Daily Nation , Kenya
March 17 2006
Mercenary claim is a wild-goose chase
Story by PETER MWAURA /FAIR PLAY
Publication Date: 03/18/2006
Being a mercenary is not a crime disclosed in any domestic Kenyan
law. Therefore, it is not clear how the police can legally investigate,
leave alone arrest, a person simply because he has been called a
“mercenary”.
But I suppose the police can always find something in the Penal Code
to nail a potential mercenary, such as section 44, which prohibits
any warlike undertaking.
Kenya has also signed or ratified two of the three international
legal instruments that define who a mercenary is. However, none of
these instruments would come in handy for the police in the current
controversy over the two Armenians whom former Cabinet minister Raila
Odinga has claimed are mercenaries.
Essentially, the police have been set up to investigate what does no
exist in our law and is very difficult to prove in international law.
“Look me in the face,” one of the Armenian brothers is reported to
have told a press conference on Monday this wee. “Do I look like a
mercenary?” A rhetorical question, perhaps, but one that underlines
that the police are on a possible wild-goose chase.
Foreign soldiers of fortune
In fact, the claim about two weeks ago that there were Russian or
Armenian mercenaries in the country was as diversionary as it was
spooky.
Historically, mercenaries have been foreign soldiers of fortune,
and they continue to exist only in war situations.
If any foreigner was involved in the police raid on Standard and
KTN offices, they could not possibly be described as “mercenaries”
unless one was using the term as a figure of speech. By their very
definition, mercenaries operate only in war situations.
If, as he has claimed, the foreigners’ second assignment was to
eliminate Mr Odinga and his opposition colleagues, the Russians or
Armenians would still not legally qualify as mercenaries. One would,
perhaps, call them criminals or hit men, but no more.
The Protocol Additional to the Geneva Conventions, relating to the
Protection of Victims of International Armed Conflicts, defines a
mercenary as any person who “is specially recruited locally or abroad
… to fight in an armed conflict.” A mercenary “does, in fact,
take a direct part in the hostilities.”
Kenya ratified this convention on 23 February 1999. The Convention for
the Elimination of Mercenarism in Africa, adopted by the Organisation
of African Unity (now African Union), defines a mercenary as a person
who engages in acts aimed at “opposing by armed violence a process
of self-determination or the territorial integrity of another State.”
It is a crime “against peace and security in Africa and shall be
punished as such.” Kenya signed this convention on 17 December 2003
but forgot to ratify it.
The UN International Convention against the Recruitment, Use,
Financing and Training of Mercenaries defines a mercenary as any person
who is “specially recruited locally or abroad to fight in an armed
conflict”, or to participate in “a concerted act of violence” aimed at
“overthrowing a Government or otherwise undermining the constitutional
order of a State”, or “undermining the territorial integrity of a
State”. Kenya has not signed or ratified this convention.
The three instruments constitute the international law on who is
a mercenary. All the three make it clear that a person can only be
accused of being a mercenary if he participates in an armed conflict.
Mercenaries do not exist in any other context. And, I suggest, if you
really want to see a mercenary do not visit the house on Glory Road
in up market Runda, Nairobi. Go and see the movie “Dogs of War”, or
“The Wild Geese”. Or read the book with the same title by Frederick
Forsyth, or by Daniel Carney.
Alternatively, follow the adventures of the likes of Mike Hoare who
was hired by the Belgians during the Congo crisis in the 1960s; or
Bob Denard, the French man who participated in numerous conflicts in
Africa including four coups in the Comoros and the 1978 failed coup
in the Seychelles.
Overthrow the government
Or Simon Mann, the co-founder of Executive Outcomes, the mercenary
outfit involved in conflicts in Angola and Sierra Leone and in the
2004 attempt to overthrow the government of oil-rich Equatorial Guinea,
and is serving a seven-year term at Chikurubi maximum security prison
in Harare, Zimbabwe.
Mercenaries are fighters, not newspaper burners; they are hardened
soldiers and are usually very well trained, with superior skills.
They sell their services to the highest bidder and have no time for
trading political accusations. They take no prisoners.