Obama Must Keep the Doors Open to Kenya

President Obama should engage in business as usual with the new leader of one our strongest allies in Africa.

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NAIROBI, KENYA - APRIL 9: (KENYA, UGANDA, RWANDA and TANZANIA OUT) Kenya's 4th President Uhuru Kenyatta waves at the crowd on April 9, 2013 in Nairobi, Kenya. With him is General Julius Karangi, Kenya Defence Forces Chief of Staff. Kenyatta received masses of support from the citizens of Kenya despite being under investigation for crimes against humanity.

Stephen Hayes is president and CEO of the Corporate Council on Africa.

Very soon, the White House and the State Department will formulate an approach to dealing with Kenya, one of our most stalwart allies in Africa.

They must do so, for not only is the relationship with Kenya at stake, but so, too, is our credibility in East Africa and beyond. The issue is how does the U.S. government deal with a head of state who is to be tried by the International Criminal Court for crimes against humanity, especially given that he has just been chosen president of Kenya in an election judged free and fair by all observers, including those from the U.S., approved by the Kenyan Supreme Court and accepted by his closest opponent, Raila Odinga?

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In his first weeks as president, Uhuru Kenyatta has shown the daring of a visionary leader. His cabinet is one of the most qualified in Africa, if not the whole world. Nearly all appointments made so far have been based on talent and resume, and not as normal political awards for party loyalty. He has followed the model of President John Kennedy, seeking the "best and the brightest" for his cabinet. As a former Minister of Finance, he is showing a commitment to move Kenya forward and retain leadership of East Africa. Initial signs have been encouraging to the American business community in Kenya as well.

The U.S. administration may have painted itself in a corner before the election when Assistant Secretary of State Johnnie Carson made it known that U.S.-Kenya relations might not be the same if Kenyatta were to be elected, for both Kenyatta, the son of the first  president of Kenya and national hero Jomo Kenyatta, and his Vice President, William Ruto, are both under indictment from the International Criminal Court for their alleged roles in inciting the violence related to the previous Kenyan presidential elections in 2007. Over a thousand people died in the violence. 

Carson did not specify Kenyatta by name, but the implications were clear. To many, including Carson's predecessor Jendayi Fraser, the U.S. was attempting to influence Kenya's elections. How much Carson's statement galvanized Kenyatta's supporters is not known. Kenyatta jumped on Carson's remarks and used them to reinforce Kenyan independence and autonomy from foreign influence and won a narrow victory, enough to avoid a run-off election.

The current situation places the U.S. in a dilemma. To have anything less than normal relations suggests to some that the U.S. wants free and fair elections, but only if the candidate favored by the U.S. is elected. This surely opens us to charges of hypocrisy. If we advocate democratic elections, we must also be prepared to accept the results as the free will of the electorate. 

The Bush Administration had a similar dilemma when it advocated free elections for the Palestinians and Hamas emerged as the victor. It refused to deal with Hamas, stating that Hamas supported terrorism. As a party it did.

The same charge cannot be made of Uhuru Kenyatta, the son of Kenya's greatest hero. Furthermore, Kenyatta has claimed his innocence and said he will support the processes of international law. His trial is scheduled for July of this year. 

Many believe that the International Criminal Court should drop the charges against Kenyatta, believing them to be weak and with little evidence backing the charges. There may be a stronger case against Vice President Ruto. The ICC has said it will not drop the charges against either. The U.S. and the European Union now find themselves hoisted on the petard of their own remarks. For the U.S., the irony is further deepened when one realizes that although we insist that Kenyatta be bound by the indictment of the ICC, the United States is not a signatory of the ICC and has refused to be bound to any of its conditions. What can be done or what should be done?

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Although President Obama has stated that relations will remain normal, the election of Kenyatta may have already affected Obama's proposed trip to Africa in 2013. He has been under some pressure to visit Africa, something he really has not done since coming into office other than with a brief stopover in Ghana on the way back from Russia in 2009. 

Had Odinga been the victor, Kenya was almost certainly on the itinerary. Kenya and Ethiopia are the two linchpins to our East Africa strategy, economically and politically, especially as it regards fighting terrorism in the region. Kenya is by far the region's most developed economy, with a vibrant private sector. Many American companies operate in Kenya and have their African headquarters in Nairobi, including General Electric and others. It is the economic beacon for the region. 

Tanzania may now be one of the destinations of Obama's Africa tour rather than Kenya. This will not go down well in Kenya and will make relations and cooperation more challenging. Furthermore, the State Department has not yet decided how it will handle a visa request for Kenyatta should he be invited to any part of the United States except for U.N. meetings. Imagine the repercussions were we to refuse a request to visit the United States by the head of state of one of our historically closest allies. African nations will be watching the U.S. response as well, as many are lukewarm at best towards the International Criminal Court, believing it singles out Africans especially.

If the International Criminal Court drops the charges against Kenyatta, the U.S. position becomes immeasurably easier, though personal relationships may remain tense. However, Kenyatta has said that he will cooperate and if the U.S. justice system is based on "innocent until proven guilty" Kenyatta should be treated as an innocent man by this country. If he refuses to cooperate, however, then the U.S. must make a decision between a seemingly principled approach and being pragmatic, accepting the will of the majority of the Kenyan electorate, and take a 'business as usual' approach to Kenya. 

Accepting the will of the people in a free and fair election, however, is also a principled approach. Obama need not have a state dinner for Kenyatta were he to visit the United States, but our doors should remain open to the leader of one our strongest allies in Africa, unless he is indeed found guilty by the International Criminal Court. Until then, we should work with the people of Kenya and its elected leadership as closely as possible.

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