Tuesday, 29 October 2013
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Tuesday, 15 October 2013
Pulling out of the ICC would be Myopic and self serving!
African leaders had an extra ordinary two-day summit on the weekend under their umbrella organisation, the African Union (AU) to discuss the continent’s relationship with the International Criminal Court among other issues. The passed a resolution demanding that proceedings against Kenyan President Uhuru Kenyatta linked to the 2007-2008 post-election violence be dropped.
"The manner in which the Court has been operating, particularly its unfair treatment of Africa and Africans, leaves much to be desired," Tedros Adhanom Ghebreyesus told ministers and delegates at the opening of the meeting.
A source in Addis Ababa said only a handful of countries mainly from East Africa were advocating a withdrawal from the court. The summit came as Kenyatta launched a fresh bid to have the ICC case against him stopped citing "serious, sustained and wide-ranging abuse on the process of the court carried out by" three witnesses in collaboration with the court’s investigators. Kenyatta's lawyers have said that if it is found that those involved abused the court process, "it would necessitate a permanent stay of the proceedings".
The consideration of a mass withdrawal from the ICC, unprecedented in the history of the international legal order, has understandably sent shockwaves across many capitals in Europe, among mainstream international human rights community and even in the elite African population.
“African leaders behind the move to extract the continent from the jurisdiction of the International Criminal Court (ICC) are effectively seeking a licence to kill, maim and oppress their people without consequences.” Those were the un-minced words of pan-Africanist Archbishop Desmond Tutu. That was about 48 hours before the said leaders passed a unanimous decision demanding that no African serving leader should appear before any international court. The Kenyan Vice President William Ruto whose trial was already underway has gone ahead to travel back to the ICC, regardless of the AU decision.
The argument African leaders are putting up that the ICC is racist may seem real at face value when you weigh the numbers indicted by the court. But with deeper factual analysis, you quickly realize that Africa has a real governance problem, coups, terror and impunity. Constitutionalism and rule of law are totally alien in some countries, much as we see periodic elections and failed attempts at democracy. I have made this argument before and I will make it again. Elections and a constitution do not guarantee democracy without independent institutions to apply checks and balances on the system. Africa has suffered the consequences of unaccountable leaders for so long. The live a life completely aloof of the common man and are incognizant of the fact that power belongs to the people in any democracy. Probably because, like is the case in my country, when a leader grabs power through a military coup, and they go on to manipulate election results for the next many decades to claim legitimacy, convincing them that power belongs to the people is a tall order.
We have countries on this continent where institutions have been deliberately run down to undermine rule of law. In Uganda, it takes the president years to appoint judges to fully constitute the Supreme Court and the Court of Appeal. The country can even go for months and months without a substantive Chief Justice, deputy chief justice and Director of Public Prosecution. Judges, like any other government position, are appointed not based on merit but on how loyal one is to the ruling establishment.
When people are murdered and displaced, any voice of dissent harassed, locked up and denied rights as basic as free movement, thrown in jail on trumped-up charges, one would hope that in any country, their own systems of justice and fairness would hold the perpetrators accountable. But who represents the interests of the victims in their pursuit for justice when that country’s justice system is unwilling or unable to help them? Who finds justice for the victims of the war in Northern Uganda, Darfur in Sudan, the hundreds of women raped in DRC every week or the thousands killed in Kenya six years ago? Don’t we care at all, to end this impunity and create a better Africa for the next generation?
The ICC, ratified by 121 countries, 34 of which are African, was specifically set up to try cases of genocide, war crimes, crimes against humanity and aggression. The DRC militia leader Thomas Lubanga is the only person that has been convicted so far but the court is investigating cases in Uganda, Kenya, Mali, Libya, DRC, Sudan, Ivory Coast and Central African Republic. Looking at those countries is quite telling.
Leaving the ICC would mean violent militias could invade a sovereign country for any reason, kill and displace people, milk their resources and if the war mongers in the US are not interested, get away scot free. Terror and coups would be licenced. Imagine how the situation would change if perpetrators of impunity had no ramifications to worry about. Imagine Northern Nigeria, Sudan, CAR, Mali, and Egypt.
This fuss of Africa Rising ceases to make sense when we cannot commit ourselves to uphold basic principles of Justice and rule of law. Otherwise how can we even raise our voice to be heard on the world stage when we can’t even guarantee such to our people? Everyone has a duty to adhere to these principles; they are part of global collective responsibility and they should not be optional.
The greatest concern for many an African Leader is the impossibility of guaranteeing that tomorrow they will not be dragged through the ICC process considering the mischief they have done and continue to do to further entrench themselves in power. While personal interest of African leaders looms very large in here, this concern also speaks to the reality of global power politics that insulates leaders of major powers of the world, who undertake various military operations in various parts of the world, from ICC processes, a privilege African leaders don’t enjoy.
The ICC denied a request by AU passed in May to refer the Kenya cases back home. This was probably a wise decision considering many Kenyans don’t seem to believe in the local justice system to be shielded from the long arm of manipulation by the powers at play.
Although it was prominent on the agenda of AU's extraordinary summit, mass withdrawal of African member states of ICC was always going to be an unlikely outcome. The failure to build consensus to take a decision requiring African states to withdraw from the ICC was probably for the good.
The ICC was established to help end impunity for the perpetrators of the most serious crimes of concern to the international community. The Rome Statute that established the court provided victims with the opportunity to have their voices heard and to obtain justice for their suffering in a context where the local justice system may not guarantee this, as the case is in most African countries and elsewhere. Pulling out of the ICC would be a myopic decision that Africans would regret for generations to come. And I am not sure if African presidents should be taking such decisions on behalf of their countries considering that their representation of the true sentiments of their citizens cannot be substantiated!
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