The AU, its Jubilee and the ICC- An Anniversary to Forget?

Over the past week, the African Union held its 50th Anniversary celebrations. One of the wonderful features of the AU website is the posting of the speeches made by the founding OAU leaders at the opening of the Organisation of African Unity (predecessor to the African Union) in 1963. Here are a few quotes that I found very relevant:

“Let us not forget that we in Africa are part of the world. We have our international obligations as well. Whatever we do, we cannot isolate ourselves from the rest of the world.”- Alhaji Tafawa Balewa, Prime Minister of the Federation of Nigeria

“It is not enough that the union of our weaknesses [in the third world] should appear to be a force. It is not important to frighten people. The important thing is that we transform each of our weaknesses into strength, that we make of every African a man who eats and educates himself to his fullest…” Leopold Sedar Senghor, President of Senegal

As these speeches show, the past will always haunt us. And the current shuttle diplomacy on behalf of Kenyatta and Ruto (with Sang as the incidental beneficiary!) is full of actions that are ironic when one looks at the vision of Africa that the OAU founders had. These actions include: (1) Outlandish statements issued by our representatives in NY about Africa being targeted by the ICC Prosecutor- now extended to perpetuating the racist fear that an African country is perpetually on the tip of violence which can only be prevented by shielding its leaders (Ruto and Kenyatta) from legal process (2) A ruckus raised to create fear of a mass African exit from the ICC Treaty and (3) line the ducks in a row at the AU for an anti-colonialist protest- as though other international institutions who disagree with the AU position against the ICC are anti-African.

The particular duck I refer to is a throw-away line from Ethiopian PM Desalegn in his speech before the AU in which he accused the ICC of ‘hunting Africans’. Desalegn’s words were designed to manipulate our collective memory of the slave trade and the worst atrocities of colonialism. Previously it was ‘sovereignty and peace first’ that anti-Hague lobbyists had hoped would win hearts and minds by tapping into our African (perhaps even Pan-African) pride in order to permit the leaders of this continent their long-cherished impunity.

Of course, as George Kegoro of ICJ-Kenya recently suggested in an interview, the exaggerated language from the AU may not mean much more than posturing in order to force either the UN Security Council  or the ICC Assembly of State Parties to the negotiating table.

The ICC has already commented that the Resolution that the Assembly passed (condemning the court) has no weight in law. But one feels frustrated with the superficiality of our African leaders- is it that 34 heads of state blindly signed away their sovereignty to ratify the Rome Statute? The proceedings and substance of the Rome Statute were never secret. They were discussed openly in Ad Hoc committees, Preparatory meetings and the final Drafting conference in Rome. No one got ambushed by provisions regarding absence of head of state immunity nor by the requirement that giving priority to national prosecution would be possible only if the ICC were satisfied that genuine proceedings were actually happening in the state in question. As many already note, it was Africans who ‘self-referred’ the first situations to the ICC (DRC and Uganda). Equally no one was under any illusion that the world of international law and politics has traditionally been skewed against African and other post-colonial states. That was part of the reasoning behind the OAU, the AU and even the ICC; here were institutions that Africa had a stake in; paths to international justice in which the African footprint would be clearly visible; a joint effort towards just development whose growth and reach would benefit the continent.

If the ICC is ‘hunting Africans’ it’s only because 34 leaders on our continent gave it a ‘big game license’. Only Botswana’s President Ian Khama seems to have a clue as to what it was his country signed up to at the Rome Conference- he has been fairly consistent in stating his commitment to adhere to the ICC’s decisions, his country’s cooperation obligations and in urging his fellow heads of state to do the same. His reward is near-pariah status and enduring taunting by Julius Malema and Robert Mugabe. Never mind: there’s always a price to pay for moral courage.

The fact is that few people- least of all ICC supporters- can be happy about the court having to intervene so often on this continent. But this was never about liking- how can one like the fact that nearly 2 decades after the Rwandan Genocide and barely 10 years after the Congolese war, massacre, rape, and ethnic cleansing remain prevalent and unpunished locally? The reaction over 3 years ago when the ICC’s Prosecutor opened investigations into Kenya was not pride or celebration but relief. Relief that this was series of crimes that would not get swept under the spacious State House carpet like previous atrocities (Wagalla, Malka Mari 1992 clashes etc.)

Almost anyone with the will to do it can commit a single crime- but it takes leadership to organise others to commit mass crimes. Someone had to step up to the plate in confronting the leaders of impunity in Kenya’s PEV violence- with less than 4 convictions of ground level perpetrators, that someone was not the Kenya Government. Indeed, one thing you can take away from the recently released TJRC report is its continual criticism of the Government’s response to mass atrocity- in almost every case, survivors and witnesses were now old, ill, dead or dying and the GoK still barely moved a muscle (prior to the TJRC) to genuinely investigate and prosecute those involved in serious crimes against innocent Kenyans. This reluctance to follow through on justice is an abscess in the soul of the nation. The fate of Lari, Turbi and Mt. Elgon victims looks increasingly like the fate awaiting PEV survivors.

And so, even if somehow the accused can bend international law to do their bidding and have cases (illegally) terminated or referred back to Kenya, how does this create confidence that they will not also politically interfere with the cases locally? Could anyone say with confidence that having escaped an international court, the President and his Deputy would carry fewer ‘extra’ lives into our halls of justice than the cat-like Kamlesh Pattni? Won’t the abscess simply worsen?

I willingly accept that the ICC and its Prosecutor could have better handled the problems in the Kenya situation. Indeed this article details ways in which the court’s engagement with critics in Africa has in general been defensive, reactionary and inadequate. Equally the negligence and deficiencies highlighted within the Prosecutor’s office must be addressed (and are being addressed, according to the Prosecutor herself). This should be done with African involvement without jeopardising the current work of the court. If justice is imperfect then work to improve it; you can’t reform and strengthen a judicial institution by threatening to kill it politically.

The only message I could humbly send to the AU in relation to their recent resolution castigating the ICC is this: some of your concerns are legitimate but your motives are suspicious; be careful not to spit in the faces of victims of atrocity- they will not forget it.

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One thought on “The AU, its Jubilee and the ICC- An Anniversary to Forget?

  1. […] some extent I have sympathy with Judge Eboe-Osuji’s views: as I mentioned previously, the ICC was arguably too defensive in its initial appraisal of the complaints by African states: […]

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Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

AfricLaw

Advancing the rule and role of law in Africa

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