ICC shows Kenyatta-Ruto cases no escape from justice: Where did AU go wrong on these highly charged matter?

By Keffyalew Gebremedhin
Automaticity of Ruto’s excusal from his trial rejected
We already had occasion on October 19, 2013 to comment on the ICC Trial Chamber’s conditional “excusal from continuous presence at trial” given to ICC-indictee Uhuru Kenyatta on October 18, 2013. We showed uneasy sympathy with the Court’s action, out of awareness that the Kenyan state could not be auto- or remote-piloted, especially at this time when that country needs the full attention of its head of state.
On the other hand, when the Appeals Chamber this morning announced its decision rejecting ICC-indictee William Ruto’s request, which was supported by Burundi, Eritrea, Rwanda and Tanzania – demanding similar treatment of conditional excusal as Kenyatta’s under Article 63 (1) of the Statute – we took great satisfaction. We immediately recognized that this latest decision would put into balance the right to justice of both sides of the Kenyan tragedy – those in the dock and the victims – an outcome of the bloody 2007-2008 election.
What this action by the Court reminds us is that justice is indivisible – a notion and principle to which the African Union (AU) has totally become oblivious or been contemptuous of. Therefore, in upholding the appeal by the Prosecutor, what the Appeals Chamber has done is to inform the world that protracted advocacy of justice for powerful people we witnessed at the AU summit and ever since is not necessarily justice for ordinary citizens, especially the victims.
For this precedent-setting decision, this blog would congratulate Prosecutor Fatou Bensouda and her energy, which sprung her into action against the granting to Ruto of conditional absence from the trial with 20-page appeal document the Prosecutor entitled: “The accused shall be present during the trial.”

The Prosecutor’s essential point is that “The Majority of Trial Chamber V(a) (“Majority”) erred in law when it disregarded this statutory requirement and excused Mr Ruto from attending substantially all of his trial.” In explaining that, she stated, “Whatever “discretion” a Trial Chamber may have, it does not permit it to discard controlling statutory requirements, or to substitute its own policy preferences for those of the States Parties. The Majority it [sic] is bound to apply the law as it stands. The Decision fails to do this, and is incorrect as a result.”
Meanwhile, it is our understanding that whatever resolution that is being drafted for action by the Security Council, requesting the ICC to defer the trial for a year for both Kenyan ICC-indictees, may in this situation be forced to move to its natural death. We are equally pleased by the position the United States took, as articulated on October 23, 2013 briefing to the press. There, the State Department indicated, “We continue to encourage Kenya to meet its commitments to ensuring accountability for the victims of the post-election violence, including by cooperating with the ICC.”
The AU Chairman and a few of his colleague’s anti-ICC highnoon
Today’s important decision at the ICC’s Appeal Chamber brings this blog to winding down its long engagement on this matter. Therefore, as a concluding remark on the efforts so far, a revisitation is made hereunder regarding the AU’s misguided action against the ICC – assuming that a lesson or two would be learnt. It should be clear at the outset, however, that this blog is not defending ICC’s imperfections, although even there it represents improvements as compared to our national and regional failings as far as justice and human dignity are concerned.
As ineffective as the Court may have been, it is our considered view that Africans could benefit more by seeing it as work in progress and hence the need to strengthen it; we sincerely believe and say in the circumstances, it remains the last recourse for the peoples of Africa – indeed other developing regions too –and mechanism for small redress via international justice.
For this, we begin from Ethiopia’s chairmanship of the AU. Issues aside, Prime Minister Hailemariam Desalegn’s secular crusade against the Court has been blindly persistent and naïvely risk-seeker. Fortunately, instead of giving indicted African leaders in power total relief from accountability while in office – as the AU leaders had wanted – with its clear decisions Kenyatta and Ruto, the ICC has successfully countered the AU’s excesses, which are aimed at protecting those in power.
The prime minister’s headlong dive into this imbroglio started in early 2013, with Ethiopia’s assumption of the rotating chairmanship of the organization. As a long time keen observer of the AU and Ethiopia, I must frankly state that Hailemariam’s arguments on this matter have been fortified by emotions, not the logic and clarity the situation demands. Obviously that is why the anti-ICC position he tried to promote within Africa and the international community has appeared demented – including that of the few cheerleading heads of state colleagues of his in East Africa, driving him from the front and behind.
More importantly, the cause they claim to have espoused, i.e., ensuring respect for the dignity of Africa and Africans became two-edged sword. The majority of Africa did not need persuasion to see that the efforts of some of our leaders was vacuous and, at its worst, deceptive.
Why do I say this?
It is because, by definition the ‘African dignity’ platform they campaigned on was that of the ‘dignity of serving African heads of state.’ Experience has shown that this ‘dignity’ only empowers them to imprison at any time without due course; it is the freedom and liberty to silence and cruelly eliminate political opponents. In reality, it is the indignity by which they empower themselves to determine the contents of election boxes to remain in power.
When that does not work for them as shortcut to power, their ‘African dignity’ is translated into the power to cause division of all sorts amongst peoples and within society along ethnic lines. With that they tear apart communities, a country or countries with rich cultures, history and sense of unity that have kept the peoples together and at peace and mutual tolerance.
Briefly put, the crux of their logic is that this ‘African dignity’ needed the defense and protection of Africans rallying together – if possible with small help from the United Nations Security Council. They never told the world that all they wanted is to ensure the freedom of our leaders to exercise impunity.
The proper question in this situation to African leaders is how dignity could be divisible. This is to say, as they claim, is there separate class of dignity for “sitting African heads of state” that must be protected and another for the victims of the powers to be or state violence, for instance, as in Darfur, DR Congo or Kenya during the 2007-2008 election and many more places from the past or those that come in the future?
Fortunately, the international community is not impressed by the actions of a few activist heads of state within the AU. It may have only entertained some serious commentators in the media, who on account of it had a field day to air their ridicule and stern disapprovals.
Moreover, since Al-Bashir’s indictment in 2008 the United Nations Security Council has received the complaints of AU’s heads of state against the ICC. However, in each of those instances, according to Hailemariam’s statement to the UN General Assembly at its 68th session on 25 September 2013, the Council did not even acknowledge receipt of the AU leaders’ requests, much less acting upon it.
Is this because the whole international community has decided to stand against “sitting African heads of state”? As an African, I do not think for a moment that is the case. Rather the reason is that the requests of African heads of state – especially those in East Africa – have lacked political sensitivity toward the victims of their cruelty, an astute political appreciation of the situations and a sense of accountable governance and, most of all, moral quality.
After all, the Security Council has been aware that, of 20 cases in eight situations that have been brought before the ICC, it is only two cases – Cote D’Ivoire and Kenya – the Chief Prosecutor under the provision of Article 15 and authorization by the Pre-Trial Chamber turned into investigating.
The rest were brought to the Court by four African states, as states parties to the Rome Treaty. These are: Uganda the Joseph Kony case, the Central African Republic, DR Congo and Mali. These were countries troubled by their internal problems and the consequent danger of destabilization.
The situations in Darfur, the Sudan, and Libya were referred for action by the Court by the UN Security Council.
In the light of this, it is unfortunate some like Uganda should now delete that from their memory and join the East Africa heads of state crowd to become complainant against the ICC.
Let us be clear about one thing once again. The ICC is not a store of justice or effective as an institution – but ‘a court of last resort’ – protecting the interests of ordinary Africans from the impunity of those in power. This is because national institutions do not provide justice and protection. Clearly, if the whole of Africa were to fall prey to this anti-ICC machination, the victims would still be more and more Africans by a few African leaders that would turn against them with impunity.
While Article 4 of the AU’s Constitutive Act since 2000 has endeavored to hold African states in partnership with the ICC – at least at the level of principles, obligating them to commitment of “respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities” – what has been happening and this latest bold effort by the Addis Abeba AU summit now shows that our Africa still has a long way to move forward.
Put in another way, sad as it is, this narrowing of differences at the level of principles, has hardly managed to stop many African leaders from becoming the prime tormentors of their peoples. That is why it has been starkly clear now for many Africans that the intention of their leaders was a botched attempt at securing insurance and preparatory for their flight from present and future justice.
For instance, we read in news sources that a documentary has already been made in Sweden about the massacres, human tragedies that have befallen Ethiopian Ogadenis for at least a decade and a half by the TPLF army. It is understood that, when this was broadcast on Swedish television, many people and especially jurists in Sweden were shocked by the tangible first-hand evidences before them. Becuase of this they are reportedly planning to hold the Ethiopian regime accountable by approaching either the ICC or the appropriate United Nations treaty body, more likely the Committee Against Torture to get investigations initiated on crimes against humanity. Others speak of the Gambela massacre, or Addis Abeba’s in 2005 to be linked to that.
This means that, if the AU were to succeed in killing this experiment in international justice, as attempted by Hailemariam et.al., the first casualties would have been none other than ordinary Africans in a number of countries – needless victims of impunity.
We realize that in some of those countries already visited by cruelty and impunity to date, despite the lapse of time, peace has hardly been fully restored; with the fabrics of their societies badly hit, there still is no sense of coming together amongst and across ethnic groups in a number of these societies.
That is why it is important for the AU leaders to stop and think for a moment, before they jump the gun. Everyone aiming at bringing peace and harmony within peoples and communities would serve Africa better.
One last thing on this is that our leaders need not see an opening in the latest conditional and temporary relief to Kenya’s leader from the ICC docks. This is to say, founding normalcy on the premises of justice and confidence is better guarantee for lasting peace in Africa and the security of our leaders.
This in turn is the ultimate guarantee for success, an improved tool for national development and vital defense against terrorism, to which Africa has increasingly become vulnerable.
A forgotten host country interests and the Meles legacy

On a separate note, as an Ethiopian, I should point out that I strongly feel Hailemariam’s unbridled gear against the ICC has undermined Ethiopia’s longstanding interests as a headquarters country for the regional organization. We recall that the Ethiopian government has also been depository of the pan-African organization’s Charter.
What makes a host country different from others in regional and international relations is the fact of it usually being burdened with added responsibility to pay close attention to the health of the organization. A good host country would have clear insight of what issues would strengthen it, or come down the road as a boomerang to damage the organization.
Failure in that is an unmistakable evidence not only of poor stewardship of the organization but also secular weakness in the diplomacy of the host country itself. When the host country leader turns into a Nero to burn Rome, it becomes a different story altogether.
Divisions could weaken organizations; it is like cancer metastasizing in a human body, eventually causing death. All that it needs is unguided missiles like Sudan’s Al-Bashir, Museveni or Gaddafi II, etc, to start the political fire of dissension and derailment from agreed upon regional objectives.
Thank heavens that, in this ICC case we could witness some West African states, mostly French speaking Africa (with complicity of English speaking Africa), quietly and firmly making the point that they need the ICC, notwithstanding its defects and ineffectiveness.
Why the Ethiopian regime is nervous about ICC-indictment of Sudanese and Kenyan leaders

For Hailemariam and his colleagues, there were only two considerations. First, they ask what Meles said on that matter. Of course, on January 22, 2011,Meles intimated the following to the envoy Kenya sent to Addis Abeba in the person of Vice-President Kalonzo Musyoka:

    “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.”

This is much easier promising to support as a member than the single-minded pursuit of the ICC as chairman, with no other considerations than handling the gavel. On ICC, Hailemariam went beyond the call of duty as chair. He was repeatedly seen on the media getting worked up with mentioning of ICC – cursing and belittling the Court on international fora and in his press conferences – for that matter even against the facts.
This probably is because the second but his real agenda for Ethiopia – designed by his predecessor – is to get Kenya fully supplanting its historic, wise and longstanding friendship with the country with that of the TPLF. This results with Kenya not allowing its territory to be used by forces opposed to the Addis Abeba regime, which has a number of them. This has worked for the TPLF, since Kenya has even started working against its international obligations by handing over to the regime bona fide refugees, one of whom, an engineer by training Engineer Tesfahun Chemeda died this year due to the enormity of the tortures and beatings he suffered.
Furthermore, since the regime is also interested in becoming a regional hydropower center, it has been trying to remove any danger to any of its commercial interests, especially regarding the sale of electric power from Gibe III dam. Linked to this need to handle Kenya well is also the difficulty the future state of Lake Turkana and how its residents would fare, when the Gibe III current is up and running, possibly within a year.
For the same reason, Meles put his finger into a failed rescue effort of Omar Al-Bashir – the Sudanese head of state – a fugitive from justice. On July 28, 2008, The Los Angeles Times dubbed this move by Meles as A diplomatic offensive in Sudanese president’s behalf. The TPLF has debt to pay to the Sudanese leader, who has taken care of their organization in their long years of guerrilla war against Ethiopia.
That is why the whole ICC issue has become a terrible diplomatic soup no one could eat.
If both Meles Zenawi and now Hailemariam Desalegn have seriously considered Ethiopia’s interests at heart, they could have refrained from making the mistake of cementing on one side, while making a hole on the other (even internally in Ethiopia) with their self-serving anti-ICC expeditions that have harmed Africa’s image and interests – including Ethiopia’s.
All said and done, Hailemariam’s efforts at choosing to obey Meles’s ghost (“???? ???”) has clearly ignored Ethiopia’s present and future interests, much as it has what is good for ordinary Africans – the people whose rights the heads of state and their governments ought to protect, but often always trample underfoot.
Both the people of Sudan and Kenya and elsewhere need genuine justice, normalcy, peace and security; in the case of Darfur, United Nations peacekeepers have not been spared even at the time of this writing.
Let’s face it, this attempt by the AU, the leaders of Kenya and the Sudan especially, in trying to escape from justice, they have hurt the longstanding interests and images of their respective countries, including that of their cheerleaders’.
*Title adjusted from ICC showed Ruto no escape from justice: Where did African Union go wrong on this highly charged case?. The article is also slightly edited.
 

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