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Compliance among weak states: Africa and the counter-terrorism regime

  • BETH ELISE WHITAKER

Abstract

This article examines levels of compliance with the counter-terrorism regime in Africa, where weak states might have been expected to conform. Instead, even under American pressure, some governments have seized the anti-terrorism rhetoric while others have been more reluctant. A comparative analysis of Kenya, Tanzania, and Uganda demonstrates that domestic political factors largely explain this variation; compliance is highest in countries with the least democratic institutions and minimal mobilisation of domestic constituencies. Aid dependence and the perception of a terrorist threat also play a role. To the extent that popular pressures in transitional democracies reduce compliance, the article raises questions about the legitimacy and effectiveness of the counter-terrorism regime.

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1 At the time this article was accepted for publication in November 2008, the counter-terrorism policies of the Bush administration were collectively known as the ‘War on Terror’. Since then, the Obama administration has stopped using that term, choosing instead the label ‘overseas contingency operations’. The counter-terrorism strategies pursued by the Obama administration are not significantly different from those of its predecessor, however, particularly in the region under consideration here (Africa).

2 Krasner, Stephen D., ‘Structural causes and regime consequences: regimes as intervening variables’, International Organization, 36:2 (1982), pp. 185205 .

3 Puchala, Donald J. and Hopkins, Raymond F., ‘International regimes: lessons from inductive analysis’, International Organization, 36:2 (1982), pp. 245275 .

4 Young, Oran R., ‘Regime dynamics: the rise and fall of international regimes’, International Organization, 36:2 (1982), pp. 277297 .

5 The CTC's mandate was later expanded to include monitoring the implementation of Security Council Resolution 1624 (2005), which called on states to prohibit incitement to commit acts of terrorism.

6 There were twelve UN counter-terrorism conventions and protocols at the time of Resolution 1373 in 2001; since then, four more have been added.

7 Rosand, Eric, ‘Security Council Resolution 1373, the Counter-Terrorism Committee, and the fight against terror’, American Journal of International Law, 97:2 (2003), pp. 333341 .

8 See Peter Romaniuk's article in this issue for a discussion of how the FATF's initial anti-money laundering focus was adapted after 9/11 to address the problem of terrorist financing.

9 Haubrich, Dirk, ‘September 11, Anti-Terror Laws and Civil Liberties: Britain, France and Germany Compared’, Government & Opposition, 38:1 (2003), pp. 328 ; Foot, Rosemary, ‘Collateral damage: human rights consequences of counterterrorist action in the Asia-Pacific’, International Affairs, 81:2 (2005), pp. 411425 ; Ramraj, V. V., Hor, Michael and Roach, Kent (eds), Global Anti-Terrorism Law and Policy (New York: Cambridge University Press, 2005) ; Whitaker, Beth Elise, ‘Exporting the Patriot Act? Democracy and the ‘War on Terror’ in the Third World’, Third World Quarterly, 28:5 (2007), pp. 10171032 .

10 Joyner, Christopher C., ‘The UN and terrorism: rethinking legal tensions between national security, human rights, and civil liberties’, International Studies Perspectives, 5:3 (2004), pp. 240257 .

11 For useful reviews of this literature, see Haggard, Stephan and Simmons, Beth A., ‘Theories of international regimes’, International Organization, 41:3 (1987), pp. 491517 . See also Hasenclever, Andreas, Mayer, Peter and Rittberger, Volker, Theories of International Regimes (New York: Cambridge University Press, 1997) .

12 Keohane, Robert O., ‘The demand for international regimes’, International Organization, 36:2 (1982), pp. 325355 .

13 Of course, as discussed further below, some leaders have been happy to accept the imposition of this regime as a way of gaining greater control over their domestic political space. Even so, the form and shape of the counter-terrorism regime clearly have been laid out by more powerful actors.

14 Young, ‘Regime dynamics’, p. 284.

15 See Karthika Sasikumar's article in this issue.

16 See Peter Romaniuk's article in this issue.

17 Rosand, Eric, ‘The UN-Led Multilateral Institutional Response to Jihadist Terrorism: Is a Global Counterterrorism Body Needed?’, Journal of Conflict and Security Law, 11:3 (2007), pp. 399400 .

18 Young, Oran R., Compliance with Public Authority (Baltimore: Johns Hopkins University Press, 1979) ; Chayes, Abram and Chayes, Antonia Handler, ‘On compliance’, International Organization, 47:2 (1993), pp. 175205 ; Mitchell, Ronald B., ‘Regime design matters: intentional oil pollution and treaty compliance’, International Organization, 48:3 (1994), pp. 425458 ; Downs, George, Rocke, David and Barsoom, Peter, ‘Is the Good News about Compliance Good News about Cooperation?’, International Organization, 50:3 (1996), pp. 379406 .

19 Simmons, Beth A., ‘Compliance with International Agreements’, The Annual Review of Political Science, 1 (1998), pp. 7593 .

20 Mearsheimer, John, ‘The False Promise of International Institutions’, International Security 19:3 (1994–95), pp. 549 .

21 Keohane, Robert O., After Hegemony: Cooperation and Discord in the World Political Economy (Princeton: Princeton University Press, 1984) ; Simmons, Beth A., ‘International Law and State Behavior: Commitment and Compliance in International Monetary Affairs’, American Political Science Review, 94:4 (2000), pp. 819835 .

22 Chayes, Chayes and, ‘On compliance’; Weiss, Edith Brown and Jacobson, Harold K. (eds), Engaging Countries: Strengthening Compliance with International Accords (Cambridge: MIT Press, 1998) .

23 Sikkink, Kathryn, ‘Human rights, principled issue-networks, and sovereignty in Latin America’, International Organization, 47:4 (1993), pp. 411441 ; Slaughter, Anne-Marie, ‘International Law in a World of Liberal States’, European Journal of International Law, 6:4 (1995), pp. 503538 , Martin, Lisa L., Democratic Commitments: Legislatures and International Cooperation (Princeton: Princeton University Press, 2000) .

24 Simmons, ‘International Law and State Behavior’; Simmons, Beth A., ‘The Legalization of International Monetary Affairs’, International Organization, 54:3 (2000), pp. 573602 ; Dai, Xinyuan, ‘Why Comply? The Domestic Constituency Mechanism’, International Organization, 59:2 (2005), pp. 363398 ; Dai, Xinyuan, ‘The Conditional Nature of Democratic Compliance’, Journal of Conflict Resolution, 50:5 (2006), pp. 690713 .

25 Franck, Thomas, The Power of Legitimacy Among Nations (New York: Oxford University Press, 1990) ; Kratochwil, Friedrich V. and Ruggie, John Gerard, ‘International Organization: A State of the Art on an Art of the State’, International Organization, 40:4 (1986), pp. 753775 ; Hawkins, Darren, ‘Explaining Costly International Institutions: Persuasion and Enforceable Human Rights Norms’, International Studies Quarterly, 48:4 (2004), pp. 779804 .

26 Young, Oran R., ‘The Effectiveness of International Institutions: Hard Cases and Critical Variables’, in Rosenau, James N. and Otto-Czempiel, Ernst (eds), Governance without Government: Order and Change in World Politics (Cambridge: Cambridge University Press, 1979) .

27 Chayes, and Chayes, , ‘On compliance’; Sonia Cardenas, ‘Norm Collision: Explaining the Effects of International Human Rights Pressure on State Behavior’, International Studies Review, 6:2 (2004), pp. 213231 ; Nikolay Marinov, ‘Do International Institutions Punish Heretics More Than Infidels?’, paper prepared for presentation at the International Studies Association annual meeting, Montreal, Canada (2004).

28 Simmons, ‘Compliance with international agreements’, p. 78.

29 Chayes and Chayes (‘On compliance’) allow for a sort of buffer zone between strict compliance and non-compliance with their notion of an ‘acceptable level of compliance’.

30 Stiles, Kendall W. and Thayne, Adam, ‘Compliance with International Law: International Law on Terrorism at the UN’, Cooperation and Conflict, 41:2 (2006), pp. 153176 .

31 They use the International Terrorism: Attributes of Terrorist Events (ITERATE) dataset.

32 Of course, not all leaders who perceive themselves as threatened by terrorism will comply with the counter-terrorism regime. For whatever reason, they may not regard the prescriptions of the regime as appropriate or desirable to address the threat, which raises questions about the legitimacy of the regime.

33 Väyrynen, Raimo, ‘Funding Dilemmas in Refugee Assistance: Political Interests and Institutional Reforms in UNHCR’, International Migration Review, 35:1 (2001), pp. 143167 .

34 Gould, Erica R., ‘Money Talks: Supplementary Financiers and International Monetary Fund Conditionality’, International Organization, 57:3 (2003), pp. 551586 ; Nielson, Daniel L. and Tierney, Michael J., ‘Delegation to International Organizations: Agency Theory and World Bank Environmental Reform’, International Organization, 57:2 (2003), pp. 241276 .

35 Chayes and Chayes, ‘On compliance’, p. 204. Critics of the managerial school argue that incentives do not always work and punitive sanctions can be necessary to enforce compliance. See Downs, Rocke, and Barsoom, ‘Is the Good News about Compliance Good News about Cooperation?’; Marinov, ‘Do International Institutions Punish Heretics More Than Infidels?’

36 Zhao, Jimin, ‘The Multilateral Fund and China's Compliance with the Montreal Protocol’, Journal of Environment and Development, 11:4 (2002), pp. 331354 .

37 Whitaker, Beth Elise, ‘Funding the International Refugee Regime: Implications for Protection’, Global Governance, 14:2 (2008), pp. 241258 .

38 Of course, donor governments have a range of foreign assistance priorities, some of which may conflict with and/or override counter-terrorism at times.

39 Milner, Helen V., Interests, Institutions, and Information: Domestic Politics and International Relations (Princeton: Princeton University Press, 1997) ; Martin, Democratic Commitments; Dai, ‘Why Comply?’; Dai, ‘The Conditional Nature of Democratic Compliance’.

40 Young, Compliance with Public Authority; Sikkink, ‘Human rights, principled issue-networks, and sovereignty in Latin America’.

41 Fearon, James D., ‘Domestic political audiences and the escalation of international disputes’, American Political Science Review, 88:3 (1994), pp. 577592 .

42 Slaughter, ‘International Law in a World of Liberal States’.

43 Martin, Democratic Commitments.

44 Weiss and Jacobson, Engaging Countries.

45 Kahler, Miles, ‘Conclusion: The Causes and Consequences of Legalization’, International Organization, 54:3 (2000), pp. 661683 ; Dai, ‘The Conditional Nature of Democratic Compliance’.

46 Simmons, ‘The Legalization of International Monetary Affairs’.

47 Haggard, Stephan, Pathways from the Periphery: The Politics of Growth in the Newly Industrializing Countries (Ithaca: Cornell University Press, 1990) ; Evans, Peter, ‘The State as Problem and Solution: Predation, Embedded Autonomy, and Structural Change’, in Haggard, Stephan and Kaufman, Robert R. (eds), The Politics of Economic Adjustment: International Constraints, Distributive Conflicts, and the State (Princeton: Princeton University Press, 1992) .

48 Dai, ‘Why Comply?’; Dai, ‘The Conditional Nature of Democratic Compliance’.

49 Dai, ‘The Conditional Nature of Democratic Compliance’, p. 701.

50 Admittedly, the selection of these countries is not random; I have conducted field research in both Kenya and Tanzania and visited Uganda on multiple occasions.

51 There is some question as to whether this heightened American attention to Muslims in East Africa is warranted. There is little evidence that Islamic radicalism has gained much support in the region, and the recent mobilisation of the Muslim communities in Kenya and Tanzania is motivated primarily by local concerns (political inclusion, economic development, etc.), not by global ideologies. See Haynes, Jeffrey, ‘Islamic Militancy in East Africa’, Third World Quarterly, 26:8 (2005), pp. 13211339 ; Rosenau, William, ‘Al Qaida Recruitment Trends in Kenya and Tanzania’, Studies in Conflict & Terrorism, 28 (2005), pp. 110 ; Ousman, Abdelkérim, ‘The Potential of Islamist Terrorism in Sub-Saharan Africa’, International Journal of Politics, Culture and Society, 18:1 (2004), pp. 65105 ; Rüdiger Seesemann, ‘East African Muslims after 9/11’, Bayreuth African Studies Working Papers, no. 3 (2005); Becker, Felicitas, ‘Rural Islamism during the ‘War on Terror’: A Tanzanian Case Study’, African Affairs, 105:421 (2006), pp. 583603 .

52 As of March 2010, Kenya was party to 14 of the 16 UN legal instruments on terrorism, Tanzania to 10 of 16, and Uganda to 11 of 16, with leaders in all countries reportedly working toward the ratification of the remaining conventions. Each country had ratified or acceded to at least 7 of these conventions since September 2001.

53 Stiles and Thayne, ‘Compliance with International Law’.

54 See Uganda's 2002 report to the CTC found via the committee's website at: {http://www.un.org/sc/ctc/}.

55 The Monitor (28 March 2007).

56 New Vision (31 March 2010).

57 See, for example, the text of Museveni's speech at the Woodrow Wilson International Center for Scholars in Washington, DC, on 14 May 2002, available at: {http://www.wilsoncenter.org}.

58 This list is distinct from but issued along with the list of Designated Foreign Terrorist Organizations, which are identified through a more complex process involving the US Treasury Department.

59 Per the terms of the USA Patriot Act of 2001, US immigration authorities can block entrance to the country and/or deport people with known connections to groups on the Terrorist Exclusion List.

60 LRA leaders argued that they should be removed from the US list of terrorist groups so that their supporters could travel freely to peace negotiations. Daily Monitor (27 April 2007).

61 OECD data can be accessed through the International Development Statistics database at: {www.oecd.org}.

62 The vast majority of US aid to Uganda is economic assistance; military assistance was just US $2.3 million out of US $275 million total in 2005. Data is available from ‘The Greenbook’ of the US Agency for International Development at: {http://gbk.eads.usaidallnet.gov/index.html}.

63 Scores range from −10 (full autocracy) to +10 (full democracy).

64 On a scale from 1 (most democratic) to 7 (most authoritarian), countries with an average political rights/civil liberties score of 3.0 to 5.0 are considered partly free. Countries with a lower average score are free, and those with a higher average score are not free.

65 In 2005, Museveni pushed through a constitutional amendment that allowed him to run for a third term the following year.

66 Piombo raises doubts about the political will of African leaders to pass AML/CTF legislation when their basis for power often involves illicit financial activities. See Piombo, Jessica, ‘Terrorist Financing and Government Responses in East Africa’, in Giraldo, Jeanne K. and Trinkunas, Harold A. (eds), Terrorism Financing and State Responses: A Comparative Perspective (Stanford: Stanford University Press, 2007) .

67 Worried about the possibility of politically-motivated charges, the Bush administration pushed governments around the world to sign agreements that they would not bring charges against US nationals before the ICC. Several countries, including Kenya and Tanzania, lost some portion of economic and military assistance from the US for their refusal to sign. In 2007, however, as Pentagon officials warned the White House that this approach was undermining US cooperation with the same countries in the ‘War on Terror’, waivers were signed to restore funding. The Obama administration has stopped asking countries to sign bilateral immunity agreements, but has not yet signed onto the ICC.

68 Uganda received US $1.5 billion and Kenya got about US $943 million in 2006. These numbers are from OECD statistics available online at: {www.oecd.org}.

69 Each president basically serves two five-year terms and then steps down in favour of the next CCM candidate.

70 Even with irregularities in recent elections in Zanzibar, there is little doubt that the CCM won overall.

71 The law's nickname was a direct reference to then US Attorney General John Ashcroft.

72 For a more detailed discussion of these dynamics, see Whitaker, Beth Elise, ‘Reluctant Partners: Fighting Terrorism and Promoting Democracy in Kenya’, International Studies Perspectives, 9:3 (2008), pp. 254271 .

73 In an interesting twist, the US promoted and provided training for the development of a committee system in the Kenyan parliament. These committees now have the ability to stall counter-terrorism legislation.

74 In fact, the CTED's second-ever country visit was to Kenya in May 2005 to discuss these issues.

75 Whitaker, ‘Reluctant Partners’.

76 Interview with Honorable Paul Muite, Nairobi, Kenya (9 November 2005).

77 Krause, Volker and Otenyo, Eric E., ‘Terrorism and the Kenyan Public’, Studies in Conflict & Terrorism, 28 (2005), pp. 99112 .

78 A spate of brutal attacks by the local Mungiki sect in 2008 and the death of a Kenyan suicide bomber in Nairobi seemed to have little effect on the perception of the terrorist threat among policymakers.

79 The officially-announced results of the December 2007 elections in Kenya showed Kibaki narrowly winning re-election, while many ministers and members of parliament from his party were defeated. Significant irregularities in the vote-counting process led to charges of rigging and widespread violence during which more than 1,300 Kenyans were killed and approximately 300,000 were displaced. At the end of February 2008, through the mediation efforts of former UN Secretary General Kofi Annan, Kibaki and the main opposition candidate, Raila Odinga, reached a power-sharing agreement that was still holding (though at times just barely) by early 2010.

80 Multiparty elections were held in 1992 and 1997, but state-sponsored violence and other machinations prevented them from being free and fair.

81 Holmquist, Frank, ‘Kenya's Antipolitics’, Current History (May 2005), pp. 209215 ; Murunga, Godwin R. and Nasong'o, Shadrack W., ‘Bent on Self-Destruction: The Kibaki Regime in Kenya’, Journal of Contemporary African Studies, 24:1 (2006), pp. 128 .

82 Wolf, Thomas P., ‘Contemporary Politics’, in Hoorweg, Jan, Foeken, Dick and Obudho, R. A. (eds), Kenya Coast Handbook: Culture, resources and development in the East African littoral (Leiden: LIT African Studies Centre, 2000) .

83 Indeed, in the run-up to the 2007 election, the top two presidential candidates both campaigned in predominantly-Muslim areas along the coast wearing traditional Muslim clothing.

84 There has been some public support for proposed AML legislation, though little among members of parliament. As Piombo argues, stricter financial regulations may affect the illicit activities of many Kenyan politicians. See Piombo, ‘Terrorist Financing and Government Responses in East Africa’.

85 Leheny, David, Think Global, Fear Local: Sex, Violence, and Anxiety in Contemporary Japan (Ithaca: Cornell University Press, 2006), p. 187 .

86 For further discussion on the tension between democracy promotion and counter-terrorism, both of which were explicit goals of US foreign policy under the Bush administration, see Whitaker, ‘Exporting the Patriot Act?’ and Whitaker, ‘Reluctant Partners’.

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