On December 3, the investigating judge in the case of Kem Sokha, the Cambodian opposition leader arrested on treason charges in September 2017, said that he thinks he now has “adequate evidence” to convict the detained politician of “conspiracy with a foreign power,” under Article 443 of the Criminal Code. While this may seem unlikely based on what we know publicly so far, it has nonetheless put into focus the issue of Kem Sokha’s trial and how it may evolve within the wider context of Cambodian domestic and foreign affairs.
Based on what we know publicly so far, it does not seem likely that the investigating judge has as much evidence as his claim may seem to suggest. It has taken him almost two years to lead the investigation – in which time Kem Sokha spent a year in jail, then another year under house arrest. But the closing of his inquiries on November 14 happened to come as the European Union is now nearing its final decision on Cambodia’s fate in its preferential Everything But Arms (EBA) trade scheme. If Cambodia loses its place, its export-driven economy, largely reliant on cheap exports to Europe, will falter. And since the EU is demanding Kem Sokha’s release, Prime Minister Hun Sen can now play his bargaining chip.
Two months after Kem Sokha was arrested his Cambodia National Rescue Party (CNRP) was forcibly dissolved by the Supreme Court, sending most of its elected politicians into exile, joining the party’s other leader, Sam Rainsy, who fled Cambodia back in 2015. Sam Rainsy and the others tried to mount a heroic return in early November but were prevented from entering any country that borders Cambodia or from boarding flights to Phnom Penh. The terms of Kem Sokha’s house arrest were loosened on November 10. (See: What’s Next for Cambodia’s Opposition Politics?)
So far, however, the only evidence the ruling party or courts (very much the same thing) have put forward is not much to write home about. It revolves around a speech Kem Sokha gave in 2013 in Australia where he stated that the “the USA, which has assisted me, has asked me to take the model from Yugoslavia, Serbia, where they were able to change the dictator Milosevic,” and that he had experts “hired by the Americans in order to advise me on the strategy to change the leaders.” Clearly, he was referring to money which U.S. Congress-funded organizations, like the National Democratic Institute (NDI), have used to pay for advisers to both the opposition CNRP and the ruling Cambodian People’s Party (CPP) on political matters.
The same month as Kem Sokha’s arrest, the government’s mouthpiece, Fresh News, put around stories that the NDI was colluding with the political opposition and operating illegally in Cambodia. The correct documents had been sent a year earlier, in turns outs, but the Ministry of Foreign Affairs hadn’t processed them, a violation of the government’s own strict law on NGOs. A week later, on August 23, the government ordered the NDI to close its office in Cambodia and ordered its international staff out of the country within seven days.
“The allegations against NDI were ironic because the Institute, which had been working in the country since 1992, engaged all the major parties, including the ruling CPP, in its programs. In fact, the morning that NDI received the letter ordering the closure of its office and expelling its international staff from the country, the Institute had met with a representative of the ruling party to plan its next training session with the CPP,” Kenneth Wollack, the NDI’s president, said in a prepared statement to a House Subcommittee on Asia and the Pacific hearing on Cambodia on December 12, 2017.
What other incriminating evidence does the investigating judge possess? Mostly conjecture and out-of-context comments, one would suspect. Not one foreigner alleged to have been part of the conspiracy was questioned. And it remains unclear exactly which foreigners Kem Sokha is supposed to have plotted with – the United States is the main allegation, but Taiwan and European states have been mentioned, too.
One also suspects that the words of Sam Rainsy will be used against Kem Sokha. And they do appear on the insurrectionist side of the line, such as Rainsy’s repeated calls for the military not to listen to the government and for the people to rise up and oust Prime Minister Hun Sen. But those are not Kem Sokha’s words – and unless he was in regular contact with Sam Rainsy during his year in prison and year under house arrest, which the government made sure he wasn’t, then it will be difficult for prosecutors to put those words in his mouth.
So far, we do not know when the court date will be. By law, the defendant’s lawyers must be informed of the date 15 days before it takes place. But it will most likely come at an ideal time for the ruling party, which pulls the court’s strings. Indeed, it comes to something when the government’s own votaries do not deny that the ruling party doesn’t engineer the justice system. Sok Touch, president of the Royal Academy of Cambodia, has said that Kem Sokha’s release for the EBA’s maintenance “would be a kind of swap.”
The most probable outcome is, indeed, that Kem Sokha will stand trial and be convicted, but then will be swiftly handed a royal pardon. This would give Hun Sen the satisfaction of seeing his opponent branded a traitor by the courts, and then allow him to appear magnanimous and compassionate. One imagines this will come with the threat to Kem Sokha that he shouldn’t play a too passionate role in politics in the future. It is even possible that the government will move to prosecute Kem Sokha but hold out the option of a pardon in a quid-pro-quo with the European Union: if the EU keeps Cambodia in the EBA scheme, it will free him; if EBA status is withdrawn, he will remain jailed.
All this comes as Josep Borrell took up the post of the EU’s de-facto foreign minister on December 1, replacing Federica Mogherini, who had taken a firm line with Cambodia. How he will react is unknown: he is a relatively unknown entity in non-European foreign affairs. But if Brussels chooses to base its entire strategy simply on Kem Sokha’s release, it won’t have achieved much to be proud of. Neither Kem Sokha nor the CNRP are synonymous with democracy; the CNRP was merely the largest and most popular opposition party of the decade. And trying to match Hun Sen’s political (well-played) political games won’t herald any major democratic progress in Cambodia.