CONGO: ON THE BRINK

It perhaps came as no surprise to global affairs observers when the Supreme Court of the Democratic Republic of Congo on Friday, 16th December 2011, confirmed the victory of the incumbent President Joseph Kabila following recent elections in the country.


Democratic Elections

The election of 28th November 2011 was the country’s second democratic elections in forty years. The first democratic election was held in 2006 and ushered in the presidency of Joseph Kabila. On that occasion, Joseph Kabila won a run-off poll having amassed 58% of the votes. However Mr. Kabila has been in charge since 2001 following the assassination of his Father, Laurent Kabila in the same year.


Supreme Court’s Decision

The Supreme Court President Jerome Kitoko rejected a challenge by the opposition to annul the election results and declared Mr Kabila winner with 48.95% of the votes. Mr Kabila’s main challengers Etienne Tshisekedi and Vital Kamerhe polled 32% and 7% respectively. Following the elections, Mr Tshisekedi voiced strongly his disapproval with what he thought was a flawed election process and has since proceeded to declare himself president. Mr Kamerhe on the other hand has indicated that he would mount a challenge against the results by way of court action.


Flawed Elections

International observers who followed the elections with eagle eyes trained on the electoral process have also loudly voiced their disapprovals with the election results. Following the publication of the results, the US State Department stated that the elections were “seriously flawed”. The US Ambassador to the Democratic Republic of Congo, James Entwistle proferred: “The US believes that the management and technical execution of these elections were seriously flawed”. The European Union (EU) also buttressed this assertion in adding that the election process was “chaotic”. The group of 26 teams of observers dispatched by the non-profit US based Carter Centre to monitor the elections also concluded that the results “lack credibility”.


Support for Kabila

Mr Kabila will however take heart from the fact that the African Union (AU), led by one of Africa’s numerous dictators, Teodoro Obiang Nguema Mbasogo of the Equatorial Guinea, concluded that the polls were “successful”. Leaders from Africa's Great Lakes region have also voiced support for President Joseph Kabila following the disputed poll results and urged Mr Kabila’s opponents to accept the result. Leaders from Burundi, Central African Republic, Kenya, Tanzania, Uganda and Zambia attended the meeting. In its statement to the press following the end of the two-day International Conference on the Great Lakes Region summit in Kampala, Uganda, the group congratulated the president of DRC on his re-election and urged “those not satisfied with the election results to accept them and work towards building the country".


Post-Election Violence

Prior to the elections, it was feared that civil unrest would result following its conclusion due to simmering tensions in the country. As expected, post election violence has unfortunately marred the ‘victory’ of Joseph Kabila. It has been reported that civilians have been killed in the aftermath, neighbourhoods set on fire, roads and public infrastructure have been destroyed, looting and a total breakdown of law and order is also widespread. Europe has also not emerged unscathed from the recent events in central Africa. It was reported last week that police in London were called upon to quell riots in the city sparked by protesters challenging the results of the elections. Scotland Yard reported that a total of 139 arrests were made in connection with offences including criminal violence, violent disorder and affray.


On the Brink of Civil War

Recent events are a setback to a nation which has been trapped in the vortex of conflict for decades which has resulted in the deaths of an estimated 4 million people. The end of the civil war in 2003 was expected to usher in a period of stability unknown to a large number of the population. Africa’s second largest country and the world’s twelfth largest country seems on the brink of a return to civil unrest and further bloodshed. It goes without saying that the country has been failed by its previous leaders. One wishes that its current leaders can steer the country towards a different path, but recent events seem to indicate that its previous and current leaders are cut from the same cloth. 1worldinternational certainly hopes that Laurent Kabila, Mr Kabila’s inner circle and the opposition leaders can prove us wrong.

THE KENYAN INVASION OF SOMALIA: IS THIS TAKING SELF DEFENCE TOO FAR?

On Thursday of the past week, the Kenyan government confirmed that its troops had been sent into the territory of its neighbours, Somalia, in response to the recent spates of kidnappings allegedly perpetrated by the al-Shabab militia who operate out of Somalia.


The Kenyan Incursion

Al-Shabab, which is said to be strongly linked to al-Qaeda and who exercise control over Southern and central Somalia are blamed for the killing of Briton, David Tebutt and the abduction of his wife from a Kenyan resort, the killing of a French woman following her kidnap from her holiday home in Kenya and the kidnap of aid workers – Montserrat Serra and Blanca Thiebout – of Medicins Sans Frontieres (MSF) who were recently seized from a refugee camp at the Kenya-Somalia border. “The security of our country is paramount. We will defend our territorial integrity through all measures necessary to ensure peace and stability” stated Kenyan President Mwai Kibaki to the press on 20th October 2011. Mr Kibaki added that “all necessary measures” included military operation within and outside Kenya.


Legal Basis

The Kenyan government insist that the UN Charter legitimises its incursion into foreign territory. “These measures will involve invoking Article 51 of the UN Charter that pronounces self-defence as an inherent right and which is also keeping with the current Kenyan constitution,” said the Kenyan Minister for Internal Security, George Saitoti. The legal instrument referred to by Mr Saitoti, that is Article 51 of the UN Charter, provides that: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the UN.” In line with this provision, it would appear that Kenya is thus legally entitled to resort to force.


The Somalian Position

However, the Somalian position is acutely converse to the views espoused by the Kenyan government which justifies its operation on Somalian soil. Somalia’s envoy to the UN, Omar Jamal, has stated that the Kenyan incursion constituted a violation of its sovereignty. Mr Jamal stated: “There is a very serious concern from the Kenyan government that there have been some kidnappings in their country, but at the same time I think that to take the very unilateral action of going into Somali territory is a breach of international law.” In an interview, the contents of which was published in an article in The Independent on 17th October 2011, the Somalian Ambassador to Kenya, Mohammed Ali Nur, reiterated the views of Omar Jamal on what he perceives as a clear violation of its territory by Kenya. “As a sovereign country we cannot condone any country crossing our border…we will not allow any country to invade us.”


Self defence against non-State actors

Of course, every country has a right to defend itself against armed attacks and in this vein many will agree that the Kenyan government is entitled to take measures, military and otherwise in response. However, the issue of the legality of counter-measures adopted by Kenya is threatening to strain the relationship between the UN-backed Somalian transitional government and the Kenyan government. Unfortunately the text of the UN Charter fails to resolve the disagreement between the countries. The difficulty lies in the fact that the UN Charter was drawn up at a time when armed attacks by non-State actors against another State was a rarity, or perhaps not anticipated to constitute the problem which has achieved conundrum-like status. It was therefore left for case law, academics, UN resolutions and the International courts to attempt to purify the muddied waters. Importantly, Judges at the International Court of Justice (ICJ), whilst considering the legality of the construction of a wall in occupied Palestinian territory, discussed the matter of whether Article 51 of the Charter recognises the existence of an inherent right to self defence in the case of an attack on a State by a non-State actor. Needless to say, the great opportunity which lent itself to these legal practitioners to clarify matters was squandered following disagreements over the interpretation of the said Article of the Charter.


Muddied waters

However, Resolution 1368 (2001) and Resolution 1373 (2001) which were adopted in the aftermath of the 9/11 attacks both appear to acknowledge a right to respond to such attacks although there has been no resolution since then with similar wording or impact. If this is an endorsement of the above, then it would appear that the Kenyan government’s actions are legal under international law. However this assertion would also seem to suggest that Rwanda may legitimately attack Congo DRC for harbouring forces aligned with the Democratic Forces for the Liberation of Rwanda (FDLR) which threaten the Rwandan border, or that Uganda may be entitled to legitimately launch military action against Congo DRC for harbouring Joseph Kony’s Lord’s Resistance Army (LRA) which has waged a 20 year rebellion against the Ugandan government of President Yoweri Museveni. In addition, the prospect may also exist of a full blown conflict between the NATO-propped Afghanistan government and Pakistan over what the US perceive to be the Pakistani government’s support for al-Qaeda and the Haqqani militia who utilise Pakistani territory in making their forays into Afghanistan. In the earlier referred-to Congo DRC cases, the Congolese government seems to lack the capacity to expel, as is the case in Somalia, the terror groups from operating within its territory. Given the increasingly complex world in which we live in, it goes without saying that the immediate clarification of this issue is imperative if the current misunderstanding relating to the text and scope of Article 51 is not to be replicated in the future.