To answer this, one needs to look no further than the Kenyan case circa 2014 when President Uhuru Kenyatta came out unscathed, and celebrated his acquittal with quite some level of pomp and pageantry. What has followed the dropping of his charges has been a vehement campaign by Kenya to drive Africa as far away from ICC jurispendence as is legally and politically possible. At every turn, Kenya’s foreign policy interlocutors have sought to bring up the rescission of African states, as a block out of the Rome statute. The 24th AU summit of February 2015 was no exception as Kenya lobbied for the establishment of African equivalent of the ICC, through the amendment of the Malabo Protocol to grant international criminal jurisdiction to the African Court on Human and People’s Rights. Interestingly, only 11 of 54 states got behind Kenya’s bid to amend the Malabo Protocol. Even Ugandan President Yoweri Museveni, the pied piper of anti-ICC rhetoric was silent on the Kenyan-led ICC affront. Little surprise that the most vocal proponent for the amendment was Robert Mugabe, in the seasonal capacity of chairperson of the AU.
Underneath the self-styled, anti-ICC political suasion of Kenya lies a far-reaching motivation: The malaise of African peer-shielding and culture of neopatrimonialism that flies in the face of accountability, justice and human rights norms. It is this culture that has paved way for impunity to flourish, for constitutional mandates to be ignored and for victims’ rights to be trampled on all in the name of African solutions to African problems. This culture has blighted the impressive catalogue of norms and principles that make up the AU’s security culture such as sovereign equality of members (Article 4a) ; non-intervention by member states (Article 4g); uti possidetis (Article 4b); non-use of force/peaceful settlement of disputes (Articles 4e, 4f, 4i); condemnation of unconstitutional changes of government; (Article 4p) and the Union’s right to intervene in a member state in grave circumstances (Article 4h). The tension that exists between these norms and the notion of continental solidarity at all costs may mean that these very ascriptions are doomed to remain in the realm of the aspirational.
For all that talk of an alternative to the ICC; can we really expect African leaders to deliver? The dubious state of the justice system at the national level in majority of African states does not exactly inspire confidence in the political will to tackle impunity and atrocity crimes head-on. The ICC, and by extension, the twin agendas of protection and prosecution of mass atrocity crimes are on trial in the African court of opinion, and Africa’s leadership is flailing under the burden of proof. South Africa, the self-proclaimed African champion of human rights found itself in a precarious position in the Bashir issue; balancing continental solidarity with its veiled commitment to the Rome statute. Does this mean that Kenya’s anti-ICC campaign is winning? The answer is far from simple but the fact is at the end of the day, funding is the AU’s Achilles heel, all this talk about Africanisation means little if lofty ideals cannot be backed by sustainable wherewithal.
On its part, the ICC is not merely a sitting duck. Recent developments in the situation in Kenya, particularly the decision by the Trial Chamber to use recanted testimonies of witnesses in the cases against Deputy President William Ruto and journalist Joshua Arap Sang, has once again stirred up the anti-ICC offensive with Kenya ready to challenge the legality of the decision. The ruling by the Chamber to use pre-recorded testimonies of witnesses who later pulled out of testifying is based on an amendment to Rule 68 of the Rules of Procedures and Evidence which provides for admission of previously recorded testimonies if witnesses are unable to testify; presumed dead or if there has been interference through intimidation and bribery. The amendment to Rule 68 was passed by the Assembly of State Parties (ASP) in November 2013, long after the trials of Ruto and Sang had begun, a fact that Kenya has been quick to point as illegal. Prosecutor Bensouda has remained relentless in her application arguing that the introduction of pre-recorded testimony would be the only way to ensure that the Court remains committed to fighting impunity especially in a case where there have been allegations of wide-spread interference with witnesses.
The applications by the Office of the Prosecutor for referral of Kenya to the ASP on the issue of non-cooperation; and more recently, the admission of pre-recorded testimony into evidence are signs of a quiet resilience against a portentous wave of unpopularity. So before pundits and naysayers do a jig to proclaim the ICC dead, remember that even some patients in ICU do recover; albeit miraculously. There is still room for norm entrepreneurs to advance justice for mass atrocities in Africa, of course the task is Herculean but the necessary after-care and patchwork has to be done to restore the ICC’s profile in Africa.
Faith Mabera is a researcher based at the Institute for Global Dialogue associated with UNISA, a foreign policy think-thank in Pretoria. Her research interests include the Responsibility to Protect, African diplomacy, African foreign policy and human security.