AU leaders circle the wagon, as ICC insists on continuing to do its job to ensure accountability

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by Keffyalew Gebremedhin – The Ethiopia Observatory
At the tail end of his maiden stewardship of the first part of the 21st African Union (AU) summit, the current chair PM Hailemariam Dessalegn had shouldered enormous responsibilities. Obviously, it is too early for any definitive assessment of his performance and the vision he has for Africa. On the last day of the summit though, i.e., 27 May, he was a content with his leadershp and the achievements made in tackling “the items on our agenda in this spirit of revival and rejuvenation”, as he told the assembly in his closing remark.
AU Chair Hailemariam Dessalegn with AU Commission Chair Nkosazana Clarice Dlamini-Zuma
AU Chair Hailemariam Dessalegn with AU Commission Chair Nkosazana Clarice Dlamini-Zuma
The press conference that came at the last day was literally saying the same thing. He was seen expressing in unvarnished manner both the sentiments of African heads of state and government about the future of the continent and the occasional issues that had generated some emotions too. Clearly, his message to the media has come across with the authority AU leaders have reposed on him, for which he displayed utmost loyalty, including in displaying their emotions.
Unfortunately, it is that uncanny ability of his to call a spade by its name in an electrified state, which got to be picked up the most. For instance, where former AU Commission Chiar Jean Ping chose to refer to the actions of the International Criminal Court (ICC) “discriminatroy“, he chose “race hunting.” In the end, when his is weighed against the language of the communiqué, it is comforting to learn that temperance of sorts is still alive, as also have shown several resolutions and decisions of the assembly over the years.
The AU summits have on occasions moved from rejection of abuse of the principle of universal jurisdiction as in the case of the 2008 summit in Sharm el Sheikh to trying in the 2010 Kampala summit to circumscribing the activities of the ICC altogehter by amending Article 16 of the Rome Statute (Doc. Assembly/AU/10(XV). The idea was that African leaders wanted intervention by the UN Security Council to get indictees more time outside, or total suspension of cases. This means that they wanted politicization of justice on an international scale. Most remarkable in rebuking this was former UN Secretary General Kofi Annan who warned, “The States Parties to this historic Statute must therefore pose the question, “What kind of leadership is this which would absolve the powerful from the rules they apply to the weak?” A laggard leadership is no excuse.”
Fortunately, that effort quitely fizzled out, although it has hardly died down, as we saw it in Addis Abeba last week still kicking and screaming.
Evidently, there scarcely is constancy of virtues in following the majority at all times especially in the not so straightforward world of diplomacy. To my mind, that is why Prime Minister Hailemariam’s single-minded, for that matter aggressive, pursuit in one direction, i.e., the rescue of the newly elected Kenyan leaders from their ICC-indictee-status, has only made uncomfortable some numbers in the region and abroad.
At the May 27, 2013 press conference, marking the closing of the 21st summit, Hailemariam deployed verbal cannon of strident quality to express the emotion and ‘anger’– apparently of the majority of African heads of state and government against the ICC. The only exception reportedly was the president of Botswana, who had shown interest in getting President Uhuru Kenyatta and Vice President William Ruto to answer to the Court. Yes, in reflecting the feelings of the huge majority, the AU chairman fumingly accused the Court of “race hunting.” Thus, it was not the AU’s Vision 2063 message that reverberated around the world.
This does not mean the prime minister’s characterization of the ICC as racist would not find sympathy in Africa. It certainly would. But this may come with penality against the future of justice in Africa. Already the palpitations are being felt, encouraging retreat from the Rome Statute that founded the Court and where Africa is the largest block with 34 in the ranks of the 122 states party.
Why this fear now? Because increasingly there is perception fully occupying the place of reality. Understandably, it is because of the alarming distinctiveness of the indictees to date – all Africans. That speaks of the truth of that perception, which has given the impression that the Court’s mission and jurisdictions are designed with Africa as its prime target. This has been heard time and again; as a matter of fact it also happens to be favorite topic of discussions in academic circles or the diet of several articles, including by legal experts.
The records of the Court also affirm that the ICC has been in some form seized with 30 cases of publicly indicted individuals: six from DR Congo (two released; one convicted), five from Uganda (one deceased), one from Central African Republic, seven from Sudan, six from Kenya, three from Libya (one killed), and two from Cote D’Ivoire. True, there are no indictees from other regions, for that matter nor even active investigation of cases elesewhere.
In oprening the Court’s webpage, one is greeted with maps of countries from where cases have come. And in total they are eight – Uganda, DR Congo, Darfur (Sudan), Kenya, Libya, Cote d’Ivoire and Mali. From this, one could see that by design or coincidence, the ICC since its founding has zoomed on Africa, thereby justifying to many Africans such conclusion and the unwanted perception of the Court.
While this may have the appearance of reality, how the ICC came into dealing with these needs to be taken into account. In most instnaces, the ICC is invited by African states to take action in the light of its mandate in para of the Statute – the crime of genocide, crimes against humanity, war crimes and the crime of aggression. There were also cases referred to the Court by the United Nations Security Counicl.
Of the allegations against the Court and after Abidjan had seen the back of former President Laurent Gbagbo, the man who stole the election results and caused mayhem in that country, in July 2011 right there from the capital the new ICC Chief Prosecutor – then the deputy – said, “We say that ICC is targeting Africans, but all of the victims in our cases in Africa are African victims. They are not from another continent. They are African victims and they are the ones who are suffering these crimes.”
In a separate article and as a follow-up to this, I intend to return to this issue to seek some light on AU-ICC relations. The point is that it is easy to withdraw from the Rome Statue and association with the ICC. A state party need only to invoke Article 127 of the Statute and issue notification to the United Nations Secretary General. That would be marked a joyful day for warlords and dictators across Africa. It would not be the same for the victims of abuses in many corners of Africa. That in the first place was the reason why in the transition from the OAU to the AU, when sovereignity loosened its grip, the latter’s Constitutive Act in Article 4 (o) agreed to the governing principles of: “respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities.”
In the circumstances, in Addis Abeba when the AU was deliberating on its relations with the Court – not surprisingly testimony against the ICC came from none other than President Omar al-Beshir of the Sudan, another indictee on whose head hang two arrest warrants from 14 July 2008 and 12 July 2010. The Sudanese president told France 24, the ICC “is widely seen as the new face [of] colonization aimed at terrorizing African leaders … If you look at all the people who have been indicted by the International Criminal Court, you can see they’re all Africans, especially those who oppose and the reject the pressure of western politics.”
Is the AU doing Kenyans justice?
It appears to me that Hailemariam’s comfort in going headlong to protect the accused Kenyan officials might have arisen from two considerations. Kenya is Ethiopia good neighbor, and it is understandable that he should opt for what is good for peace and stability in that country. For him equally importantly, he had to stick to the position taken by the late Meles Zenawi on the matter. After all, in Septmeber 2012 he had told the world that nothing he had ever put in place as polices or wanted to be implemented would ever change.
In this regard, it would be recalled that when Kenya government sent Vice President Kalonzo Musyoka to Addis Abeba in January 2011 to solicit Ethiopia and AU’s help in getting the ICC to defer what then was known as the so-called Ocampo Six case, Meles stated:

    “We will not hesitate therefore to support a position presented by Kenya, not only because we must always come to the aid of our neighbour, but also because we believe that the course the country has taken would be the best under the circumstances.”

How much rigour there is in that argument is simply a different matter, especially given the way things get done in Ethipia. Thus the current AU chairman tramped by the familiar terrain, with no thought of its implications for both Kenya and Africa’s future. Already in an April 25, 2013 interview on France 24, one could see that his mind was made up. But one could see him weakening his own position by reducing the whole argument to the personality and dynamism of Uhuru Kenyatta and the outcome of the latest election. Any politician who has taken part in bona fide election, the kind of which we have never seen in Ethiopia save 2005, is always keenly aware that a country is split mainly between the winning and losing camps.
Kenyatta-Ruto: relishing electoral victory (Courtesy of  Kenyan post)
Kenyatta-Ruto: relishing electoral victory (Courtesy of Kenyan post)
Recall that, Mr. Kenyatta carried the election by about 50.7 percent. Therefore, what the AU has ignored is the fact of half of Kenya not being with the victor. Also disregarded was Kenyan public opinion poll that was conducted in January 2013 whether the pair should run while they were ICC indictees.Polling data showed that 46 percent of Kenyans were opposed.
It is this awareness that was totally lost at the 21st AU summit. Thus, with the summit standing in support of the transfer of the ICC case to Kenyan courts, it decidedly stood against the interests of those Kenyans, when it is supposed to encourage national cohesion. In Kenya, the AU lost face for the many.
As a matter of fact, shortly after Hailemariam’s press conference and the day the summit adopted the ICC related communiqué, a human rights lawyer from Nairobi expressed the frustration of thoes people with the following words:“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.”
Bear in mind that in the 2007 Kenya election, marred as it was by violence, 1,100 people lost their lives, substantial properties got destroyed and to this day thousands of people remain displaced.
I should bring in here one additional fact that should have not been allowed to escape the attention of the AU current chairman, other African leaders and all Kenyatta position supporters on the ICC issue. That is, in early May 2013 Kenya’s Truth, Reconciliation and Justice Commission had issued its long-awaited report on the 2007 violence. All its recommendations are mandatory, becasue of the deal made when Kofi Annan was heading the effort to restore normalcy in Kenya. Therefore, the report, among others, calls for prosecution of all those involved in the 2007 violent election, according to a BBC report.
By implication, it is very difficult to see how this could excludes President Uhuru Kenyatta and Vice President William Ruto – already known ICC indictees. Those close to the commission’s report, say it had already been handed to the president long before the AU summit and, according to the BBC, it is victim-centered.
Could Kenya’s leaders stand in support of the report’s recommendations? From the manner things have zigzagged this far, the indications are they might not. Recall that around the first week of May, Kenya approached the United Nations with a confidential letter, requesting the Security Council to intervene for the ICC charges to be dropped. Of this and without anticipating what pledges would be made by the new president in subsequent days, their permanent representative to the UN told the media at the time, i.e., “What this delegation is asking for is not deferral; what this delegation is asking for is for the immediate termination of the case at The Hague … The implications of Kenyatta’s trial for the viability and continuity of the state should be self evident.”
With such malleable position, Kenya distributed nuanced paper at the AU foreign ministers meeting preceding the summit, according to Reuters, soliciting the support of African states to urge the ICC to “terminate the case or refer it (to Kenya) in view of the changes to Kenya’s judiciary and constitutional framework.”
What changes are they talking about? Who made the changes? What did they have in mind in so doing? I don’t know the answers to these questions.
Africa must build its future on solid foundation
I am turly pleased that the March 2013 election in Kenya went peacefully, and as free and fair as it could possibly be. Kenyans already enjoy many freedoms, especially compared with Ethiopians. They enjoy their independent and vibrant media. Their courts serve as places of real recourse for citizens. It has been a country where private sector development of the economy has become the bedrock of national ideology.
It is these freedoms and independence that need to be protected and enriched, anchored on the rule of law. Otherwise, if the AU and the new leaders are allowed to prevail, there is no certainty that Kenyans can count on the rule of law tomorrow or by the time of the next election cycle.
This article has nothing personal against the AU chairman or the Kenyan leaders. It only reflects the author’s best intentions for and interests in Africa’s future, i.e., the desire to see impunity eradicated from our region.
During his press conference, Hailemariam asked, “What does the ICC need? The ICC should not be chasing Africans; 99 percent of the indictees are African [actually it is 100 percent]. It does not mean Africa is operating out of impunity.”
I disagree with the AU chairman; impunity has got hold of most African leaders; and those that have become warlords because there is no room for them in the different palaces are in the meantime butchering Africans. Think of what percentage of Congolese wowmen have been raped, or African farmers kicked of by security forces becasue the lands must as quickly as possible need to be handed over to foreing investors or politicaL supporeters of the ruling parties, etc.
It goes without saying that in therte lies the secret of Africa’s destitution, why institutions do not flourish in our countries. Because of that, the rule of law in Africa is either non-existent or unthinkable. The functioning few institutions that function are dependent on the will of individuals – the good samaritans of political governance – instead of their proper functioning being the right of every African, a requirement decreed by law. If Africa is to win the respect of its people and the outside world, this has to come to an end today, not five years from now when the next election arrives, nor after fifty years, as part of the package in the AU’s Vision 2063!
Has the ICC said anything in its defense?
ICC Cheif Prosecutor Fatou Bensouda
ICC Cheif Prosecutor Fatou Bensouda
We have heard something,very restrained. Under its new African Chief Prosecutor Fatou Bensouda (The Gambia), who took the post in June 2012 – possibly under her instruction – the Court’s spokesperson the first time around simply stated, “The International Criminal Court will not be reacting to African Union resolutions.”
Possibly after some reflection, the chief prosecutor who at the time was briefing researchers at the South African Institute for Security Studies (ISS) had a different idea. She is quoted by Simon Alison of the Daily Maverick saying: “I am not a human rights activist … Our mandate is to ensure accountability for those who bear the greatest responsibility for serious mass offences.”
Of course, the ICC machine grinds slowly. This is the problem with justice, especially when there is the need to ensure that the rights of the indictees are also respected. Therefore, the only swift justice is thunder. The Court’s over ten years journey and after smoking a billion dollars, it has managed to render guilty verdict against former rebel leader Thomas Lubanga Dyilo, child soldiers recrutiter from the eastern Democratic Republic of Congo (DRC), whom in March 2012 it stentenced to 14-year jail term.
How many African countries have tried to raise the prospect of the laws in their books being used against political criminals in power, much less sentencing confirmed perpetrators of human rights violations, agents of genocide and generation killers during that same period?
*Updated with additional materialsdu_pm_haile_mar_des