African solidarity and autonomy were in the spotlight in May when the African Union (AU) celebrated the 50th anniversary of the establishment of the Organisation of African Unity, the AU’s predecessor. These ideals were expressed most strongly in the African leaders’ opposition to the International Criminal Court (ICC), especially its cases concerning Kenya, during the 21st Ordinary Session of the Assembly of Heads of State and Government in Addis Ababa from 26 to 27 May.
As has always been the case with AU decisions on the ICC and international justice, the continent’s leaders began by reiterating their ‘commitment to combating impunity and promoting democracy, the rule of law and good governance throughout the continent’. They also acknowledged Uganda’s presentation on behalf of the eastern African region on ‘international jurisdiction, international justice and the International Criminal Court’ – a hint perhaps of this region’s influence over the tone of the summit’s decision.
Also in keeping with previous decisions, the AU called for fairness and transparency in the application of international justice, and reaffirmed its belief that justice should not ‘impede or jeopardise efforts aimed at promoting lasting peace’. The AU’s response to the ICC’s Kenyan cases has raised questions for those concerned with justice, the rule of law and the rights of victims in Africa. The principle of complementarity in the ICC’s Rome Statute states that national courts should have the first option to try those accused of grave crimes. Citing this, the AU endorsed the eastern African region’s ‘request for a referral of the ICC investigations and prosecutions in relation to the 2007 post-election violence in Kenya’ so as to allow a ‘national mechanism’ to handle the cases. The Daily Maverick reported that all African states, except Botswana, allegedly supported this decision.
The AU’s stance against the ICC’s jurisdiction of the Kenyan cases reflects Africa’s deeper concerns about the court. The relationship between the AU and the ICC has been acrimonious since the court first revealed its intention to charge Sudanese President, Omar al-Bashir, for crimes committed in Darfur. Subsequently, the perception that the ICC is biased against African states has further aggravated this precarious relationship.
The ICC has been the target of criticism from public and diplomatic quarters in Africa. It is perceived that the ICC has been targeting the continent and ignoring serious crimes committed in other regions. At present, there are cases involving the Central African Republic, the Democratic Republic of Congo, Sudan, Libya, Kenya, Mali, Côte d’Ivoire and Uganda before the ICC. The lack of cases from elsewhere, especially Israel, Palestine, Syria and Afghanistan, has been attributed to the ICC’s bias, bolstered by unequal relations at the UN Security Council. During the recent AU summit, African leaders expressed dissatisfaction at what they described as the racist targeting of African leaders. These views underlie AU support for the use of African justice systems, not the ICC, to administer cases in Africa.
In principle, holding trials for grave crimes in domestic courts is preferable. Moreover, the Rome Statute, through the principle of complementarity, allows the ICC to take on cases only when the state concerned has proved unwilling or unable to prosecute the accused itself.
However, when it comes to the Kenyan cases being handled by the ICC, complementarity does not apply as neatly as the AU’s latest decision implies. Although Kenya is in the process of setting up special courts to try crimes against humanity, there is some doubt about the capacity of the Kenyan criminal justice system to administer such complex legal proceedings, especially because the charges in question have been brought against Kenya’s President, Uhuru Kenyatta, and Deputy President, William Ruto. One important concern would be the need to protect witnesses who would have to testify against the country’s most powerful leaders. Witness protection has already proved a challenge for the ICC, and although Kenya has recently established its own Witness Protection Agency, it remains to be seen whether it is ready to handle high-profile, politicised cases.
When talking to Voice of America, Harun Ndubi, a Nairobi-based human rights lawyer, expressed the view that Kenya is not ready to handle such trials: ‘The African Union has not said anything in sympathy or empathy with the victims, except to say they want the cases to come back to Kenya when there is no existing mechanism for dealing with the post-election violence against the suspects.’ The ICC’s chief prosecutor, Fatou Bensouda, has explained that Kenya would need to show the ICC judgesthat it is ‘genuinely conducting proceedings against the same persons for the same crimes’ for the ICC to cede jurisdiction over any of its cases. These well-known legal requirements were reflected in the 2011 decision of the ICC judges to reject the Kenyan government’s challenge to the admissibility of the ICC’s two cases relating to the post-election violence.
Both the AU and the ICC have declared their commitment to prosecuting offenders and seeking redress for victims, and this should be their mutual focus. African civil society groups have expressed concern at the potential for the long-standing tension between the organisations to detract from their core intentions. In a bid to offset some of this tension, more than 50 African and international civil society organisations wrote to African foreign ministers before the May AU summit. These organisations, including the Institute for Security Studies, applauded the AU on its 50th anniversary and advised on opportunities and strategies to advance international justice in Africa. They called for greater collaboration and improved dialogue between the AU and the ICC, and argued that there is still support for the ICC from individual African states, evident in the fact that 34 states have ratified the Rome Statute and continue to refer matters to the court.
Although this move by civil society is important, it is apparent that much more is needed to improve African leaders’ political support for the ICC. The AU needs to acknowledge the role of the ICC as a ‘court of last resort’, which serves in situations where judicial procedures have failed or the country concerned has been unwilling to prosecute. The ICC’s jurisdiction over the situation in Kenya came about as a result of the absence of national judicial proceedings after the violence in 2007–2008.
There needs to be greater dialogue between the AU and the ICC in order to clarify misconceptions, increase awareness of each other’s concerns and avoid tension between the two organisations. Both parties need to actively improve communication, and the formation of an ICC liaison office – first mooted several years ago – would open and maintain contact between the two organisations.
Dispensing justice and peace may be the shared objectives of both the AU and the ICC, but there is little agreement about how to balance these two aims in practice. This should not however detract from the objectives themselves. As the AU takes stock of achievements and challenges over the past 50 years, and looks to the future, it should focus on turning its political commitment to international criminal justice into practical action.
Uyo Salifu, Researcher, Transnational Threats and International Crime Division, ISS Pretoria.
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