Criminal Justice: Between AU and ICC,By Sunny Osaze

During a recent visit of President Goodluck Jonathan to Kenya, he implored African leaders to get rid of policies that are capable of obstructing intra-African trade and the unity of the continent.
At a joint press briefing with his Kenyan counterpart, Uhuru Kenyatta, he faulted those angling for the trial of President Kenyatta by the

International Criminal Court (ICC) in The Hague, saying it would further compound the political crisis in the country.
Few weeks afterward, in an address at the Extraordinary Session of African Union Heads of State and Government, in Addis Ababa, Ethiopia, President Jonathan said African nations are ‘disappointed’ with the ICC over African affairs. He therefore called for an amendment of the laws governing the International Criminal Court, ICC, to allow serving African leaders to enjoy immunity from prosecution for war crimes, genocide, and war against humanity.

Two serving African presidents, Sudan and Kenya, have been accused of war crimes by the ICC.

The president, who expressed Nigeria’s support for the existence of the ICC, said, “While the work of the International Criminal Court is immensely useful for the achievement of a world without crimes against humanity, genocide and other acts of impunity, it would be fair to say that in Africa today, the wave of democratization has engendered greater commitment to the rule of law and respect for fundamental human rights.”

The ICC has opened investigations into eight cases, all of which are in Africa including Uganda, the Democratic Republic of the Congo (DRC), Central African Republic (CAR), Darfur, Kenya, Libya, Côte d’Ivoire and Mali. Five of the eight cases were referred voluntarily by the African governments in question; two through a UNSC resolution supported by all but one African member in the council at the time and the Kenyan case was opened at the ICC prosecutor’s request.

On his own Kenyatta blasted the ICC of “bias and race-hunting as it has been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims. The court, according to him has stopped been the home of justice the day it became the toy of declining imperial powers, performing on the cue of European and American governments against the sovereignty of African states.

While urging the AU to unite in the face of a “divide and rule” policy, he said “Africa is not a third-rate territory of second-class people. We are not a project, or experiment of outsiders.”
Meanwhile, the Sudanese foreign minister said that the meeting had drawn strong support for a withdrawal from the ICC including from his own government. However, he added that while some countries expressed a readiness to pull out, they believed the time was not ripe for such a move.

There have been many opposition to the clamour from Africa itself. In the forefront is the Archbishop Desmond Tutu of South Africa who said granting such immunity would mean giving permission to African leaders to commit war crimes.

Most countries not only in Africa, have constitutions or laws that provide immunity from all kinds of prosecution while in office. While the work of the International Criminal Court is valuable for the achievement of a world without crimes against humanity, African leaders should not be targeted by the ICC but also so-called superpower leaders with UN veto-power who arbitrarily invade weaker nations. We are living witnesses to how some powerful nations annexed and terrorised poor and weaker nations with impunity, where thousands of innocent souls are killed and their leaders not only humiliated but are killed in most embarrassing carnage in modern history.

Notwithstanding the ICC’s universal jurisdiction, it devotes more energy and to the prosecution of cases from Africa, while ignoring other powerful leaders who commit worst crimes against humanity against other citizens. Even though some Africans are in the ICC, the allegation of bias is so glaring and yet it never deem it feat to allay the fears and sentiments of other nations. International organisations were created to resolve problems rather than compounding them, especially in developing countries.

The fact is that African nations under the umbrella of African Union share common principles on war crimes and crimes against humanity with ICC. African leaders should maintain the unity of the continent and speak with one voice on issues affecting any of the countries. They should intensify efforts in strengthening the capacity of national and continental judicial systems.

The meeting ended up calling on the United Nations Security Council (UNSC) to defer the trials of Bashir and Kenyatta under Article 16 of the court’s Rome Statute which allows for a delay of up to one-year subject to renewal. The African leaders also declared that no sitting African head of state should come before any international court or tribunal.

The positions of African leaders reinforce the importance of the ICC even as they didn’t withdraw. A resolution for withdrawal could have been reactionary, but a clear message has been sent that Africa desires to be treated fairly and justly not as inferior continent.

Sunny Osaze
[email protected]

No tags for this post.