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Today meeting in an extraordinary session of the African Union (AU) Assembly, leaders of AU member states discussed on the future of Africa’s relationship with the International Criminal Court (ICC). While there is little doubt that this issue is important for Africa, it is very debatable if it was the most urgent of the issues facing the continent to warrant an extraordinary meeting. But this might be asking too much from the leadership of the countries of the continent. What is troubling is the failure to make the best out of the agenda they chose.

This mark of the trouble with the current leadership was on display from the main focus of the outcome of the just concluded extraordinary summit.

The motivations for the extraordinary summit

I have no doubt that the issue of the relationship of Africa with ICC is one that deserves robust discussion and debate by Africans. If it is framed appropriately and directed to rectifying various deficits of the ICC system, it would be huge service for both Africa’s quest to end impunity and the international legal order broadly.

These issues of huge public interest are not the factors that informed the decision for calling the extraordinary session. What prompted African governments to assemble for an extraordinary session in Addis Ababa and cause a huge amount of strain (with traffic blockage and excessive security) on the residents of the city are two main motivations.

The first of these is bailing the leaders of Kenya currently on trial in the Hague by the ICC. The extraordinary summit was called upon the request of Kenya. According to the Rules of Procedure of the Assembly, the support of two-thirds majority of AU member states is required for calling an extra-ordinary session. It was reported that the new Kenyan government lobbied countries of the continent to support its bid for the summit. It received very solid support particularly from the Eastern Africa region to which Kenya is a member and its call for the extraordinary meeting also received the required majority support of AU member states.

Kenya campaigned aggressively for this summit to use the AU platform to mobilize against ICC and significantly to secure African wide support for their bid to doge the ICC process. President Uhuru Kenyata and Vice President William Ruto are using all the tricks in the book to have their case in ICC frustrated, politicized, and eventually collapsed. Most immediately, they wish to be relieved of the need for attending all the proceedings of their trials in the Hague. Without such relief, they would face serious problem of discharging their responsibilities of providing Kenya effective leadership.

The government of Kenya of course formulated the debate in terms of national reconciliation and the constitutional reform undertaken in Kenya. In an opening speech to the summit, the Chairperson of the AU Assembly Ethiopian Prime Minster Hailemariam Desalegn said that in the light of the various institutional reforms under the constitution and the change of government through democratic election, opportunity should be given for national reconciliation.

Unfortunately, the withdrawal of scores of witnesses from the ICC cases, the continuing plight of people displaced from the violence and the lack of any meaningful process to deliver justice for the more than 1300 people who lost their lives mean that the Kenyan government has very little to show by way of concrete efforts for national reconciliation and delivering justice for the post-election violence. If anything all its failures to protect witnesses from intimidation and bribing show that there is very little interest for establishing accountability for what happened in 2007/2008.

The above notwithstanding, their peers from other African countries did not let them down. They obliged and did so very happily. The main motivation for other African leaders in supporting the extraordinary summit is of course self-interest. There is no guarantee that ICC would not come after other African leaders and many of them could not be sure that next time it would be him/her ( although as things stand now a leader of an African state, as in many parts of the world, is a he).

Self-interest was accordingly the second motivation behind the summit.

The extraordinary summit as a form of Elite solidarity

That self-interest was the motivation behind the support of African leaders for Kenya’s bid is now born out by the major decisions they adopted at the summit. In a major decision, African leaders now wish to reverse the course of international law and relieve serving  heads of state and government from prosecution for ICC crimes. Be it under the Rome Statute or under international criminal law broadly speaking, the issue of immunity of heads of state has been put to rest.

The decision on UN Security Council (UNSC) deferral is equally baffling. First, UNSC deferral under Article 16 of the Rome Statute does not end the cases. It would only lead to suspension of an ongoing investigation or prosecution. Second, UNSC can exercise its authority under Article 16 only after determining that continuing with the prosecution constitutes a threat to international peace and security within the framework of Chapter VII of the UN Charter. Looking at the cases against Uhuru and Ruto, there is very little evidence to suggest that their trial would lead to such a threat to international peace and security within the framework of the UN Charter. This is despite the tragic terrorist attack on Westgate Mall on 21 September 2013.

As far as Uhuru and Ruto is concerned what is at stake in the short term is their ability to discharge their responsibilities as leaders of the newly elected government of Kenya. It has now become clear that their trial in the Hague would interfere with their responsibilities in the day to day running of their government.

While one can sympathize with the undesirable consequences of this on Kenya and Kenyans, as to the duo it is something that they got into fully aware of the difficulties they would run into. It may be recalled that during the televised debate for the March 2013 general elections, asked on the challenges that his impending trial in the Hague would pose should he be elected as President Uhuru said that every person has personal issues and he considered the trial in the Hague as a personal issue that would not interfere with his abilities to serve as President of Kenya.

Perverting ‘African solutions to African problems’

The exclusive focus of both decisions on immunity of serving leaders and UNSC deferral of the trial of current leaders sought by ICC is on insulating leaders from ICC processes. This is a clear case of the AU serving as a forum of elite solidarity, along the lines of the description of its predecessor the Organization of African Unity as a club of dictators.

In reducing the issue of Africa’s relationship with ICC to elite interests and political expediency, they betrayed the wider interests of Africa, the achievement of a system of international criminal justice that accords enough opportunity for societies in transition to debate and formulate processes of justice and reconciliation without compromising accountability for serious crimes. In so doing, they both misused and perverted the political ideal of ‘African solutions to African problems’.

In their preoccupation with expediency and self-protection and their lack of foresight and ideological conviction for the interest of Africans, our leaders might have utterly failed to appropriately use the summit for proposing workable recommendations for rectifying the drawbacks in the existing system of the ICC. They might have failed to put Africa’s relations with the court on a more solid ground whereby ICC would be used to fill in the impunity gap that may arise due to failure to address issues of justice for serious crimes nationally and afford victims an opportunity that they could not otherwise get, albeit in very limited sense.

This manifest failure of the leaders betrays the fundamental trouble of the majority of African leaders. This trouble with the African leadership, to use from Frantz Fanon’s Towards the African Revolution, the absence of ideology. Hence, the current leadership is mainly characterized in terms of being self-serving, short-termist and lacking in identifying with the interests of the masses.

This is further demonstrated by their deafening silence to the tragic incidents involving the  capsizing of two boats carrying African migrants and the resultant large scale deaths in a very short span of time. How can one explain that the summit was not used to draw attention to the plight of Africans who risked their lives to run from hardship and lack of prospect for success?

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