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If the Kenyan president and his deputy are innocent they should not be afraid to get their day in court, writes Horace G Campbell.
Johannesburg - This week Africa’s political leaders met in Addis Ababa to discuss whether African states should withdraw en-masse from the International Criminal Court (ICC) because of the indictment of Kenyan President Uhuru Kenyatta and Vice President William Ruto.
The extraordinary session of the AU was called to deliberate on international jurisdiction, justice and the ICC. At issue is whether the ICC has discriminated against Africans and whether the killings of more than 1 100 people in 2008 and the displacement of over half a million should be dealt with by international criminal law.
To ensure that the original reasons for the case before the ICC are not forgotten, it is urgent that the assembly of the AU remembers its mandate and foundational doctrine of non-indifference embedded in Article 4(h) of the Constitutive Act of the AU, mandating the continental body to “intervene… in respect of grave circumstances, namely: war crimes, genocide, and crimes against humanity”.
As such the special session of the AU has far more serious priorities. If Kenyatta and Ruto are innocent, then they can have their day in court and their exoneration before an international court can only convey greater political legitimacy to them.
As already stated, one aim of the AU when it was formed was to ensure that there was no impunity for those who committed crimes against humanity in Africa. If indeed it is the position of the African peoples that the ICC has discriminated against Africans, then the most urgent matter before this assembly was for Africans to build regional and national mechanisms to bring to justice those who commit crimes against humanity.
Unless the assembly could demonstrably guarantee the African peoples that the AU has genuine political will and capacity to thoroughly enforce article 4(h) of the Constitutive Act, to stem the criminal activities of desperate and selfish political leaders in Africa, any discussion about mass withdrawal from the ICC could be tantamount to self-delegitimisation.
It should be remembered that leaders such as Yoweri Museveni of Uganda, Paul Kagame of Rwanda and Isaias Afewerki of Eritrea, the three pressing the case for this special session, do not have the political legitimacy to demand that the AU withdraw from the ICC.
The referral of the 2007-2008 Kenyan post-election violence case to the ICC came not from imperialists but from the Panel of Eminent African Personalities established by the AU – with Kofi Annan as chairman and Benjamin Mkapa, former president of Tanzania, and Graca Machel, former first lady of South Africa, as members.
The ICC charges that Kenyatta and Ruto helped to fuel the violence that followed the 2007 elections. Both men have declared that they are innocent.
In the heat of this post-election struggle, imperial states such as the US and Britain wanted the matter to be put aside so that international business could continue to thrive in Kenya. Condoleezza Rice, then the US Secretary of State, flew to Kenya to ensure that western interests were given priority. The US Assistant Secretary of State for Africa, Dr Jendayi Frazer, represented Kenya as a base for the global war against terror and did not countenance any discussion about whether the election results represented the will of the people.
It was the Panel of Eminent African Personalities that was formally mandated by the AU on January 29, 2008, to mediate between President Mwai Kibaki’s Party of National Unity (PNU) and Raila Odinga’s Orange Democratic Movement (ODM); the panel was charged with finding a peaceful solution to the crisis.
One important outcome of the panel’s work was the referral of the cases of those behind the violence to the ICC. There had been a demand for the courts in Kenya to investigate the authors of the crimes but six years after this violence only 19 homicide cases have been brought before the Kenyan judiciary.
In May, Africa celebrated 50 years of unity. While the plan of the assembly of the AU was to prioritise the next 50 years (Africa 2063) during the deliberations, the agenda of the meeting was hijacked by the energetic efforts of the political leadership of Kenya and their allies to discuss the matter of the cases of Kenyatta and Ruto before the ICC.
Museveni had been as aggressive as the Kenyan leadership in placing the matter of the ICC before the AU assembly. At the end of the May 25 summit the AU chairman, Ethiopia’s Prime Minister Hailemariam Desalegn, charged that 99 percent of those indicted by the ICC were from Africa, which left the body in no doubt that the international court’s prosecutors were intentionally targeting Africans.
Desalegn stated: “The African leaders have to come to a consensus that the process the ICC is conducting in Africa has a flaw. The intention was to avoid any kind of impunity, but now the process has degenerated into some kind of race hunting. We object to that.”
The debate on the ICC intensified within the corridors of power in Africa, with those opposed to the ICC trials couching their opposition in anti-imperial discourse.
The AU’s final decision and the summit proceedings reflected the line of the conservative media in Kenya. As noted by one analyst, the Kenyan conservative media view adopted by the AU holds that: “The ICC is a tool of Western powers that targets and discriminates against the continent; undermines African efforts to solve its problems, especially finding peace and reconciliation in post-conflict situations; and is shot through with double-standards, focusing its firepower only on African countries such as Sudan, Kenya and Libya but not on Iraq or the Gaza.”
Both Museveni and Desalegn carried the same arguments to the General Assembly of the UN last month when they lobbied for the UN Security Council to call on the ICC to drop the case.
It is clear that in the current diplomatic overtures to drop the case against Kenyatta and Ruto, there are many who have forgotten the origins and enormity of the case and seemingly ignored the fact that its referral to the ICC was made by a panel of Africans mandated by the AU and acting in tandem with the non-indifference doctrine of AU’s founding document.
Against this backdrop, the AU could be projecting a posture of confusion, self-triangulation and self-delegitimisation if it allows its platform to be used for mass withdrawal from the court by some African leaders, without first investing in workable structures that can impartially and decisively bring to justice powerful perpetrators of crimes against humanity on the continent.
It was in the middle of the intense diplomatic activities by Museveni, who was campaigning for Kenya to boycott the ICC, when the Westgate bombings took place on September 21.
International sympathy for the Kenyan people and leaders heightened until it was revealed by the country’s media that the Kenyan intelligence and military had forewarnings of the bombing. This information created even more disquiet as there were now questions from far and wide about the nature of the attack.
While mourning, concerned Kenyan citizens are now posing important questions: Why did it take so long for the Kenyan military and security forces to respond to the attack?
Why was it that certain people were warned to stay away from the mall on that particular day?
Koigi Wamwere, a long-time activist from the peace and justice wing of Kenyan society, stated in an op-ed article that “someone should take political responsibility for Westgate”.
He wrote: “Amazingly, instead of accepting blame and responsibility for this tragedy, President Uhuru, Deputy President Ruto and their government are positioning themselves to reap political capital and professional gain from their own failure.”
If the current leaders of Kenya were not seeking to reap political capital from this tragedy, then they should have joined the rest of Africa in calling for the cancellation of the AU special session to discuss the case before the ICC. Presently, the situation in Kenya is too delicate for the matters of killings, bombings and extra-judicial violence to be brushed aside.
Last week, Muslim cleric Ibrahim “Rogo” Omar and three others were shot dead in Mombasa as they drove home at night after preaching.
The next day, after prayers, there were eruptions in Mombasa as passions over the killings spilled out into the streets. Four people were killed during clashes between police and those angered at the killing of a Muslim cleric. Seven people were also wounded during the disturbances, while a church was set alight.
One other Muslim cleric rightly called for an end to the extra-judicial killings on the streets of Kenya. Abubaker Shariff Ahmed, known as Makaburi, said the police were behind the killings of Omar and the others. “They should tell us the truth about Westgate, not kill innocent Muslims in Mombasa,” he told reporters at the scene of the wrecked car.
It was in the midst of this instability in Kenya that both Richard Dowden of the Royal Africa Society of the UK and Jendayi Frazer waded into the debate about Kenya and the ICC.
Dowden, in his article “Kenya after Westgate: more trouble ahead”, pointed out that there was more trouble ahead for Kenya and that the west should rally behind the country’s political leaders. Without a whisper of the machinations of the British government in Somalia and the efforts to corner contracts for the exploration of oil, Dowden warned that there would be “more attacks like Westgate in Africa, spreading to countries on the southern border of the Sahara”.
He concluded that the attack on Westgate was the beginning of the end of the ICC and the case against Kenyatta.
“Western governments will need a stable, strong government in Kenya. There is no way the West is going to allow President Kenyatta, who has shown good leadership qualities during the crisis (and his vice-president William Ruto), to spend months at a trial in The Hague and then go to jail,” said Dowden.
Frazer, who had worked closely with Condoleezza Rice to ensure that Mwai Kibaki remained President in 2008, has also written that the West now needs Kenya as a partner in the fight against terror.
Writing in the pro-government newspaper in Kenya, the Daily Nation, Frazer argued that “attack will draw West, Kenya closer”. The key points of her argument were that: “It is now time for the West to fully embrace Kenya’s new democratically elected government and respect its institutions.
“Put more plainly, the ICC cases against President Kenyatta and Deputy President Ruto have become a distraction reflected clearly by the need to suspend Ruto’s trial for a week to allow his return home to attend to the Westgate crisis.”
Frazer represented the conservative Republican administration as a diplomat. It is questionable that the very conservative wing of the US political establishment is now coming to the defence of Kenyatta and Ruto.
The US is not a signatory to the Rome statutes, yet the conservatives are calling for Africans to forget the crimes committed in January 2008 in order for Kenyatta and Ruto to focus on the global war against terror.
The defence of Kenyatta and Ruto by Frazer and Dowden has complicated the two Kenyan leaders’ strategy of presenting themselves as anti-imperialists. When the AU meet this week to discuss the case for mass withdrawal, African leaders should bear in mind that it was the activism of the Caribbean and African states that brought the ICC into fruition. It will be important for the AU to join with the Kenyans to support the commission of inquiry into the Westgate bombings.
I share the opinion of Pan Africanists who believe that if Kenyatta and Ruto are innocent they should not be afraid to get their day in court.
The AU should be working hard to ensure that there is no impunity in Africa. Other organs such as the African Parliament and the Economic, Social and Cultural Council of the AU need to engage in this discussion about impunity in Africa.
* Horace G Campbell, a veteran Pan Africanist, is a visiting professor in the School of International Relations, Tsinghua University, Beijing. He is the author of Global Nato and the Catastrophic Failure in Libya: Lessons for Africa in the Forging of African Unity, Monthly Review Press, New York 2013.
** The views expressed here are not necessarily those of Independent Newspapers.