AU, Kenya and the International Criminal Court: Beyond Impunity

This week many of the current political leaders of Africa will meet in Addis Ababa to discuss whether African states should withdraw en masse from the International Criminal Court because of the indictment of Kenyan President Uhuru Kenyatta and Vice President William Ruto. This meeting will be an extra-ordinary session of the African Union (AU) organized to deliberate on International Jurisdiction, Justice and the International Criminal Court (ICC). At issue is whether the ICC has discriminated against Africans and whether the case of the killings of over 1,100 persons in 2008 and the displacement of over half a million should be a matter of international criminal law.

To ensure that the original reasons for the case before the ICC are not forgotten, it is urgent that the Assembly of the African Union remembers its mandate and foundational doctrine of non-indifference embedded in Article 4(h) of the Constitutive Act of the AU, mandating the continental body to ‘intervene … in respect of grave circumstances, namely: war crimes, genocide, and crimes against humanity.’ As such, I am arguing that the special session of the AU has far more serious priorities. If Uhuru Kenyatta and William Ruto are innocent, then they can have their day in court and their exoneration before an international criminal court can only convey greater political legitimacy to them.

As already stated, one aim of the African Union when it was formed was to ensure that there was no impunity for those who committed crimes against humanity in Africa. If indeed, it is the position of the African peoples that the ICC has discriminated against Africans, then the most urgent matter before this upcoming Assembly is for Africans to build regional and national mechanisms to bring those who commit crimes against humanity to justice. Unless the Assembly can demonstrably guarantee the African peoples that the AU has genuine political will and capacity to thoroughly enforce article 4(h) of the Constitutive Act, to stem the criminal activities of desperate and selfish political leaders in Africa, any discussion about mass withdrawal from the ICC could be tantamount to self-delegitimization.

In the past month there has been considerable sympathy for the peoples of Kenya in the aftermath of the bombings at the Westgate Mall in Nairobi. While decent human beings everywhere continue to mourn with Kenyans, it should be remembered that leaders such as Yoweri Museveni of Uganda, Paul Kagame of Rwanda and President Isaias Afewerki of Eritrea (the three pressing the case for this special session) do not have the political legitimacy to demand that the African Union withdraw en masse from the ICC.

THE ROAD TO ICC AND THE CASE BEFORE THE COURT

The referral of the 2007-2008 Kenyan post-election violence case to the ICC came, not from imperialists, but from the Panel of Eminent African Personalities established by the African Union — with Kofi Annan as chair and Benjamin Mkapa, former president of Tanzania and Graca Machel, former South African first lady as members.

The ICC charges alleged that Mr. Kenyatta and Mr. Ruto helped to fuel the violence that followed the 2007 elections. Both men have declared that they are innocent.

In the heat of this post-election struggle, imperial states such as the United States and Britain wanted the matter to be put aside so that international business could continue to thrive in Kenya. Condoleezza Rice, then the Secretary of State for the United States flew to Kenya to ensure that western interests were given priority. The US Assistant Secretary of State for Africa, Dr. Jendayi Frazer, represented Kenya as a base for the global war against terror and did not countenance any discussion about whether the election results represented the will of the people.

It was the Panel of Eminent African Personalities that was formally mandated by the AU on 29 January, 2008 to mediate between President Kibaki’s Party of National Unity (PNU) and Mr. Odinga’s Orange Democratic Movement (ODM); the panel was charged with finding a peaceful solution to the crisis. One important outcome of the Panel’s work was the referral of the cases of those behind the violence to the ICC. There had been a demand for the local courts in Kenya to investigate the authors of the crimes but six years after this violence only the homicide of 19 persons has been brought before the Kenyan judiciary.

SELF-TRIANGULATION AND SELF-DELEGITIMIZATION?

In May 2013, Africa celebrated fifty years of unity. While the plan of the Assembly of the AU was to prioritize the next fifty years (Africa 2063) during the deliberations, the agenda of the meeting was hijacked by the energetic efforts of the political leadership of Kenya and their allies to discuss the matter of the cases of Uhuru Kenyatta and William Ruto before the ICC. Yoweri Museveni of Uganda had been as aggressive as the Kenyan leadership in placing the matter of the ICC before the Assembly of the African Union. At the end of the 25 May summit, AU chairman, Ethiopia’s Prime Minister Hailemariam Desalegn charged that 99 per cent of those indicted by the ICC are from Africa, which left the body in no doubt that the international court’s prosecutors were intentionally targeting Africans. Hailemariam Desalegn stated that: ‘The African leaders have to come to a consensus that the process the ICC is conducting in Africa has a flaw. The intention was to avoid any kind of impunity, but now the process has degenerated into some kind of race hunting. We object to that.’

The debate on the ICC intensified within the corridors of power in Africa with those opposed to the ICC trials couching their opposition in anti-imperial discourse. The AU’s Final Decision and the Summit proceedings reflected the line of the conservative media in Kenya. As noted by one analyst, the Kenyan conservative media view adopted in AU’s Final Decision and Summit proceedings holds that: ‘The ICC is a tool of Western powers that targets and discriminates against the continent; undermines African efforts to solve its problems, especially finding peace and reconciliation in post-conflict situations; and is shot through with double-standards, focusing its firepower only on African countries such as Sudan, Kenya and Libya but not on Iraq or the Gaza.’

Both Yoweri Museveni and Hailemariam Desalegn carried the same arguments to the General Assembly of the United Nations in September when they lobbied for the UN Security Council to call on the ICC to drop the case.

It is clear that in the present diplomatic overtures to drop the case before the ICC – against Kenyatta and Ruto – there are many who have forgotten the origins and enormity of the case and seemingly ignored the fact that its referral to the ICC was made by a panel of Africans mandated by the AU and acting in tandem with the non-indifference doctrine of AU’s founding document. Against this backdrop, the AU could be projecting a posture of confusion, self-triangulation and self-delegitimization if it allows its platform to be used for mass withdrawal from the Court by some African leaders, without first investing in workable structures that can impartially and decisively bring to justice powerful perpetrators of crimes against humanity on the continent.

WHAT ABOUT WESTGATE?

It was in the middle of the intense diplomatic activities by Yoweri Museveni who was campaigning for Kenya to boycott the ICC when the Westgate bombings took place on 21 September, 2013. International sympathy for the Kenyan people and leaders heightened until it was revealed by the country’s media that the Kenyan intelligence and military had forewarnings of the bombing. This information created even more disquiet as there were now questions from far and wide about the nature of the bombings.

While mourning, concerned Kenyan citizens are now posing important questions: why did it take so long for the Kenyan military and security forces to respond to the attack? Why was it that select persons were warned to stay away from the mall on that particular day?

Koigi Wamwere a long time activist from the peace and justice wing of the Kenyan society stated in an op ed that ‘Someone Should Take Political Responsibility For Westgate.’ Wamwere wrote: ‘Amazingly, instead of accepting blame and responsibility for this tragedy, President Uhuru, Deputy President Ruto and their government are positioning themselves to reap political capital and professional gain from their own failure.’

REAPING POLITICAL CAPITAL FROM THE WESTGATE BOMBING

If the current leaders of Kenya are not seeking to reap political capital from this tragedy, then they should join with the rest of Africa in calling for the cancellation of the AU Special Session to discuss the case before the ICC. Presently, the situation in Kenya is too delicate for the matters of killings, bombings and extra judicial violence to be brushed aside. Last week, a Muslim cleric Ibrahim ‘Rogo’ Omar and three other people were shot dead in Mombasa as they drove home on the night of 3 October 2013 after preaching. The next day, after prayers there were eruptions in Mombasa as the passions over the killings spilled out into the streets. Four people were killed in Mombasa during clashes between police and those angered at the killing of a Muslim cleric. Seven people have also been wounded during the disturbances, while a church was set alight.

One other Muslim cleric rightly called for an end to the extrajudicial killings on the streets of Kenya. Abubaker Shariff Ahmed, known as Makaburi, said the police were behind the killings of Mr. Omar and the others. ‘They should tell us the truth about Westgate, not kill innocent Muslims in Mombasa,’ he told reporters at the scene of the wrecked car.

It was in the midst of this instability in Kenya where both Richard Dowden of the Royal Africa Society of the United Kingdom and Jendayi Frazer (former US Assistant Secretary of State for Africa) waded into the debate about Kenya and the ICC.

Dowden in his article, ‘Kenya after Westgate: more trouble ahead,’ pointed out that there was more trouble ahead for Kenya and that the west should rally behind the political leaders of Kenya. Without a whisper of the machinations of the British government in Somalia and the efforts to corner the contracts for the exploration of oil, Dowden warned that, there would be ‘more attacks like Westgate in Africa, spreading to countries on the southern border of the Sahara.’ He concluded by saying that the attack on the Westgate Mall was the beginning of the end of the International Criminal Court and the case against Uhuru Kenyatta. ‘Western governments will need a stable strong government in Kenya. There is no way the West is going to allow President Kenyatta, who has shown good leadership qualities during the crisis (and his vice-president William Ruto), to spend months at a trial in The Hague and then go to jail,’ says Dowden.

Jendayi Frazer who had worked closely with Condoleezza Rice to ensure that Mwai Kibaki remained President in 2008 has also written that the west now needs Kenya as a partner in the fight against terror. Writing in the pro-government newspaper in Kenya, the ‘Daily Nation’, Jendayi Frazer argued that ‘Attack will draw West, Kenya closer.’ The key points of her argument were that:

‘It is now time for the West to fully embrace Kenya’s new democratically elected government and respect its institutions. …’

‘Put more plainly, the ICC cases against President Kenyatta and Deputy President Ruto have become a distraction reflected clearly by the need to suspend Mr Ruto’s trial for a week to allow his return home to attend to the Westgate crisis.’

THE TURN OF THE AFRICAN UNION

Jendayi Frazer represented the Conservative Republican Administration as a diplomat. It is here questionable that the very conservative wing of the US political establishment is now coming to the defense of Kenyatta and Ruto. The United States is not a signatory to the Rome statutes yet, the conservatives are calling for Africans to forget the crimes committed in January 2008 in order for Kenyatta and Ruto to focus on the Global War against Terror.

The defense of Kenyatta and Ruto by Frazer and Dowden has complicated the two Kenyan leaders’ strategy of presenting themselves as anti-imperialists. When the African Union meets this week to discuss the case for mass withdrawal, African leaders should bear in mind that it was the activism of the Caribbean and African states that brought the ICC into fruition. It will be important for the AU to join with the Kenyans to support the Commission of Inquiry into the Westgate bombings.

I share the opinion of Pan Africanists who believe that if Kenyatta and Ruto are innocent they should not be afraid to get their day in court.

The African Union should be working hard to ensure that there is no impunity in Africa. Other organs such as the African Parliament and the Economic, Social and Cultural Council of the African Union (ECOSOCC) need to engage this discussion about impunity in Africa.

* Horace G .Campbell, a veteran Pan Africanist is a Visiting Professor in the School of International Relations, Tsinghua University, Beijing. He is the author of ‘Global NATO and the Catastrophic Failure in Libya: Lessons for Africa in the Forging of African Unity,’ Monthly Review Press, New York 2013

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