of Article 51.
The conflicting signals from Somalia further complicate Kenya’s campaign in Somalia. Only an unequivocal statement from Somalia requesting the assistance of Kenya in eradicating the Al-Shabaab menace will do. It must be remembered that when Ethiopian forces invaded Somalia and crushed the Union of Islamic Courts, the same was upon an express request by Somalia.
If no formal request is forthcoming from Somalia, Kenya can try to hinge its decisions on two concepts of international law. The first is the right to self-defence. The second is the right of hot pursuit in international law.
One of the difficulties facing Kenya, however, is that self-defence under Article 51 of the UN Charter is always subject to a supervisory control by the Security Council. Unfortunately, Kenya has no such authorisation.
Third, self-defence is limited to the right to use force to repel an attack in progress, to prevent future enemy attacks following an initial attack, or reverse the consequences of an enemy attack that intends to end an occupation.
Kenya, however, has a better case in basing its actions on the right of hot pursuit in international law. This right is often allowed on the high seas. But this doctrine has been used quite often by countries like Israel and Turkey to justify limited incursions into the territory of neighbouring states.
Kenya has a good claim to state that it is pursuing Al- Shabaab elements that crossed and kidnapped people in Kenya. For Kenya to persuade the rest of the world, a specific time frame must be set for the campaign otherwise it will be a violation of international law.
The other challenge facing the Kenyan army is its past human rights record. While flushing out militants of the outlawed Sabaot Land Defense Force in the Mount Elgon region, the military is alleged to have committed serious human rights violations. Various human rights groups documented cases of summary executions, torture as well as ‘enforced disappearing’ of alleged sect members. The prosecutor of the International Criminal Court has been consistently called upon to investigate these allegations to determine if they fall within its jurisdiction. Much is yet to be done!
But now that the Kibaki administration has made good the threat to take war to the Al Shabaab, we have to assess how the military campaign is being carried out. We must also scrutinise what Al Shabaab really is without resorting to half-truths and outright lies. It is too simplistic to dismiss the Al Shabaab as a ‘terrorist group’ or some sort of dangerous social irritant with a rigid cling to Sharia law.
To begin with, Al Shabaab’s roots have nothing to do with terrorism. The now infamous Shabaab was the armed wing of the Islamic Courts Union, an organisation led by Muslim clerics who, fed up with the disorder and anarchy in Somalia, decided to take on the warlords and impose order.
True, they introduced a fairly harsh version of Sharia law. But whose business is it to tell the Somali, an overwhelmingly Muslim population, what law should govern them? It is within their right of self-determination to decide for themselves how they want to be governed in a community of nations.
What Somalis liked was the fact that when the Shabaab took power in 2006, for the first time there was peace and order in Mogadishu. The streets were cleaned regularly and the extortionate warlords were forced to flee. The Shabaab were the main show in town and the masses were generally pleased.
Then the Americans came around and muddled it all up as they often do. The Bush administration in the wake of 9/11 developed a severe allergy for Islamists of any shape or form. To the Bush administration, the Mogadishu Islamists formed part of the ‘Axis of evil’ and therefore needed to be neutralised.
Unhappy with the Islamic courts’ ascendancy in Somalia, the CIA base station in Nairobi began financing conmen known as the Alliance for the Restoration of Peace and Counter-Terrorism – a group of warlords who assured the Americans they would topple the Mogadishu Islamists. But the flip side of this is that nothing unites Somalis more than a foreign intervention in their country and thus flopped the American dream.
The result of the American policy was twofold. It led to a rise in popularity of the Shabaab while simultaneously giving Jihadists on the run from American airstrikes in Afghanistan a chance to infiltrate the homegrown Somali Shabaab.
Many warned that the Americans were setting the stage for disaster. Newsweek on June 4, 2006, reported that the diplomat in charge of Somalia in the Nairobi embassy Michael Zorick, who was vigorously opposed to the CIA’s approach to Somalia, was transferred to Chad in the diplomatic equivalent of being sent from a posting in Nairobi to the Elemi triangle.
One thing that must remain clear, though, is that there are two factions of Al-Shabaab. There is the Shabaab led by Somali Somalis whose goals are mainly nationalist and which is the group that took power in 2006. Their aim is to capture power in the whole of Somalia and impose Islamic law and order.
Then there is the second group of Al-Shabaab which is heavily influenced and financed by Jihadists from Afghanistan, Eritrea, Pakistan and even America.
This wing of the Shabaab is very unpopular with Somalis and its aims have nothing to do with Somalia. They are fighting in Al- Qaeda’s cause. This is partly what has metastasised Somali conflict from a civil war to war as a way of life.
This breed of Shabaab is making their lives and earning status in society and they are planning all these around conflict. They have no investment and no interest in peace; their profit is earned and their livelihood made from war.
This group of Al Shabaab owes its existence to conflict; so the nebulous and ever-changing causes and the phony fatwas are all engineered to justify their course; war. The greatest enemy of this group is peace and stability.
Given that background, Kenya would be wise to approach the Somalia issue in a highly nuanced fashion. Fighting the Shabaab with a blunt mallet will be akin to responding to a mosquito bite with a hammer and only serves to unite them and to rally the Somali people behind them.
This is particularly worrisome to Kenyans whose foreign policy has never taken this route before. Until the Somalia action, Kenya was the only country in the wider Great Lakes region that had never invaded or been invaded by another.
The Great Lakes is a tough neighbourhood, and because Kenya had also never had a successful military coup, it bucked the trend.
The Kenyan example suggested that it was possible to live in this part of the world without having a military coup; without having to fight your neighbour or to fend him off; and to confine your army to peace-keeping missions in foreign lands, and occasionally fighting heavily armed cattle-rustlers and trouble-makers at home.
No other Great Lakes nation shares that story. In early 1978, Uganda’s military dictator Idi Amin attacked Tanzania, and briefly occupied and trashed the Kagera Salient. Later in the year, the Tanzanians struck back. In April 1979, together with a band of Uganda exile forces, it took Kampala and toppled Amin.
Today the gold medal for the most action in foreign territory goes to the Uganda People’s Defence Forces. It has fought in the Democratic Republic of Congo and occupied its eastern part; it has seen action in the Central African Republic; it occupied parts of South Sudan; and gave a shoulder to the Rwanda Patriotic Army in its war.
The Rwanda army has been in, out, and around DR Congo many times. But lest it is forgotten, part of that started in late 1996 when the DRC army (the country was called Zaire then) in the time of the thieving dictator Mobutu Sese Seko, crossed into Rwanda, shot up a few people, and looted. The Burundi army too, has had an active stint in DRC.
Sudan made one or two incursions into northern Uganda at the height of the war in South Sudan, and backed the rebels of the Lord’s Resistance Army in their futile campaign to topple the Kampala regime. Mostly though, it frequently sent its planes to bomb northern Uganda.
Ethiopia, of course, invaded Somalia in 2006. And, depending on where one sits, has attacked Eritrea, or Eritrea has attacked it.
In any event, between 1998 and 2000, the two countries fought a deadly border war. Deep into the battle, Addis Ababa finally overran the Eritreans in the disputed Badme border area and moved far enough inside to lob bombs at Asmara.
With its Somalia campaign, Kenya can be said to have finally become a true East African or Great Lakes nation. It is no longer a war virgin.
This will have implications for how conflict is resolved in this region. Because Kenya generally kept its army at home and didn’t get involved militarily in regional conflicts, it was the natural venue for peace negotiations.
The Ugandans negotiated peace in Nairobi in 1985. The Transitional Federal Government of Somalia was birthed out of long negotiations in Nairobi.
The end of the war in South Sudan (and the eventual formal independence of that part of old Sudan this year), was also negotiated in Nairobi and Naivasha.
If the carrot, as a means of dealing with conflicts is falling out of fashion in the Great Lakes, and Nairobi is moving away from being the region’s neutral capital, what next?
Well, perhaps we shall see more of the (former Tanzania President Julius) Nyerere’s approach. As the Tanzanians moved towards Kampala in early 1979, back in Moshi where Uganda exile groups were meeting to divide the spoils and form a government, there was in-fighting, bickering, and no agreement.
Nyerere was desperate to have a proxy Uganda government to install in Kampala when his forces overthrew Amin. So he all but had the Ugandan exile groups locked inside the meeting venue in Moshi, and had the keys thrown away until the dissidents agreed on a government. It worked.
Going forward, it seems no country in the Great Lakes can expect to be taken seriously if it does not walk around with a big stick – and use it occasionally.
So as the war enters a new phase, the game-changer is that Al-Shabaab has asked for a truce. Chances are that this is a gambit to throw Kenya off-balance. Equally, President Sheikh Sharif Ahmed’s tirade on Kenyan forces being unwelcome in Somalia complicates the issue further. For sure it is his right and the right of his country to decide who goes to Somalia and for what purpose.
It will, of course, not be lost on Kenyans that the leaders of a country to which they have been so generous – hosting millions of its citizens, allowing Somali to become part of the Kenyan social fabric, spending millions of dollars on the Somali peace process – has turned around and now says Kenyans are unwanted in their territory.
The attitude, however, need not be a deal-breaker. It is an opportunity for negotiations and the hammering out of an agreement acceptable to both sides. Such negotiations would take place within the context of continued joint security operations.
It would be unthinkable for Kenya to leave Somalia with its tail between its legs. Kenya can only withdraw under circumstances of total and complete victory. This implies that the war must be fought from all fronts, and to the very bitter end.
However, if the Transitional Federal Government of Somalia wants Kenya to cease the joint military operation, then Kenya should probably consider doing so if President Ahmed and his government can deliver the following:
First, there must be an end to terrorist incursions and infiltration. For that to happen, there must be no Al-Shabaab within 100 miles of the Kenyan border. That region, stretching from the Indian Ocean to the Ethiopian border, must be stabilised by a self-governing local population, not by some Al-Qaeda-brainwashed warlords in Mogadishu or Kismayu.
Secondly, having secured that region, all refugee camps hosting Somalis in Kenya must be moved there and proper infrastructure, including security, provided for them. In the fullness of time, all must be re-integrated into Somali society. The sustained 20-year export of population to Kenya must be not just stemmed; it must be reversed for the long-term welfare of both nations.
Thirdly, the port of Kismayu, a nest of terrorism since the 1990s, must be taken and put in the hands of a responsible civilian authority. Such an authority must have the capacity to end smuggling and to run the port for the benefit of the people of Somalia, not warlords and international buccaneers in Dubai, New York and Nairobi.
Fourth, the bases used by pirates must be taken over by forces of law. Order and, need be, severe penalties be imposed and enforced to act as a deterrence mechanism on piracy. The penalties should apply not just to the men under arms, but also to the corrupt government officials as well as lawyers and companies in the region who facilitate and/or profit from piracy.
To crown it, the Transitional Federal Government, in an acceptable format, should offer instruments of guarantee of Somalia’s respect for the territorial integrity of its neighbours, particularly Kenya and Uganda.
Finally, as Kenya continues to be critised of waging a highly mechanized war on the rag-tag Shabaab in order to secure its territorial integrity, it must be noted that military objective of the Kibaki administration differs sharply from those of Sudan, Ethiopia, Uganda or Rwanda.
The Uganda-Rwanda mode is a cost-effective model developed from and for guerrilla war. It also ensures that forces sweep and leave no “enemy” cells behind them, and that they master the land and people better. But it has higher civilian contact, hence more casualties, and the risk of human rights violations.
The Kenya model is expensive, but avoids the social and political problems of the guerrilla approach. But if one wants to occupy and hold territory, then one must go the Uganda-Rwanda fashion. This suggests that Kenya’s goal is to engage fast and furious, conquer quickly, hand over to a proxy, and get out.
