Should Kenya dump the West and head East over ongoing ICC trials?

By Makau Mutua

Twitter@makaumutua

Kenya today faces an existential moment. The country is deeply scrutinising its soul – and is flummoxed by what she sees.

At 50, Kenya is staring a possible divorce with the West – its key patron since independence – in the eye. The crux of the matter – which has brought this umbilical relationship to the brink of disaster – is The Hague trials against President Uhuru Kenyatta and Deputy President William Ruto.

Mr Kenyatta wants the trials halted, or deferred, because he sees them as an imperial affront to Kenya’s sovereignty. The West so far has said “nyet” – and insisted on Mr Kenyatta’s cooperation with the International Criminal Court. This is the question – can Kenya afford a train-wreck with the West?

Let me peel your eyes so you can see. Kenya has already had a train-wreck with the West. There are only three questions that remain – how bad is the collision, whether the damage gets worse, and can the rupture be fixed? Have Kenya and the West crossed the Rubicon? Have we reached a point of no return?

It matters not whether you support, or oppose, Mr Kenyatta’s and Mr Ruto’s trials at the ICC.

The truth of the matter is that Kenya’s relations with the West have changed – forever. I regard Mr Kenyatta’s bold and fiery speech at the African Union two weeks ago – the most important of his young presidency – the key turning point. It was a historic performance.

No Kenyan president has ever uttered such strong words against the West. Not even at the height of the frosty relations between Kenya and the West did former President Daniel arap Moi berate the Occident with such vigour. One might be tempted to think it was simply bluster to the AU gallery, or a cunning tactic to cower the ICC and the West for a deferral.

Banish the thought. Mr Kenyatta’s speech was a loud announcement to “reset” his relationship with the West. That’s how the West saw it.

Whether the West, whose democracies pivot on the rule of law, is willing to choke the life out of the ICC on Mr Kenyatta’s behalf remains to be seen.

No one can underestimate the predicament facing Mr Kenyatta – and the West – over the ICC trials.

The West has hard strategic interests, which include fighting terror, for which it needs Kenya. But the West can’t simply declare Mr Kenyatta above the law, and stop the cases against him and Mr Ruto.

So, what gives? I don’t know the answer to that one – my crystal ball is yet to come into focus.

But I know this – Kenyans have to be very careful no matter the outcome because a lot is at stake. No decision should be precipitous. Nor should impunity be allowed to thrive. One single strategic error, from whichever side, and the country could be set back decades.

I know there are those who want to say to hell with the West. Most in this school of thought see China and the East as the New Canaan.

They see a “declining” America and the West as passé. Let me ring a word of caution. A key principle of foreign policy – for any state – should be to “add” not “subtract” allies.

This is especially true for a country on the cusp of takeoff like Kenya. And as in personal relationships, “keep your friends close, but your enemies even closer”.

This is particularly true if your enemy remains the sole superpower, even if you deem it a “declining” one.  Better the devil you know than the one you don’t.

I’ve said before that Kenya is a “Eurocentic” country by accident of colonial history.

Kenyans aren’t about to “look East” spiritually and intellectually. Not even if China becomes the world’s largest economy. China has goods to sell the world.

But – and you can take this to the bank – the land of Confucius has yet to sell any captivating ideas to a global audience. China must figure out its equivalent of “democracy,” “human rights,” and “rule of law” for Kenya to “look East”.

It’s not enough China’s rise is simply a crude mimicry of Western capitalism. Great countries sell more than factory gadgets. Ideas matter more than goods. Whether Western ideas impose “mental slavery” on Africa is a different matter.

My point is that Kenya can dump the West. No one doubts the state’s ability to sever ties with its historic allies over the ICC trials. It’s one thing to have the ability, but quite another to exercise it. The wise course of action is for Mr Kenyatta and Mr Ruto to go through their trials at The Hague.

I would advise against playing Russian roulette with global powers. Let’s not tempt the fate of the unknown.

Writer is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC.