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KATIBA: China: A unilateral lawmaker

Kenya's President Uhuru Kenyatta (L) and Chinese President Xi Jinping (R) prepare to inspect Chinese honour guards during a welcoming ceremony outside the Great Hall of the People in Beijing /file
Kenya's President Uhuru Kenyatta (L) and Chinese President Xi Jinping (R) prepare to inspect Chinese honour guards during a welcoming ceremony outside the Great Hall of the People in Beijing /file

African states are (or pretend to be) mesmerised by their economic engagement with China (or rather China’s initiative).

Uhuru Kenyatta and his financial chief seem very fond of friendship with China and its “investment” in Kenya. Several of our universities are now teaching the Chinese language. A large number of Chinese are settling in Kenya (and other parts of Africa) with dubious reasons and documentation.

Uhuru thinks that China intentions are beyond doubt, even if it is clear Treasury CS Henry Rotich seems rather ignorant of the precise state of Chinese and other funds, in this and other projects—and should have been sacked a long time ago.

For some time there has been suspicion, particularly in Mombasa, that China is likely to dominate or take over the shipping trade at the coast, to harm of its inhabitants.

This view was encouraged by my Star article mid-last year when I described how China had taken over a harbour in Sri Lanka which it had built for the government, relying on a term that if the government delayed in payments, China would occupy the harbour for 99 years. It has now begun occupying significant areas around the harbour, south of India—not China’s closest friend. China seemed to have won the heart of the Sri Lanka’s president (now expelled). Should we be careful of Uhuru’s fondness for Xi Jinping?

Let us first look at what the Daily Nation calls SGR pact with China which exposes Kenya’s assets and sovereignty to it. China demanded, and it would seem Kenya, agreed that the contract would be governed by Chinese law and all disputes would be arbitrated in Beijing. As opposed to a Chinese company, Kenya’s sovereign rights are stripped away by the contract: Kenya has forfeited its rights of immunity, arbitration, or litigation. What is more, Kenya can only disclose these terms with the permission of China. This is ironic as it is China that is in charge of the project, including experts and key workers. The loan agreement is also governed by Chinese law. Rotich must have known that the transactions were one sided, in favour of China—or perhaps he did not, since they are so unequal.

ROUTINE CHINESE STYLE

I have considerable experience of the Chinese approach as regards politics and economics. After a long period of Chinese withdrawal from the world and a rather unproductive economy (under Mao), China changed its course, under Deng Xiao Ping, with the focus on the market economy.

This was also the time when China was claiming back Hong Kong from Britain, after the 99 years for which Britain had leased (or more accurately, captured) part of it from China. I joined Hong Kong University about the time the Hong Kong constitution or “Basic Law” - which reflected the agreement between Deng and Margaret Thatcher – was being finalised.

WORKING WITH CHINESE

The Mainland Chinese officers rather liked me, after my first public lecture, as the topic was British colonies—which I strongly criticised. Shortly after that I was nominated by the UNDP to work with Chinese civil servants on modern approaches to administrative law (China wishing to modernise its large old fashioned administration)—which task I fulfilled in a few trips to Beijing. My impression was that China was doing this not so much to learn new tricks, as to be seen by the West as leaning to the West (from which it expected money and markets).

Somewhat before this (when still teaching at Warwick University in Britain), I was invited by Beijing University to one of the first conferences with foreign universities. About a week before, there was the terrible violence at Tianamen Square against Beijing University students who wanted some freedom in their studies—something it was expected would be tolerated by the new leader Deng Xiaoping.

The conference was cancelled but it was convened a few months later—many of us were reluctant to attend in view of treatment given to students, but in the end we thought our engagement with students might be worthwhile. By this time I was teaching at Hong Kong and had special reasons to go to Beijing. The support given to Beijing students by HK University—and Hong Kong people in general-- was deeply resented in China. It led to difficult contacts with their academics, especially those who were considered to be less than sympathetic to the Communist regime.

One of the main courses I taught in Hong Kong was “The Basic Law of Hong Kong. It became my pet subject—no surprise there. My analysis of the Basic Law became the main text for considerable time (for judges, practitioners and students).

At this stage the Chinese government approached me for a project—to determine which parts of the law in Hong Kong would be abolished immediately in 1997 while the rest would continue 2047. The understanding was that this category would be small. Britain and China were to agree before 1997 which such laws would be. But as I started my work with Chinese lawyers, it became clear to me that China’s wanted abolition of laws it did not like, not necessarily only those consistent with Sino-British understanding. The Chinese authorities got upset with me as I explained my view—they had assumed that I would support them, given my dislike of colonialism. My orientation, however, was to examine if a law fell within the category the two governments had agreed on. In the end I got my way (especially some Hong Kong Chinese lawyers supported me).

BRITISH-CHINESE DISCUSSION

A little earlier I had been asked by the British to facilitate resumption of discussions between them and China (as at that time both governments trusted my impartiality as well acceptance). The deadlock was not really in either parties’ interest—so my task was easy. But my relationship with China was now without the earlier cordiality.

However, my involvement with China was not at an end. The government of Dalai Lama, exiled in India, had for long argued for the return of Tibet. As China opened to the wide world and wanted the support of the West, it seemed that China would be willing to negotiate with the Dalai Lama. I had published a paper some time previously on Beijing’s relationship with different parts of China (some with ethnic differences) which gave the impression of some autonomy. I was approached by Dalai Lama’s government in exile, to be their adviser in negotiations with China—a great honour—by which time he had reconciled himself to not independence but a degree of autonomy. I spent some days with officials of his government discussing our strategies.

China insisted that the talks be in Beijing, not a neutral place as the Dalai Lama’s government wanted—and, what is more, China made clear that I would not be allowed to join his team. I was reduced to telephone conversations with the Dalai Lama’s team during breaks from negotiations. But in fact there were no negotiations, because the Chinese negotiators had been instructed to avoid any discussions—merely show Tibetans the wonders of China. After some years of supposed negotiations, the Dalai Lama gave up. And the West did not care any longer—there were the beginnings of trade with Beijing. But only a few years previously the EU had invited me to address one of their committee on how the Dalai Lama could be assisted.

My Chinese journey seems to have ended where it began—Hong Kong. Last June my old university invited me for a lecture—on justice. Hong Kong is entitled to its own political, social and economic systems until 2047—free from the Mainland pressures or worse still orders. China has broken the law requiring the introduction of fully democratic elections (due some years ago). The business community has turned its attention to China, away from civil society and local affairs. Universities are under pressure. A lot of academics and students (denied their freedom) were planning resistance to Chinese pressures—an “Occupy” movement and the “umbrella revolution” was the result. Dialogue with Beijng is no longer possible as it used to be with the local regime now entirely dependent on Beijng. There is still a degree of human rights, but not the challenge to the administration as before. Leaders of Occupy have been severely punished and some others are threatened with tougher punishments. China has put enormous pressure on local administration to change the sacred Basic Law, especially Article 23 on security which could become an instrument of oppression. Britain which is a party to the agreement with China on the rights of Hong Kong (Basic Law) for 50 years of the Joint Declaration and thus a guardian of Hong Kong has done little to stop Chinese “invasion” of Hong Kong—instead has increased its trade with the Mainland.

Meanwhile China is set on dominating a large number of states, in my parts of the world, most successfully in Africa. Let us at least query its motive.

The writer is a director of Katiba Institute