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A woman walks past a campaign poster for Ralia Odinga. (Siegfried Modola / Courtesy Reuters)
As Kenyans go to the polls, observers are bracing for a replay of the country’s horrific 2007 presidential elections, which produced a wave of ethnic violence that killed more than a thousand people and displaced over a half a million. The violence was even more traumatic given that at first things had seemed to be going well. Kenyans had voted peacefully and in great numbers. When it became clear that the incumbent, Mwai Kibaki was losing, however, he rigged the count and declared himself president. Public frustration awakened long-standing latent ethnic tensions. The conflict, which lasted a week, eventually ground East Africa to a halt; it is thought to have cost the Kenyan economy more than a billion dollars. Most of those who spearheaded and perpetrated such violence have yet to be held to account.
There is no telling whether today's election will have such disastrous consequences. Polling indicates that the contest is far too close to call. In all likelihood, the first round of voting will lead to a runoff election on April 10 between Raila Odinga, the current prime minister of Kenya’s hastily-constructed unity government, and Uhuru Kenyatta, Kenya’s deputy Prime Minster and the son of Kenya’s first president. The tightness of the race bodes ill; it is unlikely that either side will be able to score a quick victory, and it will not take much vote rigging to influence the election’s outcome. The losing party is virtually certain, therefore, to contest the results. Some violence, in other words, seems all but assured. The question is how long it will last, whether it will spread nationwide, and how many people will be displaced, injured, or killed.
Adding to the tension is the International Criminal Court’s (ICC) indictment of Kenyatta and his running mate, William Ruto, for crimes against humanity during the rioting in 2007. The ICC move was met with outrage in Kenya. The Kikuyu and Kalenjin tribes believe that the court has unfairly targeted their leaders, to which Kenyatta and Ruto belong, and ignored the role played by the Luo and other tribes. Indeed, Kenyatta and Ruto, along with two co-defendants, are the only Kenyans who have been charged for the 2007 violence. This fact might be contributing to Kenyatta’s popularity.
But popularity aside, as Kenyan media and civil society groups have noted, the election of a person indicted by the ICC would inevitably dampen foreign investment, diminish the ability of donor nations to engage in security sector cooperation, hinder a range of foreign aid projects, and potentially subject the Kenyan public to rule by a distracted or pariah president. Moreover, it could bring U.S.-Kenyan relations to a dead end. That would be a shame: Kenya is a vital regional hub for foreign aid and commerce, and is an increasingly important partner in U.S. counterterrorism efforts, despite concerns that the U.S.-funded Kenyan troops in Somalia have not taken sufficient steps to protect civilians during military operations.
Of course, all these matters must be left to the Kenyan voters’ discretion. It is not in the United States’ interest to attempt to influence the vote. The U.S. ambassador and his European colleagues have mostly refrained from endorsing or opposing particular candidates -- which is good. In the meantime, the United States should start preparing an appropriate response to each of the three scenarios that could result from the poll.
Given Odinga’s slight lead in the polls, it is remotely possible that he could win a credible first-round victory or triumph in a runoff. Although unspoken, that would be the United States’ preferred option, and would allow Washington to go on with business as usual in Nairobi.
In the case of an Odinga victory, however, the United States would have to be careful not to celebrate too quickly. During the 2007 election crisis, the State Department prematurely congratulated Kibaki on his electoral victory, despite widespread allegations that he had rigged the vote. State’s interpretation of the Kibaki win as a fait accompli -- coupled with the refusal of the International Republican Institute (an American election monitoring group) to release exit polling data that suggested an Odinga win, allegedly at the insistence of the American embassy -- was read in Kenya as a signal that the West intended to ignore any crimes committed by its preferred candidate. That fed Kenyans’ feelings of panic and helplessness.
An all-too-eager show of support for Odinga could easily backfire again. Instead, the United States should signal its wholehearted commitment to the integrity of the Kenyan electoral process and the rule of law by supporting a swift judicial review of any allegations of irregularity. Comfortingly, in a recent Gallup poll, a stunning 92 percent of Kenyans said that they were confident that their country’s electoral board would be able to manage the elections. Approval ratings for Kenya’s courts were almost as high. Moreover, in a February 5 YouTube address, U.S. President Barack Obama emphasized the world’s commitment to supporting the Kenyan courts’ role in determining the outcome of any challenge to the elections. For all its drawbacks, a period of uncertainty and delay would not be nearly as dangerous as the appearance of favoritism.
Although a Kenyatta win would be disappointing for the United States, it need not precipitate a crisis. The idea that diplomatic ties would be immediately severed and Kenyatta instantly thrust into the same category as Sudan’s president, the infamous Omar Hassan al-Bashir, is absurd. Certainly, the ICC indictment is a stain on Kenyatta’s character, but it is not a conviction. As long as a President Kenyatta complied with the trial, it would be in the United States’ interest to treat the defendant as innocent until proved guilty. In other words, if Kenyatta wins the elections, the United States should accept the will of the Kenyan people and -- after the inevitable accusations of rigging have been successfully managed through a Kenyan-led electoral board investigation, a recount, or a court trial -- declare readiness to continue regular diplomatic and financial cooperation with the new administration.
For his part, Kenyatta should embrace the opportunity to present himself to the ICC. (And he has promised the appear at The Hague, perhaps hoping to position himself as a postcolonialist “martyr” à la Robert Mugabe.) After all, as long as he is elected by a plurality of Kenyan voters in a credible polling process and remains popular with a majority of voters during his trial, and as long as Kenya stays peaceful, democratic, and economically prosperous under his leadership, an ICC conviction would be harder to secure. The ICC has struggled to establish credibility in Africa due to a lingering perception that the ICC has disproportionately targeted African leaders. (So far, all of 30 of the people the ICC has indicted have been African, including Bashir, the architect of the Darfur genocide; and Joseph Kony, who used child soldiers to butcher thousands of Ugandan villagers. Americans can’t be indicted, because the United States is not a party to the Rome Statute, which gives the ICC its authority. Not a single European has been indicted.) The arrest and imprisonment of a purportedly legitimate head of state would send shockwaves through Africa. The roar of protest from the African Union alone would be deafening, and could precipitate a rash of defections from the Rome Statute: the worst possible outcome for the ICC. Even removing just Kenya from the Rome Statute would be a long, arduous and uncertain process -- for The Hague and for Kenya.
The Obama administration should be wary that, even if Kenyatta cooperates, he will try to inflame public opinion against the ICC. If governance suffers because he is standing trial in The Hague, Kenyans could very well be pushed to blame the ICC instead of Kenyatta. That could present a real political problem for The Hague. To preempt it, the ICC should make a conciliatory gesture to neutralize public anger. For example, the ICC is already considering postponing the start of Kenyatta’s trial. He is currently scheduled for an impossibly difficult appearance at The Hague on April 11, the day after the runoff election.
Of course, the pressures of governing cannot become permanent excuses to delay proceedings. If that starts to happen, the United States should begin by expressing great surprise and concern over Kenyatta’s hesitation to defend himself and secure his own acquittal. After that, it would have to carefully assess the Kenyan public’s mood. If Kenyatta remains popular and is effectively governing the nation, patience is Washington’s best tool. If he is starting to decline in the polls and the country is drifting, Washington would be able to set specific “red lines” for non-cooperation with the ICC. Those could lead to sanctions. As he falls from grace at home, meanwhile, Kenyans might well become more receptive to the possibility of an ICC conviction.
On a positive note, all this means that, as president, Kenyatta would have every reason to govern Kenya well: popularity is his best defense against The Hague.
An overwhelming electoral victory that allows Kenyatta to simply shrug off the ICC is the least desirable, and probably the least likely, outcome of the Kenyan elections. The pressure Kenyatta faces to comply is simply too tremendous. Kenyans treasure their standing as an African success story. The inevitable comparisons to Libya, Sudan, and Zimbabwe that would follow if Kenyatta dodges the ICC, would sting the public’s sense of pride and threaten Kenya’s economic and regional ambitions. The impunity enjoyed by Kenya’s political class is blatant but unlikely to extend to such matters of national interest.
But say Kenyatta does decide to dig in his heels. The international community’s options would be limited. Kenya is not aid-dependent and provides valuable services in return for the help it does receive. Suspension of assistance would thus be a hard political sell and would have terrible consequences. For one, more than half a million displaced Somalis are settled at the Dadaab refugee camp alone. Kenyatta could use Dadaab -- and, more broadly, Kenya’s much-valued willingness to prosecute Somali pirates and host over a million refugees from the Horn within its borders -- as a trump card. He could boot the pirates out of Kenya’s jails or threaten to close Kenya’s borders during the next food crisis. In addition, Kenyan troops are a major component of the African Union peacekeeping mission in Somalia, AMISOM. Kenyan troops are already accused of multiple human rights violations in Somalia, and if international opinion places Kenya’s commander-in-chief on a par with Bashir or Mugabe, the United States would have a difficult time funding that mission. Indeed, falling out with Kenya would upend the entire US counterterror strategy in the Horn.
If it has to, though, the United States can use AMISOM to its advantage. Participation in AMISOM is a plum. For example, Uganda’s rotations through the mission over the past five years have helped it professionalize its entire army on the United States’ and Europe’s dime. Ugandan soldiers have earned more than ten times their normal salaries in the process. Kenya’s soldiers, too, and the mission is a hit with the Kenyan public. Meanwhile, the Kenyan contingent has been tasked with protecting the strategic Somali port city of Kismayo from al Shabaab, which has effectively allowed Nairobi to annex a good portion of southern Somalia, control of which is central to Nairobi’s ambitions to develop the port of Lamu. The threat of being booted out of AMISOM would be a sharp sting to Nairobi.
It could also spell the end of AMISOM, but that might not be as bad as it sounds. AMISOM has been credited with turning the tide against al Shabaab, but its presence is rapidly becoming problematic. Somalis are angry that Ugandan and Burundian soldiers are making upward of a thousand dollars a month to perform what ought to be Somali duties (Somali soldiers make a hundred dollars a month -- when they are paid at all). Even more worrying, the mission is quickly being perceived as a vehicle for the Ethiopian and Kenyan occupation of Somalia. Kenya’s ties to Somalia’s Ogadeni clan are especially problematic, as are early indications that the Kenyan-backed leadership of Kismayo intends to resist the efforts of the new Somali Government in Mogadishu to exert its authority over Kismayo’s lucrative port. Yanking American funding away from Kenyatta’s troops would send a necessary signal that the AMISOM mission is neither invulnerable nor permanent.
Depending on its outcome, Kenya’s election could have difficult implications on the country’s ties with the United States and Europe. But the winner is less important than the process. If Kenya’s elections spark only limited violence, complaints about the outcome are handled in an orderly manner in the courts, and if the international community respects the outcome of the poll, Kenyans could regain some of their confidence in the democratic process and in their own capacity to resolve difficult political issues peacefully. That is the prize that these elections could deliver. And it would be well worth the price of patience and careful diplomacy with Kenyatta, or whoever wins.