A different ‘Jubilee’: Fresh chance at 50 for AU on justice?

On May 19, African countries kicked off a special summit to celebrate 50 years of the union, first under the Organization of African Unity and, since 2000, under the African Union. This is an opportune time for the AU to set the record straight on its support for accountability, especially the atrocities during Kenya’s 2007-08 election-related violence.

Indeed, some Kenyan government sources indicate that their government may try to use the summit to instigate a mass withdrawal of African states from the International Criminal Court (ICC). This would follow an initiative earlier this month at the UN Security Council where the Kenyan government asked the council to terminate the ICC’s Kenya cases, ignoring that the council has no authority to do so under the court’s statute. Kenya’s newly inaugurated president, Uhuru Kenyatta, and his deputy, William Ruto, are due to face trial at the ICC in two separate cases.

The African Union and its member states should refuse to be led down this path, and for good reason. The African Union had an important role in bringing the ICC to Kenya in the first place.

AU-appointed mediators led by former UN Secretary-General Kofi Annan helped negotiate an agreement to end the country’s 2007-2008 violence, which claimed at least 1,300 lives and forced as many as 650,000 from their homes. The agreement put in place a commission of inquiry to investigate crimes committed during the violence.

It was the commission, headed by Justice Philip Waki of Kenya, which offered the Kenyan government an ultimatum — either bring justice through national trials or an envelope containing the names of those suspected to be responsible would be handed to the ICC prosecutor. Only after Kenya failed to put in place mechanisms to try the cases locally did the ICC step in as a court of last resort. Even then the ICC prosecutor made an independent decision, approved by the court’s judges, to open investigations.

From the outset, Kenya promised to cooperate with the court, as it is obligated to do as an ICC member, and Uhuru and Ruto have voluntarily attended hearings at The Hague. But Kenya’s cooperation has been patchy according to the ICC prosecutor and, from the look of things, it could be headed for a more challenging period.

This is not the first time Kenya has courted AU support to scupper the ICC. In 2011 the Kenyan government lobbied the AU to support a UN Security Council deferral of the court’s investigations. Never mind that the effort was disavowed by half of the then-coalition government in Kenya, and that the ICC cases presented no threat to international peace and security -- as would have been required. The AU backed Kenya on paper, but a deferral was never fully supported by African states, including South Africa, then sitting on the Security Council. Consultations were convened but the Security Council let the request roll off into the long grass.

This time Kenyan leaders appear to be trying to appeal to African solidarity against outside interests. During the presidential campaign, Kenyatta, Ruto, and their ‘Jubilee’ alliance painted the ICC as a tool of western imperialism.

Without skipping a beat, President Yoweri Museveni of Uganda picked up this theme at Kenyatta’s inauguration on April 9. He praised Kenyan voters for resisting the court’s ‘blackmail’ and charged that the ICC is being used ‘to install leaders of their choice in Africa and eliminate the ones they do not like.’ Museveni, of course, famously invited the ICC prosecutor to Uganda to investigate the rebel Lord’s Resistance Army (LRA). Neither he nor any Ugandan government forces have faced charges.

Even though the AU played an important role in restoring normalcy in Kenya in 2008 and investigating the violence, it has not urged Kenya to cooperate with the ICC. In fact, the AU failed to back Annan when he came under attack during the recent presidential campaigns for his statements supporting the ICC and calling for accountability. By failing to be categorical about the situation in Kenya, the AU risks signalling it is not committed to accountability.

To be sure, the broader relationship between the African Union and the ICC has not been an easy one. The African Union has blocked the ICC from setting up an office in Addis Ababa and, more damaging, has called on African ICC members to disregard their obligations to the court when it comes to the arrest of President Omar al-Bashir of Sudan (and before his death, former Libyan leader, Muammar Gaddafi).

But the AU’s role in paving the way for justice for crimes committed in Kenya is more consistent with its founding principles, which reject impunity. This commitment is echoed in other actions the AU has taken to support the ICC. These include supporting efforts to take LRA ICC suspects into custody.

Indeed, in its charter, the African Union promised to ‘promote and protect human and peoples' rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law’. It is difficult to see how the African Union can meet these important objectives without actively encouraging its members to strengthen domestic justice mechanisms and, where they are either weak or blocked politically, to embrace the ICC as a court of last resort in the face of mass atrocity, as is precisely the case in Kenya. The AU should not allow itself to be seen as shielding people responsible for serious crimes or providing a platform for undermining international justice.

Far from giving in to any effort by Kenya to drive a further wedge between the AU and the ICC, the AU should use its upcoming summit to call publicly for the new government’s full cooperation with the ICC, closing the space available to Kenyatta and Ruto to rewrite history when it comes to the real reason for the court’s involvement in Kenya—to bring justice to victims who have been waiting now for more than five years. In so doing, African countries would reaffirm that at 50 years, the fight against impunity remains a cornerstone of their union.

* Otsieno Namwaya is the Kenya researcher at Human Rights Watch. Elizabeth Evenson is senior international justice counsel at Human Rights Watch.

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