Washington, DC — Kenya will pay the price of an estimated Sh1.2 billion in withdrawn military support for its unwillingness to shield American personnel from prosecution at the International Criminal Court, it has been revealed.
The showdown could prove much more costly than the United States has previously acknowledged and would include withdrawal of funds for fighting terrorism, building democracy and resolving conflicts in the Horn of Africa.
The US has previously stated in public that the withdrawal would only relate to the training of Kenyan military personnel in the States.
But Government spokesperson Alfred Mutua said the Cabinet would study the request by the Americans "and make a decision that is in the best interests of the Kenyan people. Not in the interests of others."
"We believe that we have to do what is right for the Kenyan people. We are members of the global community and we are law-abiding. Already, we signed up to the ICC and then the American request came. We will look at it and the Cabinet will weigh all the options," Dr Mutua said.
Earlier on Tuesday, US ambassador William Bellamy warned that military support could be suspended in coming months and said: "We have discussed it for two years. It's up to Kenya to decide."
The diplomat, who was responding to questions from journalists in Vice-President Moody Awori's office, said: "There is no threat to withdraw military aid. We have explained that exercises and training opportunities continue. The suspension could come in coming months. But this is not about threats and we don't want to arm-twist. It's the implementation of a law that was passed by Congress."
The ICC is a permanent international tribunal that will try individuals responsible for the serious international crimes such as genocide. It will exercise authority and prosecute nationals from the countries that sign the treaty or people in the territories of signed-up governments.
Details from Washington show that the Bush administration may deprive Kenya of Sh616 million ($8 million) in funds for fighting terrorism, building democracy and resolving conflicts in the Horn of Africa and a similar amount in military aid.
The loss would be a result of an amendment added last December to the American Service Members' Protection Act to prohibit US military assistance to countries that have signed up to the formation of the ICC unless they have entered into no-surrender agreement with the US.
The law restricts US participation in any peacekeeping mission and prohibits military assistance for those nations that ratify the ICC Treaty, with the exception of Nato member countries and other major allies such as Australia, Egypt, Israel, Japan, South Korea and New Zealand.
The so-called Nethercutt Amendment, named for its chief Republican sponsor, intensifies US efforts to coax developing countries into signing bilateral immunity deals with the United States.
The White House says in its budget request that the Sh616 million for fiscal 2006 "will help Kenya strengthen democratic institutions, support Kenya's nascent anticorruption campaign and assist critical economic and government reform programs."
The funds will also be used to "reinforce Kenya's counter-terrorism capacity, improve its legal system and enhance the government's interaction with marginalised Muslim communities along the Swahili coast."
The economic support programme also "buttresses Kenya's vital regional leadership as mediator in the Somalia and Sudan peace processes."
The details show that Kenya could lose a further $7.6 million in US military training and weapons procurement aid if it declines to promise not to refer Americans to the ICC without US permission.
According to White House budget estimates for the fiscal year beginning in October, President Bush is asking Congress to provide Sh585 million ($7 million) for Kenya for the Foreign Military Financing programme and an additional Sh50 million ($650,000) for the International Military Education and Training Programme.
These funds would be used to procure and maintain US-made military equipment such as radars/sensors, night vision devices, patrol craft, and medical vehicles, according to the White House documents. Specialised border and coastal security training would be provided as well, the budget request says.
The pending loss of Sh1.2 billion in military and economic support funds, however, represents less than 10 percent of total US assistance to Kenya.
In all, the Bush administration is asking Congress to provide some Sh15 billion ($200) million in aid to Kenya in fiscal 2006.
Included in that sum is $16 million in development assistance, Sh900 million ($12 million) for child health, Sh900 million ($12) million in food aid, and Sh12.4 billion ($162 million) to help combat the Aids epidemic.
Critics of the US stance say it will jeopardise vital American interests in Kenya and in other countries that also decline to sign a so-called Article 98 agreement intended to shield American personnel from prosecution at the ICC.
The cuts in military aid are mandated under the American Service members' Protection Act of 2002 for countries not closely allied with Washington that have signed the ICC treaty but not entered into a bilateral immunity deal.
The law reflects the Bush administration's and the Republican Congress' opposition to the world's first permanent war-crimes court, which was established in 2002.
The United States supports the UN war-crimes tribunal for Rwanda and the former Yugoslavia but worries that its own troops could be unfairly prosecuted through the ICC.
In a May 30 statement responding to the current issue of the Sunday Nation reports about the pending aid withdrawals, the US embassy in Nairobi said "the delivery of needed military equipment will continue, including patrol boats for the Kenyan Navy due to arrive in late 2005 or early 2006."
The embassy did acknowledge that "some forms of military assistance have been suspended because of the absence of a bilateral non-surrender agreement (Article 98) between the United States and Kenya," but it did not specify the amount or type of that assistance.
American supporters of the International Criminal Court say that the pending Sh1.2 billion ($15.6 million) reduction runs counter to what the US hopes to achieve in Kenya.
"This is a clear example of the Bush administration shooting itself in the foot," says Heather Hamilton, vice president of a foreign-policy lobbying group in Washington called Citizens for Global Solutions.
"The justification given for the use of these funds in the White House budget document is itself the best argument for not cutting them."
The White House argues in favour of its aid request by stating, "Kenya is the linchpin of East African stability and security. Kenyan support for the war on terrorism has been solid and wholehearted, Kenya remains a principal point of access for US military and relief operations within the region. A vital partner in the global war on terrorism, Kenya also demonstrates regional leadership in peacekeeping and diplomacy."
The Nethercutt Amendment provides an exemption from the cuts for countries covered under the Millennium Challenge Account, an aid programme that rewards compliance with anti-corruption, human rights and economic-reform standards.
Kenya has been designated as one of 7 countries on the threshold of receiving Millennium Challenge aid but is not included among the 16 countries already deemed eligible for the Millennium programme.
At least four other sub-Saharan countries - Tanzania, South Africa, Benin and Mali - are likely to be punished for not signing Article 98 agreements. Benin and Mali qualify for Millennium aid, however, and will thus presumably be spared the cuts in economic support funds.
The American Service members' Protection Act automatically exempts Nato member-countries and other major US allies such as Australia, Egypt, Israel and Japan. The law also gives President Bush the authority to waive the military aid reductions for other countries.
Kenya is unlikely to be given such a waiver, according to Ms Hamilton.
A total of 100 countries, including 36 in Africa, have signed Article 98 agreements with the United States. The Bush administration argues that these bilateral immunity pacts are needed to protect American personnel from frivolous or politically motivated prosecutions.
American officials have further maintained that the United States has the right to withhold aid from countries that do not agree to shield Americans from the ICC.
But supporters of the court say its founding treaty contains strong safeguards against the type of prosecutions that the United States fears.