Kenyan President Uhuru Kenyatta. File photo: AP

Peter Fabricius suspects it was to distract our attention from what the AU leaders actually decided in the end.

Pretoria - Have we all been hoodwinked by African leaders about their decisions on the continent’s relationship with the International Criminal Court (ICC)?

Before Saturday’s AU summit in Addis Ababa to address that difficult relationship, there was considerable speculation that AU leaders would decide that all 34 African states which are members of the ICC should walk out of the court en bloc.

That would have been in protest against the ICC for allegedly targeting Africa – because all its cases are African – and particularly for being inflexible in not allowing Kenyan President Uhuru Kenyatta and Deputy President William Ruto a postponement or at least more time off from court to govern their country while standing trial.

The South African government, in particular, seemed to be maintaining a stance of strategic ambiguity, hinting but not confirming that it might support a withdrawal.

The AU summit did not decide that African states should withdraw from the ICC. Many commentators welcomed this decision as a victory for Africa’s fight against impunity.

But was it such a great victory? Or was the threat of total withdrawal always just a red herring? Did it distract our attention from what the AU leaders actually decided in the end – that all other Africans should remain subject to ICC prosecution – while granting themselves impunity?

The leaders decided to send a contact group of five member states – including South Africa – to consult with the UN Security Council about deferring the cases against Kenyatta, Ruto and Sudanese President Omar al-Bashir and other problems the AU has with the ICC.

This consultation should happen before Kenyatta’s trial, due to begin on November 12. Ruto’s trial has already begun. The ICC charged both men for committing crimes against humanity, in orchestrating violence against their political opponents after the 2007 elections.

The AU leaders said that trying the president and deputy president of Kenya at the same time would distract them from their governmental responsibilities, including the fight against terrorism, “which could undermine the country’s sovereignty, stability and peace”.

However, AU Commission chair-woman Nkosazana Dlamini Zuma told the summit that “it is critical that we remain within the legal framework of the Rome Statute” (which governs the ICC).

Yet President Jacob Zuma is reported to have told reporters after the summit that if the UN Security Council refused to defer the case against Kenyatta, “it means he will not be able to attend the trial”.

That did not sound quite like remaining within the legal framework of the Rome Statute.

And the AU leaders also went beyond the particular cases against Bashir, Kenyatta and Ruto, to state a general principle that: “No charges shall be commenced or continued before any international court or tribunal against any serving head of state or government or anybody acting in such capacity during his/her term of office.”

At a press conference after the summit, Dlamini Zuma denied that the AU was seeking impunity for African leaders, because she said it was a principle of many states around the world, including Western ones, that the head of state could not be indicted while in office.

Whether that immunity applies to the grave offences; namely war crimes, crimes against humanity and genocide, which is why the ICC was set up to prosecute, is surely doubtful. The Rome Statute specifically precluded serving leaders from immunity because they are so often the perpetrators of such crimes.

It is also not impossible that Kenyatta and Ruto, who were on opposite sides of the 2007 election and the post-election violence, formed an alliance in this year’s election, precisely so they could use the argument that they should not stand trial at The Hague, or Kenya would be left rudderless.

However this saga of the AU versus the ICC turns out, the summit left the suspicion that African leaders were doing what they have always done, whether in the AU or in its predecessor, the OAU, and that is to close ranks to protect each other.

* Peter Fabricius is the foreign editor of Independent Newspapers.

Pretoria News