African leaders and presidents are seriously considering pulling out en masse from the being signatories to the Rome Statute that formed the International Criminal Court (ICC) based at The Hague, Netherlands. This follows their dissatisfaction with what they allege to be a bias on the part of the court against cases touching on Africans. A case in point is where the president of Kenya, Honourable Uhuru Muigai Kenyatta and his deputy, William Samoei Ruto, both of whom face serious war crimes and crimes against humanity perpetrated in Kenya’s bloodiest post-election violence of 2007/2008, have been denied immunity by virtue of their offices by the court (Murungu and Biegon, 213). They had requested the court to put their cases off until they leave office to allow them perform their constitutional duties and serve the people of Kenya uninterrupted. However, it doesn’t seem to be a very good reason for African leaders to rally their support behind the idea of pulling out of the Rome Statute.
First of all, there is no clause in the Rome Statute that grants immunity to a sitting president or leader. Everyone is assumed to be equal under the law (Arieff., Margesson, and Browne, 142). Affording anyone immunity by virtue of their office would be self-defeating since the Hague based court was actually created to deal with such leaders, who would otherwise be immune to justice in their own countries by virtue of the offices they hold.
Secondly, the Kenyan case is a unique one since both the president and the deputy president assumed office in their status as suspects of war crimes and crimes against humanity. One is tempted to believe that they ran for office purposely to get a chance to defeat justice for the crimes facing them at the International Criminal Court. As would be expected, there is no clause in the Kenyan constitution that bars a person from contesting for presidency even if that person is a suspect of such serious crimes as those facing the two country’s top leaders at the international court.
In October 2013, African leaders met in Addis Ababa Ethiopia for an extraordinary summit to discuss whether as a continent, Africa should continue cooperating with the International Criminal Court or not. During the summit, they unanimously agreed that the International Criminal Court is an imperialist court that was designed to frustrate African leaders in a bid to perpetuate Western ideologies and to impose on African countries leaders who agree with and support the ideas of the continent’s colonial masters. They argued that of those indicted in the court, 99% are Africans.
Sadly, their figures are not far from the truth. It is curious that, looking at the list of people indicted in the court, almost all of them are Africans. Naturally, and rightly so, this makes them feel that the court isn’t keen on prosecuting suspects from the other continents apart from Africa.
But should it be any surprise that African suspects are the majority at the international court? Is it by default or design?
Nobel peace laureate Desmond Tutu, an iconic anti-apartheid South African, labelled the African leaders sitting at the extraordinary A.U. Summit in Addis Ababa as Nazis who were out to evade justice, arguing that the number of Africans indicted by the international court was a clear reflection on the continent’s human rights situation.
“Those leaders seeking to skirt the court are effectively looking for a license to kill, maim and oppress their own people without consequence. They believe the interests of the people should not stand in the way of their ambitions of wealth and power,” wrote Tutu.
The African presidents, however, are not vague in their claims. They have examples of countries where equal or even worse atrocities have been committed or continue to be committed yet the International Criminal Court has turned a blind eye on the perpetrators who continue walking freely. Some of the examples cited include Afghanistan, Colombia, Venezuela, Syria and Burma. The leaders wonder loudly why the court is so swift with Africa cases while clearly ignoring the crisis in this nations.
Another argument that has been developed in defence of the Kenyan leaders is that the court proceedings with these cases is jeopardising the effort of reconciliation among Kenyans. They argue that the president and the deputy president were the kingpin leaders of the warring tribes; Kikuyu and Kalenjin respectively. By continuing with the case, African leaders feel the healing wounds are being opened up and this goes against the spirit of forgiveness and reconciliation between the two tribes.
The claim by these leaders about the court being politically manipulated by certain forces is not new. In 1998, while chairing a subcommittee hearing on the ICC, the former Senator Rod Grams stated, “Now, while I am relieved that the administration voted against the treaty of Rome, I am convinced that it is not in itself sufficient to safeguard our nation’s interests. The United States must aggressively oppose this court each step of the way because the treaty establishing an International Criminal Court is not just bad, but I believe it is also dangerous.” His sentiments were shared by Senator Dianne Feinstein who, in the same hearing said, “None of us would like to see a court that frivolously prosecutes Americans or which acts with politics, not justice, as its motivating force.”
Chacha Murungu and Japhet Biegon, in their book, Prosecuting International Crimes in Africa, say that the International Criminal Court is meant to complement and not to supplant national judicial systems. That is fine, but it should be noted that the commission of inquiry put up to investigate Kenya’s post-election violence had recommended that a local tribunal be put up so as to try the suspects in Kenya (212). Failure by parliament to create the tribunal would mean the suspected perpetrators being tried at the International Criminal Court in The Hague, Netherlands. Since the names of the suspects were still not known, the bill seeking to create the tribunal was overwhelmingly defeated in Kenya’s parliament with the now infamous quote “don’t be vague, go Hague” dominating proceedings in the parliament. The two leaders now lobbying to have Africa pull out of the Rome Statute are on record being at the forefront in ensuring the tribunal was not formed.
President Uhuru Muigai Kenyatta and his deputy William Samoei Ruto have also requested to have their case referred back to Kenya, a request has also denied by the court. Due to the precarious situation of security in Kenya, brought by her close neighbourhood to Somalia, it would be considerate to refer the cases back to the country while the International Criminal Court keeps an eye on the proceedings (Jurdi 17).
Whichever way you look at it though, the bid by African presidents to have the continent pull out en masse from the Rome Statute is selfish and in bad taste. The Kenyan cases at the International Criminal Court should not and must not be the turning point to international justice being served in an entire continent. One can only imagine the gravity of the danger that will come with this pull out. It is a move that will essentially seal the fate of many generations of the continent just to protect the interests of two individuals. Nobody should be more important than a country, much less, a continent.
References
Arieff, A., Margesson, R., & Browne, M. A. (2009, July). International Criminal Court cases
in Africa: Status and policy issues. LIBRARY OF CONGRESS WASHINGTON DC CONGRESSIONAL RESEARCH SERVICE.
Du, P. M., & Institute for Security Studies (South Africa). (2008). The International Criminal
Court and its work in Africa: Confronting the myths. Pretoria: Institute for Security Studies.
Dutton, Y. M. Committing to the Court: Rules, Politics, and the International Criminal Court.
Glasius, M. (2006). The International Criminal Court: A global civil society achievement.
London: Routledge.
Jurdi, N. (2011). The International Criminal Court and National Courts: A Contentious
Realationship. Ashgate Publishing.
Murungu, C., & Biegon, J. (2011). Prosecuting international crimes in Africa. Pretoria:
Pretoria University Law Press.
Schabas, W. (2011). An introduction to the International Criminal Court. Cambridge, UK:
Cambridge University Press.
