African Union Countries Rally Around Kenyan President, But Won’t Withdraw From The ICC

on October 12 2013 1:54 PM
Uhuru Kenyatta at the African Union
Kenyan President Uhuru Kenyatta arrives at the African Union summit on Oct. 12. Jacey Fortin

ADDIS ABABA, Ethiopia -- African officials who gathered for an African Union summit this weekend unanimously agreed that no African sitting head of state should be obligated to stand trial during his or her tenure in office and that the AU would strongly push for a deferral of the case of Kenyan President Uhuru Kenyatta, whose trial for crimes against humanity is scheduled for next month at the International Criminal Court, or ICC, in The Hague, Netherlands.

The summit here in Ethiopia’s capital city focused on the tense relationship between Africa and the ICC, which is meant to be a judiciary of last resort for serious crimes. Its mandate is global, but only Africans have been indicted so far. Vocal opponents of the ICC, including officials from several East African countries and Zimbabwe, argue that the tribunal targets African suspects and refuses to honor African officials’ requests regarding procedural issues.

Ethiopian Prime Minister Hailemariam Desalegn, whose country is not an ICC member, said in an address at the summit on Saturday that the tribunal was acting unfairly. “On a number of occasions, we have dealt with the issue of the ICC and expressed our serious concern over the manner in which the ICC has been responding to Africa’s considerations,” he said. “The double standard that both the United Nations Security Council and the ICC have displayed with regards to the AU’s request for deferral for prosecution in a number of cases has been particularly worrisome.”

The AU will now send delegates to push for deferral -- which lasts for one year and may be renewed -- in the Kenyatta case via consultations with the United Nations Security Council, or UNSC, which has the ability to suspend ICC investigations and prosecutions. The AU has tried and failed to secure formal deferrals in the past, but officials hope that the summit will send a stronger message this time around.

“In the case of going to the Security Council again, it shows that we are indeed respecting law, and we want to go through the legal methods in solving our problems together with the international community,” AU Commission Chairperson Nkosazana Dlamini Zuma told reporters after the summit. “We hope they will meet us halfway.”

The African Union Commission will also make an effort to expedite the development of the African Court on Human and Peoples’ Rights, an international judiciary body that could preclude the necessity of turning to the ICC. The court began operations in 2006, but it has since been plagued by administrative hang-ups.

The idea of mass withdrawal from the ICC was floated when African foreign ministers deliberated over the issue for more than 12 hours on Friday, but it failed to gather broad-based support from countries such as Nigeria, Ghana and Botswana, among others. Instead, the ministers agreed that sitting heads of state should not be put on trial, a motion that was affirmed by heads of state on Saturday. They also decided that if the UNSC consultations fail, the AU will request a postponement of the case.

Tensions between African countries and the ICC came to a head in March, when Kenyatta won Kenya’s presidential election. He and Deputy President William Ruto had both been indicted by the ICC in 2011 on charges of backing militants during the bloody aftermath of the disputed 2007 election, when ethnic differences led to violent clashes that killed at least 1,200.

Kenyatta and Ruto both deny the charges and have pledged to cooperate with the ICC in the past, but they now argue that their obligatory presence in The Hague would interfere with their duties back home. Ruto, whose trial began last month, took a week’s hiatus from the tribunal proceedings after Kenya’s capital city of Nairobi suffered a grisly terrorist attack at a popular mall, killing at least 67, and Kenyatta’s lawyers petitioned the ICC for a permanent deferral of his case on Thursday, citing corrupt court practices.

The ongoing disagreement between the Kenyan administration and the ICC have reverberated across the African continent, culminating in this weekend’s extraordinary summit.

Currently on the ICC’s docket are eight investigations, and all are in African countries despite the tribunal’s global mandate. But ICC representative Fadi El Abdallah said, “The ICC and the AU share the same values of building peace and promoting the rule of law,” adding that “the ICC Prosecutor [Gambia’s Fatou Bensouda] is looking into several other possible investigations. She is conducting preliminary examinations in a number of countries outside of Africa, such as Colombia, Georgia, Korea, Honduras, Afghanistan and others.”

Only 34 African countries are members of the ICC, thereby falling under its jurisdiction, and they joined voluntarily. Furthermore, only two of the investigations currently under way -- in Kenya and in Ivory Coast -- were pursued independently by the ICC prosecutor: In Kenya, the case was taken up when the government failed to meet a deadline to establish a domestic tribunal to try suspected perpetrators of the 2007 violence. Another four countries -- the Central African Republic, Mali, the Democratic Republic of the Congo and Uganda -- submitted their own cases to the global tribunal, in some cases with ICC prodding. The remaining two -- in Sudan and in Libya -- were referred to the ICC by the UNSC.

The AU has asked its members who are parties to the ICC to push for an amendment to the Rome Statute -- the 1998 treaty that established the tribunal -- that would bar heads of state from being tried during their terms in office. African countries make up less than one-third of the tribunal’s member-states, far short of the two-thirds necessary to amend the statute.

As the AU’s new resolution to defer trials for sitting heads of state goes to the UNSC and the ICC membership for consideration, African officials hope the summit has sent a strong message to the international community. “We are indeed very serious about this issue,”  Desalegn said during the summit’s closing ceremony, “and we would like our concerns to be heard loud and clear.”

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