Wednesday, 20 August 2014

Can the ICC hold Israel and Hamas accountable for war crimes?

During the early morning hours of July 30th, 2014, Israeli shells bombarded a United Nations Relief and Works Agency (UNRWA) for Palestine Refugees School housing 3,300 Palestinians, killing 15.
According to a briefing by the organisation Security Council Report, the UN Relief and Works Agency for Palestine Refugees (UNRWA) Commissioner, General Pierre Krahenbuhl, stated that the precise location of the school and that fact that it was housing thousands of Internally Displaced Persons (IDPs) was communicated to the Israeli army 17 times including just hours before the fatal shelling.
In addition to the attacks, the UNRWA stated that it had earlier found a cache of rockets at one of its schools in the Gaza Strip, lending credence to the accusation by Israel that Hamas was using these shelters, and they were therefore legitimate military targets.
The continuous shelling of designated UN Shelters and schools by the Israeli army has moved the United Nations Security Council to hold an urgent meeting to address the deteriorating humanitarian situation in Gaza.
In the 23 days since the beginning of the Gaza invasion, the accusations and counter-accusations of atrocities between Israel and Hamas has taken centre stage, leaving the victims of the conflict exposed, without hope for an end to the violence.
On July 25th, the Palestinian Authority filed criminal complaints at the ICC, accusing Israel of war crimes in its ongoing campaign in Gaza, a war whose death toll now includes more than 1200 Palestinians and 61 Israeli soldiers.
It is likely that Palestine will seek a UN Security Council referral of the Gaza situation to the ICC. In cases where crimes that fall within the mandates of the articles of the Rome Statute occur in non-member states, the UNSC is at liberty to make referrals to the ICC as is the cases of Darfur in Sudan, and Libya.
At this juncture, the considerations of the UN Security Council and the probability of referral of the situation to the International Criminal Court become most imperative. The greatest challenge is that Israel is itself not a state party to the Rome Statute.
The Palestinian Authority issued a declaration to accept the jurisdiction of the ICC over Palestine in 2012. Its acceptance of ICC jurisdiction was rejected by the then ICC Chief Prosecutor, Luis Moreno-Ocampo, as he could not make a determination as to whether Palestine was a state as per the tenets of the Rome Statute.
READ: The Situation in Palestine (International Criminal Court)
The challenge facing such a decision by the UNSC lies in both the legal limitations of the ICC and also the political considerations to be undertaken by the member states of the Security Council. As with such deliberations, the matter is likely to take a long and arduous course despite the best of intentions.
Moreover, should such a referral be made, the ICC would be forced to conduct thorough investigations into all parties’ actions, in order to obtain justice for victims of the conflict.
All this notwithstanding, it is clear that there is an incredible humanitarian crisis looming, and both the attacks on UNRWA-designated shelters and the use by Hamas of shelters for storing weapons leave the UN Agency and the IDPs it houses in grave danger.
Both the attack by Israel of designated UNRWA shelters and schools, and their use for weapons storage by Hamas are to be condemned.
The fundamental questions thus remains: while the ICC is intended to act as a deterrent to war crimes, in an ongoing conflict situation, can the ICC adequately provide any sort of deterrent against aggressive forces, especially when the parties involved are not state parties to the Rome Statute?
Moreover, how would the findings of the Court bring justice to those caught up in the ongoing conflict?
At this stage, it is increasingly clear that both Israel and Hamas are actively engaged in what could constitute crimes of war, by attacking designated humanitarian sites and using designated shelters to harbour weapons and militants.
These actions have placed the most vulnerable and unarmed right in the middle of an escalating situation. For this, both Israel and Hamas should be held accountable.
Update: The former chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo, has recently said that Palestine is eligible to join the Court.

Even with the Eastern African Standby Force, reforms are still needed

The Eastern African Standby Force and its accompanying protocols were adopted On 26th June, at the 23rd African Union Summit in Malabo Equatorial Guinea by the Assembly of Heads of State and Government of the Eastern Africa Region
Under the chairmanship of President Paul Kagame of Rwanda, the main role of EASF is seen as fighting the conflict in Somalia, and is expected to have the full support of its various governments.
The truth is, the formation of an Eastern African Standby Force in response to the threat of the Al-Shabaab group is neither novel concept nor unexpected.
The Harakat Al-Shabaab Mujahideen (HSM) group, an Islamic extremist group that seeks to set up an Islamic state in Somalia, was formed as the militant wing of the Islamic Courts Union (ICU), which at the time controlled much of central and southern Somalia.
Since the ICU lost power, Al-Shabaab has waged a relentless war against the then Somali Transitional Government, its successive established regimes and its Ethiopian supporters, with fighting escalating from May 2009.
In 2007, the formation of the African Union Mission in Somalia (AMISOM) under the auspices of the African Union’s Peace and Security Council , as documented in Security Council Resolution 1744 (2007) meant that the troubled Somali Transitional Government now had the support of an AU-led peace keeping force.
Al-Shabaab claimed its first terror attack outside Somali borders in June 2010 in Uganda during the World Cup finals, in which 70 people were killed and several injured. At the time Al-Shabaab threatened additional attacks if Uganda and other AU Countries did not withdraw AMISOM peace keeping troops.
At the time, the AMISOM mission was meant to last only 6 months, a temporary measure intended to support what it was hoped would be a quickly stabilized government. The 6-month deadline came and passed without this being accomplished.
By October 2011, it was clear that the Al-Shabaab group was a bigger threat to neighbouring Kenya after consistent cross border attacks left several people dead. In response, Kenya launched “Operation Linda Nchi” a military incursion by the Kenya Defense Forces into Somalia.
It is this particular act that seems to have refocused Al-Shabaab’s onslaught to Kenya. Since 2011, attacks within Kenyan borders have increased in frequency and intensity, with people being killed in attacks on ‘soft’ targets such as churches, shopping malls, markets and public vehicles. After the recent killings in Lamu the terrorist group warned the government of further attacks.
The decision by Mr Lenku to label the attacks on Mpeketoni as politically instigated and targeted at a particular ethnic community was strange, and also indicative of the distracted manner in which the entire ministry has approached the war on Al-Shabaab.
Make no mistake, Kenya is at war, and the use of the Eastern African Standby Force is an indication that this war is greater than the Kenya government cares to admit. The EASF is likely to provide a succinct “punch” against the forces of Al-Shabaab.  
However, much like AMISOM and “Operation Linda Nchi”, without a complimentary “block” in the internal structures of the concerned nations, terror groups may be able to hit back.
We can visibly see the effects of years of corruption in the police service especially. It is certainly necessarily to thoroughly examine the management of the police service and to extract the elements that hinder its success.

Immunities clause at the African Court of Justice and Human Rights is outrageous

On June 27th at the 23rd AU Summit in Malabo, Equatorial Guinea, the General Assembly surreptitiously adopted draft legal instruments giving immunity for Heads of State and government at the African Court of Justice and Human Rights.
The immunities article (Article 46A bis "Immunities") states that:
"No Charges shall be commenced or continued before the court against any serving AU head of state or government or anybody acting or entitled to act in such capacity or other senior state officials based on their official functions, during their tenure in office."
Most notable about the structure of this particular article is the ambiguity in relation to exactly who is liable for prosecution. In totality, the article gives immunity to just about every senior government official in every government of every member state of the AU.
The clause not only completely weakens the jurisdiction and ultimate purpose of the African Court of Justice and Human Rights, but makes an utter mockery of the entire reason for expansion of the court to include prosecution of individuals for war crimes and crimes against humanity.
Steve Arther Lamony, Senior Adviser - AU, UN and Africa Situations at the Coalition for the ICC (CICC) put it most succinctly:
“This outcome is disgraceful. The principle of no immunity for grave crimes before international tribunals or courts - no matter the status of the offender - is crucial to the fight against impunity and part of the foundation of the Rome Statute of the ICC, which most African states have signed and ratified. African members of the ICC should bear that in mind and not ratify this protocol. Africa should be moving forward in the fight against impunity, not retrogressing!”
Such a move by the AU goes directly against its own efforts, through the Peace and Security Council, to stabilize these countries and bring about constitutional order. There certainly can be no peace without justice.
“At a time when the African continent is struggling to ensure that there is accountability for serious human rights violations and abuses, it is impossible to justify this decision which undermines the integrity of the African Court of Justice and Human Rights, even before it becomes operational,” said Netsanet Belay, Amnesty International’s Africa Director for Research and Advocacy.
Indeed, the very creation and adoption of the clause exacerbates many conflict situations. It gives free reign to perpetrators of grave crimes in the knowledge that as long as they retain power they will not be held accountable.
“Accountability is surely needed in countries like the CAR and South Sudan if they are to return to peace. Under the AU’s proposal, however, government leaders would be beyond the reach of justice even if they were found to have directed alleged atrocities,” says Lamony.
The adoption of such a protocol seems to be only the tip of the iceberg when it comes to the apparent reluctance of the African Union to commit to the pursuit of justice for African citizens.
The African Court not only faces the challenge of restrictive and harmful legal instruments that impede its jurisdiction, but also the challenge of funding a matter that severely limits the ability of the court to function.
The matter of funding for the court in turn hinges on the political commitment from the member states and the heads of state and government. It is quite a conundrum.
"This amendment is a law to shield the strong and the powerful; it does nothing to protect the victims of horrendous crimes in Africa," said Carla Ferstman, the Director of REDRESS. "Not surprisingly, the decision comes at a time when two sitting presidents and one former president are facing charges for serious human rights abuses at the International Criminal Court."
The inclusion of an immunities clause makes the argument for an African Court similar to the ICC null and void, given that the AU is yet to show the slightest commitment to its own justice agenda.
"This decision calls into question the African Union's commitment to ensuring justice for victims of serious crimes such as war crimes, crimes against humanity and genocide," added Ferstman. "At a time when the African continent is grappling with accountability for massive violations, one should wonder why some leaders instead of cooperating to ensure justice, would want to give themselves immunity unless they are worrying about their own fate."
The International Criminal Court is intended to be a complimentary court to regional international tribunals, but with the inclusion of such a broad and ambiguous clause, there can be no complementarity between the ICC and the African Court. According to Mr Lamony:
“In its current form, the Rome Statute of the ICC is only complimentary to national criminal jurisdictions. Kenya and South Africa submitted an amendment suggesting that the ICC should also be complimentary to regional criminal jurisdictions, but if the expanded African Court gives immunity to heads of state, it will in an important sense not be complimentary to the ICC, because it will be unable to prosecute the most powerful perpetrators of grave crimes.”
Moreover, the broad description means that one cannot determine who is a senior member of government and who is not, leading to a situation where immunity can be granted at the mere behest of a person’s official title.
The immunities clause goes against the AU Constitutive Act, as well as the constitutions of several member states and protocols of regional bodies. Steve Lamony explains:
“The new protocol would also be in contradiction to many AU members’ own constitutions that do not allow immunity, e.g. Kenya Article 143(4) and the Protocol for the Prevention and the Punishment of the Crime of Genocide, War Crimes and Crimes against Humanity and all forms of Discrimination of the International Conference of the Great lakes region.”
The immunities clause in the draft protocol of the African Court, quite simply, has dealt the ultimate blow to the court.
It is the culmination nearly 18 years of reluctance by the AU to form any regional functional judicial system, where the people of Africa can seek legal duress against regimes that commit crimes against humanity.
As it stands now, the survivors and victims of atrocities will be forced to seek justice from other international tribunals, hopefully none of which will contain any sort of “African solution.”

Friday, 13 June 2014

These Journalists aren’t Loyal!

A Nairobi based Editor once told me that the laziest professionals in this city are journalists; you would have to look hard to find even a handful of committed journalists who are avid readers, researchers and have well developed material. Given the pointed ignorance by the media of situations that should ideally be the focus of their news reports and features, I am inclined to agree.
Ever since the Jubilee government took office in April 2013, the mainstream media in Kenya has actively pursued an agenda of bare-faced brown nosing and boot-licking, self censorship and general laziness when it comes to the most basic news stories. Events will occur right under their noses, go on for days and only upon getting some kind of go-ahead signal from the regime then choose to donate about 5 minutes of their time to the subject.
There is no situation more grievous in Kenya today than the illegal arrests and incarceration of ethnic Somali people in a highly controversial and racially motivated “security operation” called Usalama Watch. Led by the Cabinet Secretary for Interior and Coordination of National Government Mr Joseph Ole Lenku, Usalama Watch not only ignored a 2013 ruling by the High court stopping the forced transfer of 50,000 Somali refugees to Dadaab and Kakuma camps, it also is now considered the most widespread government sanctioned ethnic profiling ever undertaken by Kenya. Using as yet unwarranted and inexplicable means, this government has decided that the face and source of terror activities is Somali people. 

To date the transformation of the Safaricom Kasarani Stadium into a police station is yet to be explained – the claim that it was defined as such via gazette notice is yet to be verified as to when this was done and using which laws. Most egregious is the fact that there have been documented systematic human rights abuses including and not limited to extortion and ransoming of those arrested, rape, beatings and forcible transfers of asylum seekers and Kenyan citizens who are documented.
The fact that the mainstream media has chosen to wholly ignore the ongoing illegal detentions and deportations over 70 days since operation Usalama Watch began speaks volumes of the utter betrayal by journalists. Not only have they not investigated the claims of human rights abuses, they have also refused to further cover the situation entirely.
The sum total result of this is that while thousands of Somali people are intimidated, harassed and violated, the rest of the country remains engulfed in a veil of darkness, wrongly believing that Usalama Watch has and continues to provide “increased security.” The claims by Administration Police spokesperson Masoud Mwinyi that “terror attacks have stopped in Eastleigh area since the Usalama Watch operation started” in an interview with Al-Jazeera’s social media show AJStream  on 22nd April were immediately debunked when a day later a blast at Pangani Police station resulted in the deaths of 4 people among them two policemen. Since that time, neither Usalama Watch nor the bombings have stopped, with multiple blasts occurring in both Nairobi and Mombasa. 

While the rest of the country is now forced to deal with being searched at every entry point to a public space, including when getting into public service vehicles, the journalists have chosen to generally remain mum about this; they do not question, they do not highlight, and they certainly do not investigate.
This sort of self-censorship is an affront to the principles of journalism, insulting to democratic values and quite frankly completely unethical. If these journalists don’t want to do their job and be journalists then they should do now what many of them choose to do later – leave the profession and move on to other careers.
In any progressive state, the function of the Fourth Estate is crucial to the management and culture of the nation. A lazy brood of ineffectual journalists and their complicit media houses contribute negatively to the overall social fabric; we have a reduced capacity to be a democratic country simply because these journalists aren’t loyal to the people!
More importantly, it is an ugly stain on our conscience to have a convenient silence when an entire community is targeted and suffers extensive, prolonged abuse. There can be no justice if the media is silent about the grave atrocities inflicted upon one ethnicity. The fact remains, that if the media does not speak up, when they are supposed to, then none of us can be safe while the government wages a “war on terror”.

AU seeks to entrench the impunity of Heads of State

This contradicts the political stance of the AU regarding the provision of justice on the African continent.
This amendment could be adopted at the upcoming 23rd Ordinary Session of the AU Summit in Malabo, Equatorial Guinea.
Of particular concern is the decision to ignore the many pleas from civil society and human rights organizations who appealed to the African Union on this matter. In a letter to the African Union in May 2014, 19 civil society organizations wrote to the Justice Ministers and Attorney Generals:
“The irrelevance of official capacity is at the core of making accountability for the gravest crimes meaningful. The alternative would carve out a sphere of impunity for high-level perpetrators, and create an incentive for such perpetrators to hold on to power indefinitely. Such impunity is further inconsistent with the needs of victims and ensuring justice for the gravest crimes.”
It seems that the African Union has a serious challenge ensuring the actions of its member states keep in line with the Constitutive Act of the African Union. Under Article 4 (o) of the Act, the AU is mandated to adhere to “respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities.”
As it is, at least 15 member states are currently in a state of conflict, and it is alleged that severe atrocities are being committed by both governments and insurgent groups.
The most devastating conflict currently receiving global attention is in the Central African Republic (CAR), where it is estimated that thousands have been killed in bloody sectarian violence that has seen the worst atrocities committed, including cannibalism in some instances.
Hot on the heels of the CAR conflict is the recent uprising by rebel groups allied to former deputy President Riek Machar in South Sudan. Severe atrocities have been reportedly committed by both government and rebel groups in a conflict said to have taken on ethnic dimensions. Despite several attempts at a ceasefire, the two parties to the conflict have yet to bring the war to a decisive end, and only recently signed an agreement to that effect on 6th June, 2014.
It is quite disconcerting, therefore, for the AU to proceed with an intention to set up the African Court of Justice with a clause to provide immunity for heads of state, a matter that is also contrary to Article 4 (h) which states that the AU has “the right to intervene in a Member State pursuant to a decision of the General Assembly in respect of grave circumstances namely:  war crimes, genocide and crimes against humanity.”
The most insidious thing about the proposed amendment is not just that it is likely to be adopted by the General Assembly, but that it is the very heads of state seeking immunity who will adopt it.
Despite the seemingly well-intended legal instruments put together to formulate the African Court of Justice, it is now becoming clear that the AU is not only incapable of following through with its own decisions to seek justice for victims, but also that no successful prosecution of state government or individuals will occur in tandem with the political objective of such an amendment.
Whereas the AU and its member states repeatedly wax lyrical about seeking an “African Solution” to various peace, security, justice and human rights concerns, they actively remove the possibility of any form of accountability on the part of governments or heads of state.
This state of affairs leaves the very intention behind the push for the African Court of Justice open to question. What is the point of having a court that cannot prosecute?
Perhaps the answer lies in the ongoing political war being waged between the AU and the International Criminal Court.
In the meantime, for the millions of victims of human rights abuses, justice from the AU remains elusive.

Jubilee government is still neglecting IDPs from post election violence

In early April, Journalists for Justice, a non-governmental project on media, commissioned Ipsos Synovate to conducted focus group discussions across Kenya to assess the needs of victims and survivors of the post-election violence of 2007/08. I attended these discussions.
For each area, there were two groups, one for men and another for women. What followed were the most heart wrenching narrations, graphic illustrations from a group of people politicians dared to claim have moved on.
One by one, survivors recounted the events of 2008, before the elections, during and after. The two hours that were allocated for the focus group discussions seemed completely insufficient to fully address and express the sort of needs that the survivors who were gathered felt were imperative.
At times, the conversation would get so charged with emotion that it felt like one could cut open the air and hate and anger would pour out.
While there may indeed be some victims who have forgiven their tormentors, it is in general a completely inaccurate statement that any victim of politically instigated violence in Kenya has simply “moved on.”
Actually, many victims have been unable to recover in any form, primarily because the government and its state agencies have implicitly failed to provide any sort of humanitarian assistance or restitution towards their recovery after the events of 2007/08.
This egregious state of affairs is the salient factor behind two public interest cases filed at the High Court of Kenya. The first case is a petition in which eight survivors of SGBV and 4 civil society organizations are suing the Attorney General and 5 other senior government officials for failing to protect them and provide assistance during the PEV of 2008.
The second case is a constitutional application in which Internally Displaced Persons are seeking restitution from the court because the government, they assert, had provided almost no assistance whatsoever to nearly 314,000 IDPS despite various claims by Cabinet Secretary for Devolution and Planning Anne Waiguru that all registered Internally Displaced Persons had been re-settled.
It appears the political objective of the Jubilee coalition may be to diminish the gravity of the situation as regards the victims and survivors of the 2008 PEV, and to challenge the credibility of the cases at the International Criminal Court based on that erasure of victims.
The general logic behind this was “if there are no victims or if the victims have moved on then the cases have no merit.”
The condition of the victims remains so dire, that in a letter to the Special Rapporteur on the Human Rights of Internally Displaced Persons at the Office of the High Commissioner for Human Rights, the Common Legal Representative for Victims in Case 1 at the ICC, Mr. Fergal Gaynor, urged Dr. Chaloka Beyani to call upon the government in the strongest terms possible to meet their obligations towards IDPs (see download below).
For seven years, the government of Kenya has wholly ignored the plight of 314,000 IDPS from the post-election violence, those of whom were considered “integrated”.
By integration what the government means is that these IDPs were temporarily at the IDP camps after which they were transported to what was considered to be their “ancestral homes.”
For thousands of Luo, Luhya and Kisii people this meant that they were transported to the Western and Nyanza regions of Kenya and dumped at market centres, churches and other public places.
Many of these IDPs had not visited these areas in years if at all. After this relocation by government, no further assistance was provided to these people.
As a result of the government’s actions, the ethnic cleansing objectives set out by militia and politicians who instigated the post-election violence were successfully accomplished.
There are now entire regions of Kenya previously considered hotspots for violence in which you will not find any member of other ethnic communities, parts of Kenya where “foreigners” are not able to live.
In its recommendations on displaced persons in its 2008 report, Human Rights Watch stated that the Government of Kenya should “ensure that internally displaced persons are protected from further violence regardless of their ethnicity and location, and ensure that the fundamental and social and economic rights of all those displaced by recent and previous events are met, including through equitable access to food, health, and education services.”
In his State of the Nation address presented before Parliament on March 27th 2014, President Uhuru Kenyatta asserted that:
“In September 2013, the government began the implementation of a cash payment programme for all pending cases of IDPs that had not been resettled so far, a total of 8298 households. A total of 777 have received cash payments of Sh400000 per household, totalling Sh3.3 billion. The exercise continues. This settlement was followed by a concerted effort by government that focused on peace building among communities.”
The most noticeable inconsistency in this statement is the fact that the figures mentioned by the President do not add up. 777 households receiving Sh400,000 each comes to Sh310,800,000 and not  Sh3.3billion. The difference represents a massive shortfall of 2,989,200,000.
Further, one cannot tell which IDPs the President is referring to, whether they are Mau evictees or post-election violence IDPs.
There is a clear lack of political will to provide any form of justice to victims of post-election violence, and along with this, the decision to churn propaganda concerning the situation of the victims only causes further harm. 
There seems to be no end to the victimization of the survivors of the post-election violence by government. Given this situation, it is indeed quite necessary to turn to litigation on behalf of the victims in order to seek what is their constitutional right.

Foreign governments do no wrong in protecting their citizens

In his address on May 16 2014, President Kenyatta claimed that Usalama Watch had disrupted the networks that supported radicalization and violence.
This is certainly not the case. If anything, activities under Usalama Watch have opened up new avenues for the unfiltered flow of information and finances, given the accepted corrupt nature of arrests, ransom and release going on at Kasarani and Pangani police stations.
It’s no longer a secret that the security agents and in particular the police have taken the opportunity accorded to them under Usalama Watch to exort the community. The horror visited upon ordinary citizens is depicted in a short film by InformAction, a not-for profit organization.
At the  time over 400 tourists were evacuated from the Kenyan coast by Thomson Travels, a long established tours and travel company,  President Kenyatta was stating that his government had received no intelligence from its partners, including Britain.
As he addressed the nation, two blasts occurred in Gikomba open air market, killing 12 people and injuring 70 others.
It's a well known fact that the Anti-Terror Police Unit is supported by both British and US agencies that focus on counter-terrorism.
It is highly unlikely and implausible that foreign intelligence agencies will act independently on a nation's soil, receiving information on imminent terror attacks and not share that information with the host nation despite being partners in a "war on terrorism" leaving civilians at risk.
The idea that the National Intelligence Service, the Anti-Terror Police Unit, the Criminal Investigations Department and Kenya's entire military intelligence network were absolutely unaware of a threat so massive and serious that over 400 people had to be evacuated at short notice to another continent is rather ludicrous.
That Kenyan authorities can seek to shift economic blame to a foreign government seeking to protect its citizens is laughable.  
At a time when the forces behind trans-national crime in Kenya are at their strongest, it appears that the Kenya government is conveniently providing  political cover for their shortcomings by shifting blame to partners who see the risks and the dangers clearly and take action.
The only idea that Kenyans can derive from this sort of policy is that Kenyan lives seem to matter far much less than those of tourists.
Most certainly, it is time that the call to sack certain officials and appoint new smarter and more intelligent replacements was heeded.

Few arrivals at Dadaab show the poor results of Usalama Watch

The past four weeks have been filled with much anxiety in the Somali community living in Eastleigh, for good reason.
Up to 4000 people have reportedly been arrested and “screened” at the Safaricom Stadium Kasarani, in a security operation dubbed Usalama Watch.
According to the Cabinet Secretary for Interior and Coordination of National Government, Joseph Ole Lenku, the overall objective of Usalama Watch is to “clean up, mop up and get rid of these criminals” in response to terror attacks in Dadaab, Likoni, and Eastleigh.
What should have been a security operation focused on singling out criminal elements within the population of Eastleigh has morphed into a crackdown on illegal immigrants and the unlawful arrest and detaining of refugees and asylum seekers, presumably with the intention of forcibly repatriating the illegal immigrants to their home countries and relocating the refugees and asylum seekers to Dadaab camp from where, it is presumed, they came.
C.S. Ole Lenku has claimed in an interview with Nation TV that they have suspects whom they can prove to be criminals in a court of law. Yet the poor results from such a wide-spread “crackdown” are alarming. Despite having arrested thousands, the number of actual arrivals at Dadaab is as low as a total of 79 urban dwelling refugees and asylum seekers as at 19 April, 2014, according to the UNHCR Dadaab Situation report.
The 79 were transported to Dadaab Camps by the Department of Refugee Affairs (DRA) from the Safaricom Stadium in Kasarani, Nairobi.  Among them were 41 Somalis, 36 Ethiopians, 1 Cameroonian and 1 Kenyan.
With only 79 people arriving at Dadaab in the crackdown so far, one has to wonder what happened to the 4000 people arrested. Administration Police spokesman Masoud Mwinyi, in an interview with Al-Jazeera’s social media show ‘The Stream’, claimed that a majority of the people arrested were simply processed through and later released. AP Spokesman Masoud Mwinyi was of the belief at the time of the show that Usalama Watch had resulted in peace and better security in Eastleigh area, citing that no terror attacks had occurred since the start of the operation.
Mr. Mwinyi’s remarks were immediately overshadowed by a horrific blast at Pangani Police station in which four people, including two police officers, lost their lives, putting paid to the claim that Usalama Watch has been effective in preventing terror attacks.
In the face of forced transfers in which family members are separated, children kept from their parents and individuals not allowed to collect their belongings, the furor raised by human rights organizations is quite justified.
Repeatedly, the call for a systematic and strategic plan in dealing with those arrested in a humane manner has been ignored, or shouted down by proponents of the security operation. The consistent illogical argument put forth by pro-regime activists is “What do you want the police to do? They have no choice!” Well, actually, they do have a choice, several choices in fact.
Foremost, the security apparatus in this country needs to consolidate its actions nationally. There is a clear and obvious disconnect between the actions and standard procedures applied by police in Dadaab camps versus the conduct of police towards urban based refugees and asylum seekers.
According to an feature story by Al Jazeera, the latter have repeatedly complained of police brutality, physical assaults, rape, and damage to property as well as demands for bribes from police officers. It is disheartening that the police have yet to own up to their excesses. Police Spokesperson Zipporah Mboroki underscored this consistent denial in her statement where she stated that the police force had not received any complaints from the public about the operation adding that anyone can take their grievances to the Independent Policing Oversight Authority”.
In all of this, the plight of those being arrested seems to have been completely swept under the rug. The first casualties of Usalama Watch were a 40-year-old Somali woman, Zeynab Mohamed Muse "Bulhan", a refugee who was hospitalized and died two days later, and Mohamed Kadiye Robe, 67, who reportedly died of shock after his whole family was arrested. He suffered from diabetes and high blood pressure.
In the course of the activities being conducted under Usalama Watch, it seems that no ethnic Somali has been spared. Somalians, Kenyan nationals and journalists were all harassed. Al-Jazeera’s correspondent Malkhadir Muhumed, a Kenyan ethnic Somali was arrested and held incommunicado for 3 days and subjected to humiliating searches. His “crime” was entering a detention camp with a video camera. His equipment was only returned to him with the video deleted. It is hard not to believe so many reports of human rights abuses all of which share a singular consistent theme of targeted, ethnic profiling.
Given the paltry numbers of both returnees and deportees, it is clear that the racially motivated approach to Usalama Watch and the subsequent crackdown on illegal immigrants has had little to no impact on securing the country against terrorist action. It is also obvious that the police are too under-resourced, poorly trained and ill-equipped to successfully engage terrorists in successful warfare. These terrorists seem to have no qualms at all conducting warfare among civilian populations, including ethnic Somali communities.
It’s a real travesty that the police choose to visit abuse on the very same population targeted by the terrorists, leaving much doubt as to who is protector or persecutor between them and the terrorists.
Twittter: @bettywaitherero

Lack of moderate, circumspect leadership hampers the war against terrorism

Up to 4000 people have been arrested, detained and “screened” in a process said to be rife with flaws, and whose overall objective remains unclear.
Soon after a shooting incident in a Likoni church in which gunmen killed 6 churchgoers and injured 15 others, Usalama Watch was launched with the intention at the time to target “suspected terrorists and criminals”. However, the nature of the swoops was so vast that Usalama Watch was soon re-engineered to target “illegal immigrants and refugees.”
Since its launch, the operation has arrested thousands, yet currently it has managed to isolate about 200 people for deportation due to a lack of documentation. This leaves the vast majority of those arrested as having valid documentation, either as refugees, Kenyan citizens or registered aliens.
A key factor in the activities of Usalama Watch is the singling out of the Somali community in Eastleigh as the primary area where searches and “screening” are occurring.  This sort of knee-jerk reaction to a security crisis is consistent with the government’s approach to handling affairs, dating to colonial times.
The bungling, excessive force and blanket discrimination against one ethnic community is not new; during the Emergency period, the colonial government used similar tactics of ethnic profiling, community-wide swoops and indefinite incarceration in gulags and concentration camps.
The approach then was completely ineffective in the long run and ultimately led to even more radicals joining the anti-colonial movement.
Usalama Watch, in this regard, is no different from previous government crackdowns in that it is an inefficient, ineffective and unsustainable approach to security matters.
Yet, the police will claim that ever since the crackdown began there have been no further terror attacks in Eastleigh. Unfortunately, there have been attacks in Garissa and Dadaab.
The emerging sentiments from the public following the launch of Usalama Watch are mixed. There are those who were business rivals with business people based in Eastleigh, especially in the import-export trade. Certainly, these people’s interests have been brightened by the temporary disruption of business in Eastleigh.
There are those whose livelihoods are directly or indirectly dependent on the Somali community.  These people feel that though there is need for increased security, the crackdown has had far-reaching negative effects with little to no improved security.
Then there are those who remain ambivalent to the situation, mainly because they are not reliant on Eastleigh for business or livelihood and neither are they Somali people.
In the discourse that has taken centre stage politically and at the social level, what is clearly absent is leadership that has the genuine interests of the entire nation at heart.
We are yet to hear from moderate, balanced leaders who take into consideration the concerns of every sector in society. Instead we have Usalama Watch led by Interior Ministry CS Joseph Ole Lenku, a man described by Nairobi Law Monthly Publisher, Ahmednasir Abdullahi, as “a former third rate beverages manager in a two star hotel on the outskirts of Nairobi.”
Personal digs aside, Mr Ole Lenku has displayed a total disregard for the law by ignoring the directives of  a High Court ruling in 2013 that put a stop to the push to relocate urban-based refugees back to Dadaab in the name of national security, citing that there was no correlation between the two.
It is completely disheartening that the CS who has been given the responsibility to uphold the law not only brazenly flouts it, but goes ahead to grievously infringe upon the constitutional mandate incumbent upon government as regards the rights of citizens.
The sum result of Usalama Watch thus far can be said to be the fattening of wallets of corrupt policemen who took advantage of the operation to arrest Kenyan citizens and demand bribes.
This is not the first time that allegations of corruption during a serious security crisis have emerged; in September 2013, during the Westgate siege, there were several complaints that officers responding to the terror attack at the mall were robbing victims, indeed a few policemen ended up inside the docket on such charges as robbery during the terror attack.
Ultimately, it appears that Mr Ole Lenku has no control over the police force or is totally incapable of weeding out the corrupt elements such that his activities seem to be consistently marred by the indiscipline of those officers on the ground.
To his credit, Mr Ole Lenku is not alone in his current situation. It is now clear that even among the Muslim community, there is a total absence of sobriety and responsive leadership.
Interestingly enough, there have been up to 84 terror attacks in Kenya since 2005 . Whereas the majority of these attacks were centred in Eastleigh, Garissa, Wajir and Mandera, the leadership in the Supreme Council of Kenya Muslims (SUPKEM) have been stoically silent, providing no real insight or feedback, nor engaging the government in a forward and visible manner despite being Islamic community leaders.
This lack of correspondence on a public and visible level leaves both the Muslim community feeling unheard and the greater non-Muslim community feeling that they do not care about the situation, or that they are hiding potential terrorists due to religious reasons.
It does not help that during such a tense and volatile moment, we have vocal, hot-headed activists publicly denouncing non-Muslims as “kafir” as was the case with the late Abubakar Sharrif aka Makaburi. “Kafir” is an Arabic term meaning a person who rejects the truth of religion.
An emerging hypocrisy of radical preachers is to bypass the fact that historically Islamic communities have always found it possible and acceptable to live with other communities. The rejection of people based on religious reasons is not only un-Islamic but also a sign of sheer anti-social tendencies.
More importantly, the Muslim community finds itself burdened with several emerging young politicians, many of whom have no real grasp of the situation at the grassroots level. Out of the entire Islamic population in Kenya, less than 2 to 4 per cent even agree on an intellectual level with much of the political and radical religious leadership. The vast majority are moderate Muslims, people who wish to live in peace and harmony with their fellow citizens.
The problems that lead to gangs and organized criminal groupings such as Taliban, Mungiki, Chingororo, Bagdad boys, Al-Shabaab and Jeshi la Mzee are still rife within the Kenyan societal framework. Al-Shabaab is not necessarily a Somali problem, or a Muslim one. The factors that create radicalized young men in Islam also create radicalized young men in the Kikuyu community.
A moderate, circumspect and sensible leadership will recognize this and find a long term strategy to deal with it. It is proper leadership that is structured that can help guide the greater republic away from inbuilt terror and criminal activities and towards a more peaceful and cohesive nation.
As it is, the well of money from extortion that Usalama Watch generated for corrupt police officers is running dry. Each day more and more Kenyan Somali are getting bolder and standing up to the incessant harassment. At the end of the day, in terms of security, there is little to no achievement. In terms of business in Eastleigh, the traders may have taken a blow but are willing to rebuild themselves, and those who aren’t are looking at Uganda, South Africa and Angola as an alternative place to invest in.
However, the biggest blow has been dealt to Kenya at the social level. There is an ever widening fragmentation of communities and deepening mistrust that is volatile, tangible and slowly being entrenched into the psyche of the ordinary person. It is this fragmentation that true leadership needs to address, if we are to ever begin to win the war against terror.

Dadaab is a center for moderation, not radicalization

On the night of 3rd April 2014, 3 blasts were heard in the Dadaab airstrip in Northern Kenya during the incident, no one was injured but the main gate was completely destroyed. The unknown assailants were said to have accessed the area on motorbikes.
In Dadaab, there have been about 21 Improvised Explosive Devices (IEDs) found since 2011, but in the camp the police have not thus far been extra-judicial in their responses.
This is a marked contradiction to the police responses in Mombasa and Nairobi. Last week alone, over 3000 people were arrested in swoops, including women and young children. An overwhelming majority of those arrested were Somali, and a large number were documented Kenyans, some not of Somali ethnicity.
It is true that Kenya has suffered greatly for its activities in Somalia; in 2011 Kenya launched operation “Linda Nchi” a military incursion into Somalia with the aim of fighting Al-Shabaab and recovering or “freeing” towns where the Al-Shabaab militia had taken over. Al-Shabaab is an offshoot of the Al-Qaeda network, created in 2006 and led by Ahmed Abdi Godane also known as Mukhtar Ali Zubeyr. Godane recently urged Somalis to fight their age-old enemy Ethiopia.
It has been the group’s approach to claim responsibility for attacks in Somalia and Kenya by announcing it to the media.  Andalus FM in Mogadishu is the main radio station they utilize to state their claims and reasons after attacks in Somalia.
After the 2013 Westgate Mall attack in Nairobi, Al-Shabaab claimed responsibility through their representative Abu Mansur Al-Amriki, who demanded that Kenya withdraw its troops from Somalia. When they choose to do so, not only do Al-Shabaab announce that they are responsible for attacks, but they also allow journalists to interview them on the matter, as was seen with Abu Mansur’s extensive interaction with the international media. It is quite surprising then that the Al-Shabaab has not staked a claim to the attacks in Likoni, Eastleigh or Dadaab.
It’s hard to say why these attacks take on the form that they do, and the police are yet to report on what their investigations reveal. But more importantly the subsequent targeting and profiling of Somali refugees by the Kenya government is quite concerning.
Security in Dadaab can be said to be moderate on average; the people there live in fear of Al-Shabaab more than they fear government forces. If one were to make a comparison, the refugees find Dadaab safer than Somalia. They are simply civilians, and when the government blames them, it lends to a feeling of being targeted because of being Somali. All Somalis are not criminals, Al-Shabaab exists but they kill Somalis as well.
The profiling of Somali refugees is now the national narrative; when there is an attack in Mombasa or Nairobi, fingers point to Dadaab. But the reality is that Dadaab may indeed be more secure than other towns in Kenya. 
Dadaab is at least the fourth-largest town in Kenya although resources there are very scarce. It has been a sanctuary for Somali people fleeing oppression in Somalia. It provides a haven for people to gain an education and make a life for themselves.  It has become a place for moderation rather than radicalization.
In addition, Kenya has signed and ratified a tripartite agreement between the UNHCR, Kenya and Somalia. The document, in which Kenya agrees to its legal obligations towards asylum seekers and refugees from Somalia, is explicit in its detail.
Despite this, the government’s tone now is “you will go or you will go”.
For the 20 years that Dadaab has existed it has become a place for moderation rather than radicalization. In that time, the police have learned to deal with the people in such a manner as to gain co-operation from them. With about 500 police operating in the area, there has been a noted improvement in the conduct of the police force with regards to raids.
It is quite clear that not all government departments are in harmony with the negativity stemming from the Internal Security Cabinet Secretary, Joseph Ole Lenku who has directed that “all urban based refugees should be relocated to Dadaab.” CS Ole Lenku’s directives show that he lacks a reflection of the reality in Dadaab, and as regards the refugees; he doesn’t seem to get the bigger picture.
It is the refugees who have suffered the most under terror groups such as Al-Shabaab, and it is the refugees who are quick to report any member of these terror organizations.
It is quite disconcerting that the police in Nairobi and Mombasa have yet to adopt the same level of professionalism as their peers in Dadaab; they need to be able to identify who is a criminal and who isn’t rather than arresting the whole neighborhood as they have done in Eastleigh where old men, women and children were all arrested in night-time raids.
Moreover, it is time for the security forces in Kenya to acknowledge that Al-Shabaab could be entering the country through other entry points and not just Dadaab. There need to be genuine efforts to secure these access points across the nation, rather than pinning the blame on the one town where Al-Shabaab are not likely to hide.

Facial features and ethnicity don't make you a criminal

A colleague recently mentioned that during her courses in law school, the Criminology lecturer gave a descriptive analysis of what criminals look like – red eyes, gaunt face, square jaw and unkempt appearance. According to this particular lecturer, all criminals are physically identified with such an appearance.
From a very early stage in our development, we are trained to associate certain physical traits with criminals. Perhaps this is the root of the malaise that currently plagues the country’s legal authorities.
In graphic novels, the villain is always represented by gaunt and highly exaggerated features, whether male or female; the villain and criminals are always easy to recognize physically by their racial and facial features.
In the last few days we have seen politically driven racism take on shocking proportions among the general public – hateful comments made in public forums have metamorphosed into open racial attacks against innocent citizens of Somali ethnicity; reports have come in of Somali people being forcefully ejected from public service vehicles.
We are certainly a nation of bigots; this fact is displayed every 5 years during ethnically motivated elections in which the electorate predictably votes in ethnic blocks in a sham of a democratic process and consistently flawed electoral process.
It is the national narrative to segregate and even isolate millions in ethnic enclaves leading to a national mentality of “it’s our turn to eat.”
Political office is seen as an ethnic entitlement especially among the ruling elite; the very idea of an inclusive national ideology is completely foreign.
It is an ingrained and incontrovertible attitude; that we are not one nation with several ethnicities but simply a country of various ethnic groups all claiming superiority.
Woe unto the other ethnic communities that do not gain political office in significant numbers, woe betide all those who are not Kikuyu or Kalenjin.
Ethnic profiling, of Somali or any other ethnic community ,is not only unconstitutional but an egregious form of state driven discrimination, one of the worst human rights abuses that any law enforcement authority can come up with.
It simply means that by virtue of your god given features and being born in a certain community you are a criminal. It is a completely irrational line of defence to use in a war against terror and certainly has no merit or legal basis whatsoever.
Given the national propaganda being driven by what I consider the cheapest sort of idle bigots among the political class, it is no wonder that any person who stands up to this sort of tyrannical racism is branded a “terrorist sympathizer”. Journalists, human rights defenders and clergy who have been vocal against this sort of blatant discrimination have faced a backlash of hatred for their stance.
When it comes to national security, it is incumbent upon us as citizens to unite and consider security for all while protecting the fundamental freedoms and rights of every member of society. Ethnic profiling is illegal; using absurd means like ethnic facial features to identify criminals is illegal and cannot stand up in any just court of law.
We deserve proper answers to the terror threat. It is time that the state authorities stopped the shenanigans and produced tangible results in terms of increased security.
Most certainly it is time that this country learned that targeting certain ethnicities and propagating absurd blanket stereotypes is not only divisive, petty and immature it is an ugly approach to nationalism that leaves all of us vulnerable to attack.
Twitter: @bettywaitherero

Saturday, 17 May 2014

Kenyans justify atrocities committed by their fellow tribesmen

This is the irony of being Kenyan. That we call ourselves a nation fighting terror for the sake of national security and at the same time endorse a national policy of ethnic profiling that targets one community and makes them live in perpetual insecurity.
There is a damnation that accompanies a history such as ours, where for 50 odd years we as a country internalized our bigotry and visited endless conflict on one ethnicity simply because they, at one point did not want to belong to Kenya.
It is the rankest irrationality; that we would punish, discriminate, torture, jail and maim people because 50 years ago they voted to secede. We forced them to be a part of Kenya, and yet spend every single day, egging on a government that does not acknowledge their citizenry or rights.
The profiling of Somali ethnic people by the Kenyan government and the Jubilee regime is of the most egregious sort. When 4000 people were arbitrarily arrested and detained for weeks, the entire society watched on with approval. Never mind that the people are innocent, civilians, men, women and children and that not a single person arrested thus far has been charged and convicted with crimes of terror.
Never mind that most of these people were never produced in court, nor was there any justification given for their arrests. Never mind that operation Usalama Watch despite all its recent illegal and unconstitutional activities has not improved security in this country one bit.
I don’t know what security chiefs were told but it looks like they now have the free will to invent operations that are of the most abusive and corrupt nature; “security measures” that mean Police Inspector General David Kimaiyo can wake up one day, utter some nondescript traffic act and make an illegal declaration on personal vehicles and tinted windows.
The fact that the law enforcers are so willing to break the law while claiming to be fighting crime would be laughable were it not so devastating. Criminals are defined by the simple fact that they break the law and commit crimes. What then is the difference between the police and the criminal if both commit crimes and both break the law?
It’s just so acceptable to all the other ethnicities that those members of the police service and security apparatus, people who are your own tribesmen can and do the most horrendous acts upon unarmed innocent Somali people.
The justification of atrocities committed by in-group members is a psychological phenomenon studied and documented by Alin Coman from the Department of Psychology, Princeton University see:
In his abstract, Coman explains that moral disengagement strategies are some of the ways people will rationalize the immoral acts of people they perceive as one of “us”, the in-group. Thus, the recounting of acts by American soldiers (in-group) will be watered down and even ignored by their comrades, while the acts committed by Afghan soldiers (out-group) will be more accurate.
We can see this psychological disengagement in Kenya; where for the better part of this year, the Jubilee government through its security apparatus has propagated a xenophobic doctrine in their claims to be at war with terror.
Its obvious that the completely immoral justification of ethnic and racial profiling has been swallowed whole primarily by ethnic groups that perceived themselves as the winners of the March 2013 elections. In the eyes of some Kenyans, the only people who suffer are non-somali victims of terror attacks – never mind that more Somalis have suffered under both Al-Shabaab and the Kenya government and for longer.
With the blasts that occurred at Gikomba on 16th May, Kenya marked over 100 terror attacks in the past decade with nearly 400 people being killed. It is quite disconcerting that while President Uhuru Kenyatta addressed the nation on the travel advisories and admitted to not having received any security information from the British or US embassies, 10 people lost their lives and 70 others were hospitalized.
Almost immediately, Moses Kuria a self-styled political analyst rumored to be an adviser to State House creates an inflammatory post on social media that contained a thinly-veiled threat of repercussions.
Here is the full post as it appeared on facebook:
“I think its just a matter of time before Kenyans start violence against PERCEIVED terrorists, their sympathizers, their financiers and those issuing travel advisories without sharing intelligence. I am not sure I will not be one of those Kenyans. When you touch Gikomba the nerve centre of our economic enterprise you really cross the line. Brace yourself. Choices have consequences.”
The sort of irrational hate mongering that fills the post beggars’ belief. We still don’t know who was behind the blasts at Gikomba, nor do we know what their ethnicity is. But it is clear that in line with the current Jubilee regime’s ethnic profiling that Moses Kuria implied Somali people; the only ones who thus far have been PERCEIVED as terrorists and suspects by government.
We have gone from fighting a war on terror, to fighting a war on perceived terrorists, forgetting that our perceptions of each other are massively tainted by our tribal bigotry and a history that is a curse upon the various marginalized communities in Kenya. Jubilee pledged to unite the country through its national policies, but thus far has engaged itself in doing the exact opposite, and its supporters justify atrocities simply because they perceive Jubilee leadership to be from their own tribe.