A Country that Disrespects Other Countries Will Disrespect Its Citizens

A precious point has been lost in the ongoing debate whether Rwanda or Burundi should nominate the next EAC secretary general to replace Juma Mwapachu, namely, Kenya's increasingly cavalier attitude towards its international obligations.

A precious point has been lost in the ongoing debate whether Rwanda or Burundi should nominate the next EAC secretary general to replace Juma Mwapachu, namely, Kenya's increasingly cavalier attitude towards its international obligations.

Consider. Vice-President Kalonzo Musyoka's current political gallivanting in the continent is meant to solicit support for Kenya's intended breach of the Rome Statute.

On the home front, Kenya seems to have persuaded Uganda and Tanzania to support its insidious ploy to breach both the letter and spirit of article 67 of the East African Community Treaty.

Article 67 is explicit that "the Secretary General shall be appointed by the summit upon nomination by the relevant head of state under the principle of rotation."
It seems that the Kenya officialdom now believes that it has a good chance of collaring the secretary generalship of EAC for one of the boys if the rotational principle is junked.

There are three reasons why Kenyans -- and other East Africans -- must resist this play-fast-and-loose and damn-the-consequences attitude.

First, all international obligations are voluntarily assumed and the rest of Africa should not lay out the life rafts when Kenya hits panic stations fleeing from legal duties it foisted on itself.
Second, a state's roguish and thuggish approach to law at the international level often mirrors a roguish and thuggish approach to law at the national level.

Third and last, a nation of honour and pride is what the new Constitution was to usher in and Kenya's ongoing legal licentiousness is clearly a leap into a past most thought buried.
Let us begin with the first point. Other than customary international law, treaties are the primary means by which a state acquires obligations in international law.

Treaties are voluntary agreements that a state enters into after expert advice by its lawyers and consultations with national constituencies.

Once signed and ratified, they are sources of binding obligations. The fundamental principle of international law is that "agreements shall be kept."
Other states have a legitimate expectation that their co-signatories are not ratifying merely to deceive.

Treaties are not only voluntarily entered into, a state may, if the treaty allows, also enter reservations against clauses it does not like.
For example, Rwanda chose not to ratify the Rome statute. Kenya chose to ratify it.

Kenya chose to enter no reservations to the East African Community Treaty. It should face its full rigour.
Treaties are not gumboots to be trooped out where there is sludge and binned when the sun shines.

Given this, Kenya's attempts to finagle Africa's support for its unprincipled attack on the Rome Statute and the ICC or to enlist Tanzania and Uganda to treat Rwanda and Burundi as second tier members of the EAC are back-door stratagems for avoiding voluntarily-assumed obligations.

Unfortunately for the government, this chicanery, for that is what it is, does not have the support of Kenyans.
Opinion polls consistently show that a majority of Kenyans want those accused of involvement in post-election violence to go to The Hague.

As regards the EAC, Kenyan businesses have done the best, by far, in the region: they would not want arguments of dubious legality to imperil the warm hospitality the rest of East Africa has so far given them.

Rogue state Secondly, keeping faith with a ratified treaty is a matter of ethical consistency.

A country that is a rogue at the international level is usually a rogue on the national level too.
Studies show that democracies rarely go to war with each other. It is easy to see why.

A country committed to government by force of reason rarely, if ever, needs the reason of force to win its case.
Similarly, a country that treats binding international obligations as if they were a prisoner's code of ethics -- to be obeyed only when the jailor is not looking -- is unlikely to treat its own constitution with any seriousness.

There is, then, a fundamental point here. Those Kenyans now cheering the government on should remember that a state that cheats its way out of its obligations or is impervious to persuasion by other sovereign states is probably also likely to be perfidious and impervious to persuasion by its own citizens.

Finally, the legal absurdities now afoot are precisely what most of us thought we were over and done with when we voted in the new constitution last year.
For years, Kenya behaved like an outlaw, breaching both its own law and international commitments with reckless abandon.

In October 1995, for instance, President Daniel arap Moi even threatened to arrest members of the international tribunal who were pursuing well-known genocidaires who had fled Rwanda into Kenya.

The transition period that Kenya is in right now was meant to be a moment of closure: a time to recall and regret all lost opportunities to do right in the past and a time to forge a moral climate for a new nation under law.

In this larger scheme, the point of who the next Secretary General of the EAC is seems trivial.

And perhaps, on the long view, it may be so. Yet the fact that in a period of 60 days Kenya has threatened to break two important international commitments should give everybody pause.

After all, this is all happening before the country begins in earnest to implement its new constitution.

Wachira Maina is a constitutional lawyer. He lives and works in Kigali.



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