Kenya

On Wednesday, the Kenyan Supreme court provided a detailed discussion of why it annulled the August 8 presidential elections in which incumbent President Uhuru Kenyatta seemingly defeated Raila Odinga. The perennial challenger and former prime minister challenged the election results, claiming fraud and that the Independent Electoral and Boundaries Commission (IEBC) computers had been hacked. The bottom line is that the Court judged that the IEBC did not transmit properly the polling results from a significant number of polling stations to consolidation centers. The judges also castigated the IEBC for not opening up its computer system to their investigation. Hence, the court could not dispose of opposition claims that the systems had been hacked. The justices exonerated Kenyatta of any wrong doing and did not find that the elections had been rigged, but were highly critical of the IEBC. The justices ordered new elections to be held by November 1. Subsequently, the IEBC announced that they would take place on October 17. However, for technical reasons—the electoral process in Kenya is tech-heavy—the date has been pushed back to October 26. On September 21, the cabinet approved $97 million to fund the new election.  Kenyatta and Odinga have accepted the Supreme Court ruling, but there are some unresolved issues that must be addressed before voting can take place. Kenyatta wants a runoff, which would be between just him and Odinga. Odinga wants a new election, which would allow other candidates to re-run. That is just one of the twenty five demands that Odinga says must be met before he will participate in a new election. Among others, the demands include the removal of senior personnel in the IEBC secretariat, a new company to print the ballots, review of the voter registry and of the  voting stations, which number over forty thousand. He is also demanding a full audit of the various technologies used. While some of his demands have been met, including postponement of the balloting from October 17 to October 26, it is hard to see how others could be before the constitutionally-mandated November 1 deadline. Hence, there is uncertainty as to whether Odinga will, at the end of the day, actually contest the elections. Thus far, there has been relatively little violence. However, supporters of Kenyatta are denouncing the Supreme Court and calling for an end to its independence established by the constitution of 2010. Justices say they are being personally threatened. President Kenyatta’s criticism of the justices is harsh: “A coup in Kenya has just been done by the four people on the Supreme Court…. The court is saying numbers don’t matter, it is processes that matter.” Whoever wins the next election, the losers are highly likely again to appeal to the Supreme Court. As the process draws out, the chances of ethnically-based violence increase.

The Kenyan Supreme Court ruled on Friday to annul the presidential elections that took place on August 8, arguing that the Independent Electoral and Boundaries commission, the agency charged with conducting the election, did not follow the requirements of the constitution. The move astonished Kenyans and most other observers. The court’s action, at least in the short term, was popular; for at least some Kenyans, the manifestation of judicial independence was more important than who was elected president. The new independence of the Supreme Court appears to be tied to Kenya’s new and progressive constitution, adopted in 2010 following deadly post-election violence in 2007. The Court’s vote to annul was four to two, with one judge absent because of illness, and three of the four who voted to annul having been called to the bench under the new constitution. Kenyan presidential election politics and elections have been deformed by ethnic appeals, and Kenyans traditionally have had a low opinion of the judiciary, which they saw as in the pocket of any incumbent president. With this decision, law, process, and an independent judiciary appears to have trumped ethnicity. Can it last? New elections are scheduled for October 17, with no new candidates permitted. That means President Uhuru Kenyatta and Raila Odinga will face off again. Estimates are that on a vote per capita basis, the annulled elections were among the most expensive in the world. Certainly, the October elections will again be a fiscal drain, although there are thus far few details about how the new polling will actually unfold. There are also complaints that the new elections have increased economic uncertainty and will negatively affect the business climate. There is also the fear of resurgent ethnic conflict and violence between Kenyatta and his Kikuyu, in alliance with his deputy president William Ruto’s Kalingen, and Odinga’s Luo and their allies. The recent rhetoric of Kenyatta and Odinga has not been reassuring. Kenyatta has attacked the judges, saying (among other things) that the judges were bought off by “white people and other trash.” (There are an estimated twenty thousand white people in Kenya out of a total population of more than 48 million). Kenyatta has also, in effect, threatened the independence of the judiciary. For his part, Odinga has said that he will not participate in the October 17 elections absent certain guarantees, including the arrest of certain members of the Independent National Electoral and Boundaries Commission, whom he characterized as “hyenas.” Neither “big man” is calling unambiguously for the scrupulous observance of the rule of law, though both have accepted the Supreme Court’s ruling. It is striking that the annulled elections were generally praised by foreign election observers, but their observation was primarily of the polling itself. In Africa, now, elections are often stolen at the points where voting tallies are consolidated, rather than at the ballot box. This process is hard for foreigners to observe, and, in any case can take place some days after the polling itself. Too often, foreign observers leave as soon as the polling is over and preliminary results have been announced. It remains to be seen what the foreign observer presence will be on October 17. Certain Kenyan non-governmental organizations also endorsed the elections. The bottom line is that election observers appear to have made the wrong call about the August 8 Kenyan elections. That is bound to raise questions about the efficacy of foreign observers of future elections. Kenya is entering unchartered territory. What happens after the October 17 elections? Will the losing candidate again appeal to the Supreme Court? Or will his supporters take to the streets? Kenyatta and Odinga have a heavy responsibility for leading their followers away from violence. 

The opposition leader’s challenge to incumbent Uhuru Kenyatta’s election victory risks undermining democracy in East Africa’s economic hub.

Rachael Sullivan is a Master of Public Administration candidate at Columbia University School of International and Public Affairs. She is currently a Franklin Williams intern at the Council on Foreign Relations.  On August 8, 2017, Kenyan voters went to the polls to choose between leading presidential contenders, incumbent president Uhuru Kenyatta and National Super Alliance (NASA) flag bearer, Raila Odinga. On August 11, the International Electoral and Boundaries Commission (IEBC) declared Uhuru Kenyatta the winner. Odinga’s allegation of election fraud has stoked local fears of a repeat of the ethnically charged political violence that took place in the aftermath of the 2007 Kenyan election.  Since this latest election, police have allegedly killed twenty-four Kenyans. Seventeen of the deaths took place in the capital, Nairobi. Police have used teargas on opposition supporters at demonstrations, prompting human rights groups, including Amnesty International, to urge professionalism and restraint by all security service members. The situation remains volatile amid protests, police violence, and unanswered calls to investigate voting fraud allegations. Continued instability and violence place Kenya’s neighbors and regional partners within the East African Community (EAC) at risk. Kenya is the de-facto leader of the regional economic bloc, which consists of Kenya, Tanzania, Uganda, Rwanda, Burundi, and South Sudan.  If current election issues are resolved peacefully, a second-term Kenyatta administration likely means business as usual and a continuation of current Kenyan policies with the EAC region. At present, Kenya’s relations with Tanzania remain strained due to disagreements over recent trade issues. Kenyan Defense Forces will remain in Somalia fighting Al-Shabaab with AMISOM until the job is done. And plans will remain in place for the Standard Gauge Railway (SGR)—a Chinese funded infrastructure project—to connect the region, eventually extending to Uganda, South Sudan, and Ethiopia, placing Kenya at the center of activity. However, many of these policies will become vulnerable if Kenya falls into turmoil. The other EAC countries, especially Uganda and crisis stricken South Sudan, heavily rely on Kenya's Mombasa port for many important material and food imports. Tumult in Kenya could threaten their access, and therefore, economic stability. Foreign companies like IBM and Google, have already established regional offices in Kenya, a regional champion for innovation and digitalization. They will be less likely to pursue increased investment in an insecure region.  Kenyan democracy is seen as a model for the region but faces an important political test as it considers its next steps. While international observers have widely praised the voting process, the problems for Odinga begin with the vote tally. On August 16, Odinga announced his plans to take his allegations of election fraud to the courts. If his supporters choose to settle their grievances in the streets in the face of an unfavorable Supreme Court ruling, Kenyan democracy will suffer. Democracy in the EAC, like much of Africa, faces significant hurdles as political leaders fuel fears, doubt, and mistrust of democratic processes. As neighboring countries already struggle to toe the democratic line, instability after the Kenya elections could encourage a trend of de-democratization in the region. Turbulence in the region could threaten the EAC's vision of economic integration between member states. If Kenya is to serve as a democratic model for its neighbors, it must immediately investigate the opposition’s claims of electoral fraud. As other nations, including the U.S., look to work more closely with Africa, they should continue to monitor and support Kenya during this critical time for the region. 

The outcome of the Kenya elections remains disputed. The International Electoral and Boundaries Commission (IEBC) declared Uhuru Kenyatta, the incumbent president, the winner of the presidential election. Opposition leader Raila Odinga, however, refuses to accept the result. He continues to maintain that the elections were “stolen,” apparently at the ballot counting consolidation stage. He has promised to reveal his ‘evidence’ to the public. Meanwhile, pro-Odinga demonstrations have died down, and a work stoppage campaign largely failed.  Criticism of police and security service brutality is mounting. Amnesty International is calling for an investigation of reports that police have shot and killed pro-Odinga protestors. The Kenyatta government is rhetorically adopting a strong “law and order” stance, especially with respect to critical social media posts. State House spokesmen have said that the police will move against “illegal” demonstrations and will not tolerate breeches of the peace, perhaps hints of an impending crackdown. Estimates of the death toll from security service killings of Odinga supporters ranges from four to more than twenty, depending on the source. (However, to provide some perspective, last week in Nigeria, at least 134 were killed in politically related violence or ethnic conflict.) President Kenyatta is calling for election disputes to be adjudicated in the courts. Odinga’s supporters are refusing to do so, saying that the courts stole previous elections on behalf of Kenyatta. So it is unclear what will unfold next. Odinga has promised a press conference, initially scheduled for August 15 but now postponed. Meanwhile the nine international monitoring teams – including the Carter Center, the European Union (EU), the African Union (AU), and the Commonwealth – are commending the IBEC on the elections. Odinga and his supporters are expressing their disappointment in the international observers, and they are specifically critical of Thabo Mbeki (head of the AU observers) and John Kerry (head of the Carter Center team). They see Mbeki, former South Africa president, as biased toward Kenyatta because of their long professional association as chiefs of state. They are also critical of what they see as Kerry’s inattention to their claims of fraud. (Odinga had publicly welcomed Kerry’s participation in July.) Odinga supporter and current senator, James Orengo, is quoted in the media as saying “some of them just have big names but have nothing to offer on matters of observing elections.” Do Odinga’s supporters have a point? With respect to African elections, outsiders love international observers, and western governments often fund them. Observers provide an “objective” means of validating – or not – the outcome of elections. However, the role of observers is limited. They can certainly observe the polling on election day, but observing the consolidation of ballot tallies nationwide is more difficult. And it is at the consolidation stage that elections can most easily – and clandestinely – be stolen. Consolidation of ballot counts is where Odinga and his supporters are saying that Kenyatta stole the elections. Africans often question just how much foreign observers see and understand about African elections, and criticize their usual departure after election day before disputes are adjudicated. Some Africans see the real value of foreign observers as providing cover for domestic observers rather than providing an authoritative evaluation of the quality of the elections.  After all, it is harder for the police to beat-up a local election observer who knows what to look for if a foreign observer is in the next room.      

What Kenyans hoped would not happen has happened. A portion of the Kenya electorate does not accept the results as tabulated by the Independent Electoral and Boundaries Commission (IEBC), which show incumbent president Uhuru Kenyatta with 54.4 percent of the vote and opposition leader Raila Odinga with 44.7 percent. (While nearly all of the polling stations have reported, the IEBC has not yet issued the “official” results.) Odinga supporters have been rioting in the Nairobi slums and in predominately Luo parts of the country. (Odinga is a Luo.) Media is reporting that the security services have so far killed three, but the actual number of those killed is unclear; the Nairobi police chief is quoted as saying the police shot “looters.”  It is premature to say how long the unrest will last or what its magnitude will be. Raila Odinga has told his supporters not to accept the election results but to remain calm. He has also said that he cannot control his supporters. His vice presidential running mate, Kalonzo Musyoka, urged Raila’s supporters to go home, but said that they might be called out in the future. Kenyatta and his Jubilee party are urging Kenyans to accept the IEBC results—which make him the victor.  A very high percentage of Kenyans get their news largely from social media. The interior minister has expressed concern that social media might stoke ethnic tensions and raised the possibility that he would shut down social media websites. However, according to the Kenyan print media, officials are saying they do not intend to shut down the entire internet. What is going on here? Raila Odinga is saying that Kenyatta’s Jubilee party hacked into the IEBC’s system to manipulate the poll results. He claims they used the log-in identity of Chris Msando, the IEBC’s information communication technology (ICT) manager, who was murdered a few days before the voting by persons unknown. He is also saying that his party’s parallel tally shows that he had 8.1 million voters, while Kenyatta had 7.2 million, making him the victor. The IEBC’s responses to Odinga’s charges of hacking are similar but not the same. The IEBC CEO is quoted in the media as saying that not only was the system safe, but “there had been no attempt to hack into it.” On the other hand, IEBC Commissioner Yakub Guliye, chair of the ICEB’s ICT committee said that the system was intact, but that there had been attempts by outsiders to gain access.  A real worry is whether or not the disputed election results spirals out of control and into ethnic conflict, as it did in 2007, when a contested election led to ethnic conflict that left some 1,300 killed and 600,000 displaced. Ethnic identities in Kenya are strong, and so, too, are rivalries between them, which can erupt into violence, especially over land and water use. Kenyatta is a Kikuyu, the largest ethnic group in the country; it has dominated governance during most of the post-independence period. Odinga’s Luo are the second largest group, many of whom have a sense of grievance about their alleged marginalization. There are also many other ethnic groups, however, and alliances and coalitions among them can shift. Hence, it is not inevitable that the current election dispute will morph into widespread ethnic conflict, though there is certainly the danger that it might. Shutting down social media might help defuse ethnic conflict, but to do so would deprive the Kenyan people of an important means by which they hold their leaders accountable. Furthermore, the behavior of the security services will ultimately be crucial. Their mishandling of a demonstration could turn a protest into a bloodbath. Kenyans remember 2007, however, and none want a repeat.   

In Kenya and around the world, anxiety is mounting about the potential for violence following the August 8 national elections. Incumbent president Uhuru Kenyatta is leading opposition candidate Raila Odinga by 55 percent to 45 percent, or more than one million votes. Odinga is characterizing the still-unofficial election results as a “sham, fictitious, and fake.” He claims that Kenyatta’s Jubilee party hacked the computers of the Independent Electoral and Boundaries Commission. Already, there are reports of violence and killings during post-election protests across many parts of the country. The voting itself, however, appears to have gone well, and there was little or no violence. This follows a frequent African pattern of peaceful voting. Violence tends to break out only after the results are announced or leak out. Even though the Kenyan voting went well, there were enough irregularities—late delivery of ballots, late opening of polls, and instances of failure of the biometric technology—to raise questions. At this point, however, Odinga is not questioning the voting. Rather, he is claiming that the ballot counting has been compromised by “hacking”. For his followers, the pre-election murder of the election official responsible for technology will lead credence to his accusation. Elsewhere in Africa, notably Nigeria, election rigging occurs most successfully during the ballot counting process, rather than at polling stations. The future depends on whether the general Kenyan public accepts the results of the election or if it splits largely along ethnic lines corresponding to party affiliation. Much will also depend on how Kenyatta and Odinga respond. The two leaders can inflame their followers through rhetoric, or they can urge calm and the peaceful resolution of election disputes through the courts. Kenyatta has said that he will accept the results, and has urged his supporters to return home after voting. The Odinga camp, on the other hand, has been more ambiguous; Odinga has urged his supporters in Nairobi to gather at a downtown park, while his vice presidential running mate has urged calm. The personal and political stakes are particularly high for Odinga, who, at age 73, has likely run his last presidential campaign, win or lose. During the campaign, both assured their followers of the inevitability of their victory, and did nothing to prepare them for the possibility of defeat. Indeed, pre-election polls showed the two candidates neck-in-neck, which may raise doubts about Kenyatta’s very large lead.  The behavior of the Kenyan army and police will also be crucial, neither of which Kenyans hold in high esteem. The police appear to be especially corrupt, as they demonstrated in their response to the 2013 Westgate Shopping Mall terrorist attack. Neither is known for subtlety. Some Odinga supporters saw the deployment of military units to polling stations as part of a Kenyatta effort to intimidate them.  Kenyans will pay close attention to the conclusions of international observers, such as the Carter Center delegation led by former Secretary John Kerry and the African Union observers led by former South African president Thabo Mbeki. On August 7, former president Barack Obama, in a rare public statement, inter alia, called on Kenya’s political leaders to reject violence and the security services to behave professionally. He urged election disputes to be resolved in the courts according to the rule of law. For many Kenyans, Barack Obama has a unique standing because his father was a Kenyan Luo (as is Odinga), and because of his administration’s emphasis on human rights and democratic governance.  These are dangerous times for Kenya. Too often international attention to high-profile African elections wanders as soon as the voting concludes. Observer delegations quickly draft a report and then leave. In the United States, North Korea is the current focus, not Africa. There is still no Assistant Secretary of State for Africa to sustain attention on Kenya or other African issues. Yet the stakes for the United States in the successful conclusion of the Kenyan elections are considerable. Kenya is the east African nation with which Washington has an important dialogue, especially on security and counter-terrorism, not least with respect to Somalia, South Sudan, and Ethiopia. Post-election violence in Kenya could seriously disrupt that conversation, while successful elections in Kenya would be an important, democratic example for its neighbors, notably the Great Lakes countries.  

On Tuesday, August 8, Kenyans will vote to fill about 1,880 positions. The highest profile race is for the president. The leading candidates are the Jubilee party’s Uhuru Kenyatta and the opposition National Super Alliance’s Raila Odinga. Both are scions of family and political networks that have dominated Kenyan politics since independence. Polls indicate that the race is very tight. Both presidential candidates, however, have assured their supporters that they will win; they have not prepared their followers for the possibility of defeat.  The 2007 elections in Kenya were very violent and reflected the important role of ethnic rivalries in politics, notably between the Kikuyu and the Kalenjin. In the aftermath, Kenya adopted a new constitution designed, in part, to mitigate the winner-take-all electoral culture that promoted violence. It also delegated significant power to forty-seven newly-created counties, each of which has its own governor, thereby reducing the role and power of the presidency. The elections of 2013 were subsequently significantly better. In 2013 Uhuru Kenyatta, a Kikuyu, and William Ruto, a Kalenjin, ran on the same ticket as president and vice-president, respectively, rather than against each other as had been the case in 2007. This, combined with the new constitutional arrangements, certainly mitigated instances of violence. In 2013, Kenyatta’s chief presidential opponent was Raila Odinga, who comes from the country’s second largest ethnic group, the Luo. The election of 2017 is a rematch between the two. The continued alliance between Kenyatta and Ruto continues to reduce the likelihood of violence between the Kikuyu and the Kalenjin. What is less known is how the Luo will respond if Odinga is defeated. A recent study shows that violence occurs in about half of all elections in sub-Saharan Africa. Most of it is before the polling date, but when it occurs after the results are announced, it tends to be more severe. In Kenya, under the new constitution, governorships are fiercely contested. It is likely that much, perhaps most, of the violence has accordingly been de-centralized and received less international media attention than would have been the case in Nairobi. Indeed, there has already been violence in the lead-up to August 8, notably the kidnapping and murder of Chris Msando. He was in charge of the Independent Electoral and Boundaries Commission (IEBC) Data Centre, which is responsible for the management of computer systems for voter identification and vote counting. If there is a wave of violence after Election Day, it may well be some days before the extent of it becomes known. The IEBC is trying to implement an incredibly complex electronic voter registration and vote-counting system, for which Msando was responsible. However, according to the International Crisis Group, similar systems have failed in other African elections.  Levels of anxiety about the elections are high in Kenya and in neighboring states which are closely tied to the Kenyan economy. Credible polling results will be crucial to avoiding violence and system failure would pose a risk to that credibility. The post-election stance of Kenyatta and Odinga will also be of great importance if widespread violence is to be avoided. If the loser concedes (as incumbent Nigerian president Goodluck Jonathan did to Muhammadu Buhari in 2015), the prospect of violence is much reduced. However, the contrary is true if the initial loser contests the results, especially outside the courts and in the streets.  

The very tight race between Uhuru Kenyatta and his Jubilee Party and Raila Odinga and the National Super Alliance (NASA) reflects growing food insecurity that, in turn, is the product of drought, which may also be related to climate change. Spring rainfall is down 75 percent from the its five-year average, bringing Kenya’s staple food crop, maize, down 70 percent from its five-year average, according to the UN Food and Agricultural Organization. In response to the drought, food prices are much higher than normal. According to local observers, the price of maize flour is up 50 percent, milk is up 12 percent, and sugar, 21 percent. Food agencies estimate that 2.6 million of 48  million Kenyans are now “food insecure,” with estimates that the number could increase by one million by August. In certain remote areas, food agencies are describing the situation as “one step away from famine.”  The incumbent Kenyatta administration has introduced price controls on maize flour and lifted tariffs on imported maize. The opposition, NASA, sees these steps as too little too late. It is also critical of alleged white-elephant prestige projects, general corruption, and government policies that benefit big farmers and millers, often with close ties to Jubilee. Election Day, August 8, will show the extent to which voter anger at high food prices is directed at the Kenyatta administration. As the incumbent, Kenyatta would normally be the favorite, not least because of the administration’s patronage networks. But that advantage could be undercut by the price of maize.  

Kenya’s elections are scheduled to be held on August 8, exactly two weeks from today, and the race between the two leading presidential candidates is tightening. According to opinion polls, opposition leader Raila Odinga has a slight lead over incumbent president Uhuru Kenyatta. The two leading political parties, Kenyatta’s Jubilee and Odinga’s National Super Alliance (NASA), are hiring elections expertise. NASA alone is planning to station up to one hundred thousand observers at the roughly forty thousand polling places.  There is the possibility that the elections might be postponed because of ballot-printing contract issues. Postponement would probably help the Jubilee as it has deeper pockets than the NSA, and therefore could better sustain a longer campaign period. Some measures put in place in the aftermath of the violent 2007 elections appear to be working. There have been prosecutions for politicians resorting to hate speech and, more broadly, the decentralization measures put in place by Kenya’s new constitution have reduced somewhat the winner-take-all climate that marred Kenyan—and other African—elections in the past. Nairobi, for example, is governed by the NASA coalition. Nevertheless, observers are concerned that hate speech may be occurring at the local level below the national and international radar. Politics remain dominated by tribal identities, and elections have usually been the occasion for violence.    Kenyatta’s Jubilee Party is supported by the Kikuyu and the Kalenjin are likely to support current vice president and Kenyatta running mate, William Ruto. Odinga’s National Super Alliance is a coalition of opposition parties that enjoys the support of many Luo and Lukya, while the Kamba support Kalonzo Musuyoka, vice president from 2008 to 2013 and Odinga’s running mate. Political lines are drawn in part based on ethnic conflicts over water and land use.    Uhuru Kenyatta and Raila Odinga are long-time fixtures of Kenyan national life. On balance, both are pro-American and pro-western, though they have been in public life so long that their public statements can be mined to show the contrary. Kenyatta is the son of Jomo Kenyatta, the leader of Kenya’s independence movement and its first president. Odinga is the son of Oginga Odinga, Jomo Kenyatta’s first vice president. Raila Odinga, 72, was educated at the university level in the former German Democratic Republic and Uhuru Kenyatta, 55, graduated from Amherst College in Massachusetts. Both have extensive business interests and are very wealthy. Uhuru Kenyatta and his current vice president, William Ruto, were indicted by the International Criminal Court (ICC), but the case against them collapsed because of alleged Kenyan government intimidation of witnesses, according to the ICC prosecutor. Odinga, on the other hand, has a reputation as a human rights activist. Some observers think that a Kenyatta victory will be a victory for the status quo, while, despite his age, an Odinga victory might open new political possibilities, especially with respect to fighting against patronage-fueled corruption.  

The United States and Kenya have a long standing military relationship. They are allies in the “war on terror,” of which Kenya has been a major victim. Notable attacks on Kenyan soil include the 1998 Al-Qaeda led bombing of the U.S. embassy in Nairobi where twelve Americans and hundreds of Kenyans lost their lives, and the Westgate Shopping Mall bombings of 2013 by Al-Shabaab, which claimed the lives of nearly seventy Kenyans and expatriates. In addition, Kenya has been embroiled in a war against al-Shabaab in Somalia. U.S. forces are involved in training exercises with the Kenyan Defense Forces. As a result of this conflict, the insurgency has spilt over into Kenya’s northern (Turkana) and Coastal regions (Mombasa and Lamu). This has sparked numerous successful, and unsuccessful terrorist operations throughout the country. In this context, the Obama administration approved a $10 million drone sale to Kenya in 2016. In early 2017, the Obama administration also approved a $418 million sale of armed aircraft to Kenya. This would be the largest sale of U.S. military material to Kenya. Ted Budd the Congressman from North Carolina, led fellow members of Congress in questioning the procurement and contracting dimensions of the sale, however, observers think that the sale will be approved. The Trump administration has yet to signal whether it will continue the close relationship between Kenya and the United states as characterized by the Obama administration. Based on regional security partnerships and the “war on terror,” an early reading is that the Trump administration is likely to maintain, and perhaps even enhance, security cooperation with Kenya. However, human rights advocates will be concerned about Kenyan military abuses, especially with regards to the country’s Somali minority. In Congress, questions remain over the appropriateness of the equipment that the Kenyans wish to buy. The human rights record of the current administration of Uhuru Kenyatta is hardly unblemished. He was accused of gross human rights abuses in the context of the 2007 presidential elections and was indicted by the International Criminal Court. The indictment was later dropped, and the prosecutor claimed that the Kenyatta government refused to cooperate and intimidated witnesses. Kenya faces national elections at the end of 2017, which could again turn violent.

At the end of the recent 28th African Union (AU) summit in Addis Ababa on January 31, a recommendation emerged that collectively member states should withdraw from the International Criminal Court (ICC). The AU is not a party to the Treaty of Rome, which established the ICC, and its recommendation cannot compel individual states to withdraw. According to the media, Nigeria, Senegal, and Tanzania opposed the AU recommendation and other states declined to commit themselves. In the aftermath of the recommendation, on February 1, Nigeria publicly reiterated its intention to remain within the ICC. The most vocal advocates for withdrawal have been Kenya, Burundi, and South Africa. Kenyan President Uhuru Kenyatta and Vice President William Ruto were both indicted by the ICC for crimes connected to their 2007 elections. Both cases collapsed, with the Kenyan government declining to cooperate with the ICC and, possibly, tampering with witnesses. South Africa’s President Jacob Zuma has been widely censured for his failure to hand over Sudan’s Omar al-Bashir when he visited South Africa in 2015 for an AU heads of state summit. Al-Bashir has been indicted by the ICC. As a signatory of the Treaty of Rome, South Africa was obligated to hand him over for trial. Zuma failed to do so and even helped facilitate al-Bashir’s travel back to Sudan. This is apparently a violation of both the Treaty of Rome and South African law. As such, there is currently a case against him still making its way through the South African courts. The Burundian government took steps to withdraw from the ICC following a credible UN investigation of systematic human rights abuses, including the discovery of mass graves. However, in Kenya legislation to bring about withdrawal from the ICC has lapsed. Similar legislation has not been introduced in South Africa. Further, according to Deutsche Welle, both the Kenyatta and Zuma governments appear to be exploring possible amendments to the Treaty of Rome – which implies their continued membership. Nevertheless, sentiment in sub-Saharan Africa is widespread that the ICC “unfairly” has focused on the continent, and ignored abuses elsewhere. Some African intellectuals complain that the ICC has ignored the human rights abuses committed by western nations, including those alleged against the George W. Bush administration with respect to Iraq. African nations often cite the United States as an example of why they should not be beholden to the ICC: the U.S. position is that it supports the ICC while declining to sign the Treaty of Rome. On the other hand, African elites also recognize that there is at present no alternative to the ICC for holding the chiefs of signatory states accountable. Most of the ICC cases brought against Africans have been at the request of African governments at the time, including those involving Kenyatta and Ruto.

This is a guest post by Caila Glickman, volunteer intern for the Council on Foreign Relations’ department of Global Health. Caila is currently a pre-med student at Oberlin College studying chemistry and international relations. Her interests are in medicine, environmental science, and international law. In a vicious dispute over water allocation of the Nile River, Ethiopia, Egypt and Sudan are wading through uncharted waters of international law. The dispute begins in Ethiopia’s attempt to regain control of its contributory river, the Blue Nile, by building the Grand Ethiopian Renaissance Dam (GERD). However, the dam’s legality is being questioned by both Egypt and Sudan—two downstream Nile states eager to maintain the status quo of water allocation. Many believe the Nile River is sourced in Egypt, but it actually stretches from Burundi to the Mediterranean Sea. Egypt receives well over half of the river’s water because the river flows north; however, its two biggest feeders—the White Nile and the Blue Nile—are located in Uganda and Ethiopia, two southern but upstream Nile states with limited access to the Nile’s water. Historically, Egypt and Sudan have exploited the Nile through exclusive treaties that failed to include the upstream countries such as Ethiopia, Uganda, Kenya, and Rwanda. The main treaty, known as the 1959 Nile Waters Agreement, called for the unimpeded flow of Nile waters, but only included Egypt and Sudan in its negotiations and ratification. Egypt uses this treaty to object to the construction of the GERD. Sudan has essentially piggybacked off of Egypt’s objections, as the current system of water allocation benefits the Sudanese. Ethiopia’s right to the dam lies in the Cooperative Framework Agreement (CFA), which was adopted by Nile Basin Initiative member states, or all states that have some claim to the Nile. The CFA says that each Nile state is, “entitled to a reasonable share in the beneficial uses of water resources of the Nile system.” Ethiopia, a contributor of over 86 percent of the Nile River’s flow, receives only 5 percent of the Nile’s water, which is not enough to kick start its development. An electricity deficiency currently ails upstream Nile states and stifles their economic growth capability with constant power shortages. Ethiopia sees the GERD as the answer to the country’s stifling electricity issues. This dam will be used to create the continent’s largest hydropower plant that will fill all demand, generating three times the country’s current electricity production and providing neighboring states with all surplus power. Within the GERD dispute context, the greater issue at hand becomes clear—current international law does not reflect the less-developed riparian countries’ rights to water. In fact, many are cheated out of their water and the power it gives them to develop. As Zadig Abraha, deputy director of the dam’s public mobilization office, said, “To regain our lost greatness, to divorce ourselves from the status quo of poverty… we need to make use of our natural resources, like water.” The dam is a declaration of the country’s determination to pull itself up by its bootstraps. Ethiopia has convinced Egypt and Sudan to sign a declaration of principles that approved dam construction under the condition that studies be done to assess the impact the project will have on Egypt and Sudan. Despite this compromise, the issue will be continually present as developing countries around the world seek to reclaim their water rights to the dismay of developed countries banking on their silence.