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!