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!

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.

Africa and the ICC: the myths, facts and politics

The African Union (AU) celebrated its golden jubilee last month. Having started as the Organization for African Unity (OAU) it subsequently changed its name to AU in 2001 but came into legal existence in 2002 through its Constitutive Act. It has the objectives of inter alia promote peace and security on the continent.

Among the rafts of issues – on peace and security – discussed at its 23rd Summit was the Kenyan cases at the International Criminal Court (ICC). The AU chair who is also the Ethiopian Prime Minister read out a communique after the session. Therein he stated that the court was engaged in a ‘racial hunt’ implying that the ICC is unfairly targeting African countries. He also said that all the situations at the court were African and that all the persons before it were consequently African. This this week’s entry looks into the myths, facts and politics (read perception) of the ICC in Africa.

Question: Are all the situations and cases (difference being that situations are country specific and cases are individual specific) at the ICC African?

Answer: YES!

There are eight situations at the ICC. These are situations in the Central African Republic, Democratic Republic of the Congo, Ivory Coast, Kenya, Mali, Libya, Sudan and Uganda. HOWEVER it would be too temerarious to make such a conclusion without ruminating on the jurisdiction of the ICC, thus caution ought to be exercised in using this fact as proof of malfeasance on the part of the court or the powerful in the international system. Many observers argue that this is living proof that the ICC is either being used as an instrument of neo-colonialism by western powers bent on implementing their policies in Africa or a tool for a rogue prosecutor with nefarious intentions for the continent. Please read on to see just how inaccurate this assessment maybe.

Question: Is the court an instrument of western powers?

Answer: NO!

There are three ways through which the ICC is seized of a matter. The first is through a referral by the concerned state itself as is the case with Central African Republic, Democratic Republic of the Congo, Mali and Uganda. The second in through a referral process by the United Nations Security Council (UNSC) as was the case in Libya and Sudan. The last one is through the prosecutor’s own motion and the examples here are Ivory Coast and Kenya.

Out of the eight only two situations were presented to the ICC through the UNSC. Accepting (rather assuming) that the UNSC is controlled by those with veto power – in as much as it has 10 other non veto wielding members – and that this is the way these western powers would use to allow the court to intervene in African affairs, I will assume (for the moment) that it is the body that is being accused of sending Africans to the Hague. However out of the five members that have the said power, only three are western European; relevance of who has veto power does not arise as it takes only one veto to torpedo an entire resolution – case in point is the Syria debacle.

Further, I examined how the UNSC voted on the two African cases. On the Sudan case, the UNSC passed in Resolution 1593 (2005) with 11 for, none against and 4 abstentions. Curiously, Algeria, Benin and the United Republic of Tanzania voted for the matter to go before the ICC citing, among other things, fighting impunity in the continent. Also equally interesting is that China and the USA abstained from taking a vote; one of which is being accused of using the court to drive is foreign policy in Africa.

The Libyan case also presents the same scenario. Interestingly the UNSC was unanimous in it Resolution 1970 (2011) to refer the situation in Libya – which was going through a bitter revolution – to the ICC. Gabon, Nigeria and South Africa supported the move, never you mind that the person they were sending to the ICC ‘gallows’ was a chief adherent, advocate and later the embodiment of Pan-Africanism. So, is it really feasible to purport that the western powers are using UNSC to hit out at unfavorable African governments?

Into the bargain, another spurious argument that is usually presented is that the African states were somehow coerced to vote the way they did. Without any cogent evidence of this claim, I would treat that as mere conjecture to justify the position that UNSC is being used by western powers. I see no evidence of sufficient probative value to safely conclude that there is a witch hunt on the part of UNSC.

Question: Is the Prosecutor unfairly targeting African states?

Answer: NO!

Again, of the eight situations in the court, only two – or 25% if you like – were initiated by the Prosecutor: Ivory Coast and Kenya. But even this is not accurate enough. In the case of Kenya, the state was given an opportunity to create a local judicial mechanism to try the post election violence cases. It failed with a section of parliamentarians – and some accused persons now before the court – joining the bandwagon of those raising the clarion call ‘don’t be vague, go to the Hague!’. It was at that point the Prosecutor decided that it was time to initiate the proceedings; Kenya – in other words – had the opportunity to avoid the Hague. Therefore it is only Ivory Coast situation that, I think, would warrant to be categorized as initiated by the Prosecutor on his own motion in the strictest sense as they never had the same opportunity Kenya had.

So? This means that half of the situations at the Hague were taken there by African Governments. Secondly, it means that African states seating at the UNSC at the time when Libya and Sudan situations were being referred consciously voted for the position. Thirdly, the cases in Kenya and Ivory Coast – and I single out Kenya – were brought about by the actions or inactions of their respective Governments.

In conclusion, I find it imperative that the ICC narrative sticks to the facts rather than fallacies and half-truths. I leave you, the reader, to convince yourself of the veracity of the arguments presented by the group that seeks to direct African public opinion in a particular direction versus the actual historical events and draw your own conclusions.