Martin Kimani, Kenya’s ambassador to the UN in Nairobi, wrote in the New York Times last month that “if the International Criminal Court had existed in the 1990s and applied the same evidentiary standards that were used to indict Kenya’s leaders in 2011, it might very well have sought to charge Nelson Mandela, FW de Klerk, and Inkatha leader Mangosuthu Buthelezi for the crimes that occurred on their watch, probably with fatal consequences for South Africa’s successful transition”.
Kimani participated soon after that in a seminar on the fraught relations between the International Criminal Court (ICC) and Africa, caused mainly by the ICC’s indictments of Kenyan leaders, President Uhuru Kenyatta and Deputy President William Ruto; and earlier, of Sudanese President Omar al-Bashir.
At that seminar, organised by the Brenthurst Foundation and the African Centre for Strategic Studies, Kenyans and others accused the Netherlands-based ICC of being “neo-colonialist” for imposing Western justice on the continent.
Others defended the ICC by saying it had at last brought a halt to the almost complete impunity in Africa for political atrocities.
Several participants proposed that Africa should develop its own courts to try the perpetrators of atrocities, to avoid ICC “neo-colonialism”.
That process has already started with the AU’s attempt to give the African Court a mandate to deal with criminal matters. But that effort seems to be bogging down in tortuous debates over what sort of crimes it might adjudicate.
Last month, though, the AU appointed a commission of inquiry, chaired by former Nigerian president Olusegun Obasanjo, to probe the human rights abuses being committed in the South Sudan civil war, which erupted on December 15.
This commission seems to be inspired by a desire to pre-empt any ICC move to prosecute anyone in South Sudan for those crimes.
And so it is being closely observed to see if it really does assume the ICC’s responsibilities in addressing the appalling atrocities that have been committed in the civil war, which began as a power struggle between President Salva Kiir and his former deputy Riek Machar, but has now degenerated into near-genocidal warfare between Kiir’s Dinka and Machar’s Nuer people.
The commission’s mandate is to seek accountability, reconciliation and healing.
It must, on the accountability side, investigate human rights violations and other abuses, establish if crimes were committed and identify perpetrators “with a view to ensuring accountability”.
It must also recommend, “accountability mechanisms” to deal with those abuses.
Will this mean trials and, if so, who will conduct them? Especially if the commission should find that Kiir and/or Machar themselves are culpable? Or will the commission instead opt for the sort of TRC-based, political process recommended by Kimani?
The presence of Ugandan academic, Mahmood Mamdani, on the commission strongly suggests the latter.
In an article in the New York Times in February, under the headline “Courts Can’t End Civil Wars”, he and Thabo Mbeki argued, like Kimani, that the political settlement in South Africa would have been impossible if the protagonists had been prosecuted.
They argued: “Mass violence is more a political than a criminal matter. Unlike criminal violence, political violence has a constituency and is driven by issues, not just perpetrators.”
Therefore it must be dealt with politically, not legally.
Mbeki, Mamdani and Kimani are no doubt right about the South African transition.
Yet it is also true that that transition was a rare moment in South African history and that justified the suspension of normal justice to enable the country to pivot from one epoch to another.
But can the same be said for every civil war in Africa, including those that recur? Is justice to be suspended forever in such warfare, allowing effective impunity for anyone who kills in the name of a “constituency” or of “issues”?
And where does that leave the faceless masses who are mostly quite innocently caught in the crossfire of such “political” violence?