What does ‘African solutions to African problems’ mean?

The Government of Kenya has embarked on yet another push to lead African states away from the International Criminal Court (ICC). The rallying call is that Africa needs to pursue African solutions to African problems. In other words the ICC is perceived as being insensitive in how it approaches the so called African problems. But the question is what exactly are these African problems? To answer this question this blog post looks at the deliberations around the formation of the African Court of Justice and Human Rights that has the capacity to adjudicate on international criminal matters.

A proposal to establish an African Court of Justice and Human Rights (ACJHR) that has the competence to determine international criminal matters was tabled at the just concluded African Union (AU) Heads of States meeting. The proposal is contained in a document called the Malabo Protocol. Therein, the details of what would constitute international crimes are spelled out. Other the infamous crimes of genocide, crimes against humanity and war crimes, 11 other crimes have been added to the list of international crimes that the court would deal with. Among these are Terrorism, Trafficking in Persons, Piracy among others.

Another proposal that was tabled at the meeting relates to the immunity of heads of states and other ‘senior government officials’ from prosecution of international crimes. This point is particularly contentious in view of the Kenyan cases involving the Kenyan Deputy President currently going on at the Hague. The African Heads of States appeared to agree that the immunity from such prosecution was imperative for peace and security in the region. They went further to suggest that the ICC would not work in the interest of African states if it ignored peace agreements settled between warring factions if it arrested and prosecuted the leaders of these factions for international crimes during hostilities. As an example of this logic, should President Salva Kirr or Riek Machar were to be arrested and prosecuted for international crimes then it would scuttle the peace process in the country.

Funding of the ICC and the referral mechanism were also faulted as being bias. A linkage was made between funding the ICC and the cases that usually end up at the court; that those countries that fund it seldom find their citizens being prosecuted at the Hague. Further to this, there was the claim that the United Nations Security Council (UNSC) referral mechanism is unfair as 3/5 permanent members are not signatories to the Rome Statute. Further to this the composition of the UNSC is deemed not to be representative enough to include an African state as a permanent member.

All this observations are accurate but in my view they miss the point completely. First to say that the ICC is on a mission to undermine the independence of African states is spurious at best. The ICC is established by the Rome Statute which all states are welcome to sign and ratify, which is what all these African states did. In addition to this, 50% of the cases handled by the ICC were referred there by African states. Further the ICC mechanism is complementary in nature which means that states have the primary responsibility to set up courts and try international crimes in their jurisdictions. It should not be forgotten that Kenya was given such an opportunity to set up such a tribunal but failed and that is how the accused found themselves in their current situation.

Secondly, I do not think that crimes against humanity, genocide and war crimes are ‘African problems that need African solutions.’ If anything, these are serious crimes of international concern that are abhorred universally and that threaten peace and security in the world. In other words save for the elongated list of other crimes listed as international crimes and which are covered by other international treaties as transnational crimes, the Malabo Protocol does not list any new exclusively African problem that it seeks to tackle.

Thirdly, the fact that the issue of immunity was unanimously agreed on by the Heads of States is likely to do more harm to accountability in African politics than solve the so called African problems. The ACJHR is more likely to be used as hammer for opposition politicians now that the ‘Crime of Unconstitutional Change of Government’ is listed as an international crime. This line of argument is especially poignant when you interrogate the ease with which African Governments refer cases of their opponents to the ICC e.g. the Ugandan case.

In reality there no African problems here unless we would agree with our leaders that certain heinous crimes are African problems. Further, if we accept the so called African solutions, it will further aggravate impunity in Africa in name of harmony and stability. There can never be stability without accountability!

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Politics v Law: Bensouda’s Dilemma

It is often said that one can never study International Law distinctly from International Relations as the subject matter interact with each other and are affected by each other. It would be foolhardy to assume that international law is or can be practised outside its political context. The Kenyan cases provide a good example. Notwithstanding the ICC prosecutor’s, Fatou Bensouda, indignant protestation that the court is purely a legal body and does not resort to politics, the events around her cases say otherwise. This view – I think – is costing her, politically at least, and might derail the trial thus deviating from her end game: justice for the victims.

There is a Swahili saying that says “palipo na moshi, pana moto”, which translated in English means “where there is smoke, there is fire.” Over the weekend an extraordinary AU Summit session was held. The prominent agenda was the Kenyan cases at the Hague. As expected the heads of states bashed the court for being an instrument of the west. Moreover it is accused of practising selective justice skewed against African states. The session concluded that the UNSC would be petitioned to consider deferring the cases for one year, something, I have on good authority, the UNSC is considering.

So where is the fire? There must have been a trigger for the visceral attack on the ICC and the defiant tone of the Summit. I attribute this to Bensouda’s move to block Ruto’s (Kenya’s Deputy President) plea to attend only those sessions of his trial that are very important. In other words, he would have been exempt from attending all sessions of his trial freeing his time for State matters, as he argued. The recent Westgate attack just shows one how vulnerable Kenya would be if either the president or his deputy were outside the country let alone them being away at the same time.

Further, there was the bizarre argument by the prosecution that Kenya can swear in another deputy president to hold fort as the current occupant fends off serious international criminal charges. There is no provision of the law that allows for a temporary deputy president. If there is a vacancy as stipulated under the Constitution, 2010, the president is to nominate a replacement and parliament is to vet and vote on his suitability. This was Bensouda’s strike two as politically the perception of a coup d’etat was created in the fertile political minds.

Currently, there is a request pending in the court filed by President Uhuru. He seeks leave from the court to attend his trial sessions through video link, fondly called “Skype” in Kenyan political lingo. The reasons that have been advanced are the same as those advanced by his deputy: he needs to lead the nation. Thus in both the cases there are undertones of the sovereignty argument. This request may very well shape the outlook of the court either by further damaging its image among African states if it chooses to reject the request, or the opposite if it decides to grant Uhuru leave to attend court through the video link. But there is a problem.

There are three people before the court. One who is easily dwarfed in stature, and perhaps quite literally, by the other two is Joshua Sang often the forgotten suspect of the trio. In law, all persons must be treated equally before the law (principle of non-discrimination). Therefore there should be no special treatment on whatever basis. This is the point that Bensouda is making by sticking to the law and shutting her ears to the politics. However she can never ran away from it.

So what if the AU is mad? Suspects appear before the court in their individual capacity don’t they? Well, to the idealist, it is true that suspects do appear in their individual capacity but here is a novel situation. Never in the history of the ICC has it tried a sitting head of state and his deputy at the same time. The situation is quite different from trying captured war lords and retired civil servants. In my view it was ill prepared to handle the cases with respect to recognizing how the status change of the suspects would affect the administration of the cases.

Bensouda has now to decide whether to give into the prayers of the president and his deputy not to attend trials in person by not opposing their pleas before the court or stick to her adherence of the legal principle that all are equal before the law. The former would most likely quieten African leaders and could contribute to the smooth prosecution of the cases as the duo is already cooperating with the court. However it would create a precedent for such cases where all powerful suspects would request the same treatment on the basis on their position and power. The latter  will be sound in law but politically tumultuous. It may spell doom for her cases as it would embolden the pair not to cooperate with the ICC and thus justice for the victims could be in jeopardy.

ICC has the weaker hand here. It has no effective enforcement mechanism, much to the relief of state parties. It therefore means – in terms of power relations – the ICC lacks an independent power base to execute its functions. It therefore relies on the goodwill of member states to enforce its decisions; goodwill that is more often than not subservient to strategic foreign policy goals than to the protection of human rights. Thus, Bensouda may be forced to play politics in order to achieve her end game and deliver justice to all persons affected in the Kenyan cases. But as the drama unfolds, victims should seriously consider where in the world they will get the justice they thirst for.