Kenya must dump Gaddafi and recognise Libyan rebels

By Donald B Kipkorir

The dictatorial reign of Muammar Gaddafi and his family is reaching the endgame. The denouement is nigh; its closing chapter is open-ended. But Gaddafi can still decide how he wants to exit, though he has two choices only. He can surrender in ignominy and humiliation or he fights to the death. Time is no longer on his side. The vast wealth of his country, which he had confused with family property, can no longer assist him. Bribing African presidents, prime ministers and tribal potentates is now meaningless. The African leaders in shame cannot call for his ouster, but they cannot stop the crashing end.

Kenya has been prevaricating on how to deal with this endgame. Our Constitution, local law and international obligations demand we expel the Libyan embassy staff in Nairobi, and that we expropriate Oil Libya and Laico Regency for the people of Libya.

Article 2 of our Constitution states that international customary law, and ratified treaties and conventions form part of our law. Kenya is a member of the United Nations and its resolutions are binding on us. How we try to wriggle out of our international obligations under the guise of ‘African Union’ rhetoric is an additional example of how low we have sunk.

The United Nations has delegated its executive authority to its Security Council (SC). SC has 15 members, five of whom are permanent and 10 temporary. Its decisions are arrived by unanimity and are binding on all member states of the United Nation. Africa is represented in the SC by South Africa, Gabon and Nigeria. By Resolutions 1970 and 1973 of 2011, the SC unanimously agreed to impose sanctions on the Gaddafi regime, including travel bans and assets freeze. The assets that member-states are called upon to freeze include those of the Libyan Central Bank, Libyan Investment Authority, Libyan African Investment Portfolio and Libyan National Oil Corporation.

Our obedience to international customary law is not optional. International law has so developed that it defines certain international obligations as obligatory on all nations. Cherif Bassiouni, who is regarded as the "Father of International Law" has stated that certain international obligations are such that they become "obligatio erga omnes" and inderogatable. This doctrine of obligatio erga omnes simply means that they bind all states. Prof Bassiouni says such obligations arise from international judicial pronouncements; languages used in treaties, ratifications of treaties and conventions by majority states and also where international investigations on crimes have started.

The Doctrine of jus cogens recognises the crimes of genocide, war crimes, slavery, piracy and war of aggression as demanding international co-operation and obligation. Any local law that violates these peremptory norms is said to be void to that extent.

Gaddafi and his family have been sanctioned by the SC. In addition, together with his son and heir, Saif Al-Islam and their security adviser, Abdullah Al-Sanousi, the International Criminal Court has indicted them. By all definitions, the Gaddafi clan is international criminal fugitives and shouldn’t be offered any direct or indirect sanctuary by any member state of the UN. Kenya must be man enough and expel the Libyan envoys in Nairobi. We must announce to all and sundry our acquiescence with our international obligations. Oil Libya and Laico Regency ought to be taken over on behalf of the people of post-Gaddafi Libya.

Our relationship with Gaddafi Libya was national prostitution by any other name. We gained nothing from them other than bribes. Libya exports nothing, but oil and destabilisation; both of which we don’t need. We import our oil from the Middle East. Our trading relationship at both national and personal level is zero. Oil Libya and Laico Regency do not show in our economic radar. That we got excited that Libya "invested" in Kenya is one of the mysteries of our country. Libya has sovereign wealth estimated at minimum US$150Billion. Its so-called investment in Kenya didn’t even show on its investment portfolio. The Libyan investment in Kenya is breadcrumbs.

The people of Libya have risen up after living in an illusion since 1969. Gaddafi after a coup d’Ètat established a utopia called Jamahiriya (state of the masses) in which he was the absolute leader under the euphemism of "brotherly leader and guide of the revolution." While the rest of the country waited for the revolution in their personal lives, the Gaddafi clan "privatised" the country. The world community has a moral obligation to come to the aid of the Libyan people against a parasitic regime.

The Libyan rebels have come together under the umbrella of Libya Transitional Council (TNC) under the leadership of Mahmoud Jibril and are headquartered in Benghazi. The United States, and the European Countries led by France, Italy, Germany, Turkey and of late United Kingdom have recognised TNC as the legitimate Government of the Libyan people. The Africa continent steeped in corruption, under-development, and poverty and false-democracy are orphaned by the sudden loss of power of its biggest patron in Gaddafi and are still clinging to the fast-fleeting moments of history.

Kenya has a unique historical calling to rise above Africa’s putrid politics and for once be on the right side of history. We have no choice but to recognise the TNC. In recognising the TNC, Kenya will be a moral voice for Africa. Who knows; we may revive and lead the stillborn African renaissance. The only predictable thing is that our current leaders will never fail in disappointing us. They will cling on to Gaddafi even when he has folded his tent in the desert and disappeared to the sunset. Our leaders never realise it is in our strategic interest to recognise the TNC. You only sup with the devil if you have a long spoon. We have supped with Gaddafi yet we have a short spoon and an empty bowl.

The author is an Advocate of the High Court.