By Sandile Lukhele
In Brief: Kenya’s ruling party seeks to protect its leadership from prosecution against crimes against humanity by dropping out of the International Criminal Court (ICC). As African leaders war against the only international tribunal that can hold them accountable, the African people are left defenceless.
Kenya’s parliament, the National Assembly, in mid-November 2015 received a bill that, when passed, will repeal the International Crimes Act 2008 which incorporates into Kenyan law the Rome Statute that created the International Criminal Court (ICC). When passed, the new bill that nullifies the older law will enjoy the support of the ruling-National Alliance Party (NAP), whose leader, President Uhuru Kenyatta, was indicted by the ICC and stood trial in 2014 for crimes against humanity. The case was dropped in December 2014 when the ICC prosecution said that it could not proceed without evidence that originated in Kenya but was not forthcoming. Kenyatta’s minions ensured that the evidence never reached The Hague to be used in their boss’ trial. The new legislation removing Kenya from the Rome Statute will absolve government from even pretending to cooperate with the ICC.
Photo courtesy Make it Kenya/Stuart Price/Flickr
The National Assembly originally proposed that Kenya drop out of the ICC in 2010, when six senior politicians were outed for inciting post-election violence in 2007 – including Kenyatta, who was finance minister at the time. MPs wish to protect their party leader from facing further accountability should evidence find its way to court that Kenyatta orchestrated the violence following a conflicted election in 2007, in which some 1,200 killings took place. To safeguard Kenyatta from future prosecution, MPs are at work severing ties with the only judicial body that can bring justice to the 2007 victims and to any who might fall victim to Kenyan authorities in future.
Kenya will become the first country in the world to drop out of the ICC when the legislation retracting its earlier participation is passed. There are some technical questions falling under international law as to whether Kenya may in fact disregard its earlier commitment to the ICC, which was intended to be binding. However, this is a moot point if Kenya simply refuses to cooperate with the court. Such refusal may have consequences. Kenya is a beneficiary of services from a variety of UN agencies, and UN aid, technical support and other benefits from UN agencies may be compromised. However, the ICC matter as being handled by Kenya’s ruling party, is political and divorced from the reality of the welfare of the Kenyan people. As the African Union (AU) and regional state bodies repeatedly show by their actions, the privileges and protection of national leaders are of paramount importance.
This article is extracted from the December 2015 edition of IOA’s Africa Conflict Monitor (ACM). The essential +80 page monthly report that dissects conflict developments and trends across the African continent to guide businesses, governments, academics and other stakeholders in Africa’s growth and stability.
Current ACM subscribers include AFGRI, AngloAmerican, BP, CNN International, eNCA, Halliburton, IBM, KPMG, MSF, various international government departments and major universities around the globe, ranging from UCT here in South Africa to MIT in Boston, USA.
Conflict between the ICC and Kenya was inevitable from the time that Kenyatta became the first sitting head of state to go on trial at The Hague. Other African heads of state were aghast, and Zimbabwe’s President Robert Mugabe castigated Kenyatta for cooperating with the court. Nevertheless, Kenyatta did go to the Netherlands to stand trial, and put up a spirited defence when he appeared before the court in October 2014. The crux of the case against him was that Kenyatta organised and funded a group, the Mungiki, to carry out violence intended to sow further confusion and fear as charges of fraud swirled about the December 2007 elections. Mwai Kibaki, the presidential candidate of Kenyatta’s party, was the eventual winner of the elections. When Kibaki formed a Grand Coalition Government in 2008, he appointed Kenyatta as Minister of Local Government and later as Minister of Finance. Kenyatta won the presidency on his own in 2013.
At his ICC trial, Kenyatta denied any involvement with the Mungiki, a connection that prosecutors could not prove positively without confirming evidence that was not forthcoming from Kenya. While testifying, Kenyatta further blamed the opposition for fanning the passion of their members by declaring Kibaki’s victory fraudulent, thus inciting violence. By thus asserting that in his opinion firing up supporters to the point that they commit violence is an offence that should be prosecuted, Kenyatta inadvertently supported the prosecution of his political allies who were separately on trial at The Hague. Among them are radio presenter Joshua Sang, along with Deputy President William Ruto, who is currently on trial for murder, forcible deportation or transfer or populations, and persecution. Through his broadcasts, Sang allegedly “induced or solicited the commission of crimes against humanity” by calling for violence against opponents of Kenyatta’s party. Some 600,000 Kenyans were internally displaced by the extraordinary violence that followed Sang’s inflammatory broadcasts, for which, by Kenyatta’s reasoning, he should be found guilty.
The National Assembly cannot simply state, without giving a reason, that Kenya is withdrawing from the ICC, both from the Rome Statute and future cooperation with prosecutions. One reason was found, however. Drafters of the bill that aims to sever Kenya’s relation with the ICC are presenting as their cause the ICC’s Rule 68, which allows the court to enter into evidence testimony that has been recanted by witnesses. Rule 68 was put in place to ensure that witnesses who testify are not later intimidated into recanting their testimonies. Kenya’s MPs, led by National Assembly Majority Leader Aden Duale, are taking the position that any recanting could only be made because a witness may have made an honest mistake or had a sudden clarity of memory. This position is risible given the thorough vetting that witnesses at ICC trials receive and the courage witnesses must possess to testify in the first place. Nevertheless, some excuse was required for Kenya to wiggle out of the Rome Statute, and Rule 68 was as good as any. On 28 November, the ICC rejected the Kenyan government’s submission that Rule 68 not be applied at Ruto and Sang’s trial, further infuriating Kenyatta’s political machine.
Kenya, like the African Union (AU), puts political expediency above international law
It is possible that South Africa may get ahead of Kenya to be the first country to withdraw its signature from the Rome Statute. By so doing, South Africa may also sacrifice its relationship with international bodies like the UN, on whose Security Council the country has been vociferously attempting to sit as a permanent member. Pretoria’s argument against the ICC echoes that of the AU – that the ICC prosecutes African defendants to the near exclusion of defendants from other continents. African leaders decry the court as a lackey of Western imperial powers; a neo-colonial organisation targeting their continent, as Zimbabwe’s President Mugabe described the body.
The catalyst for South Africa’s decision in October 2015 to notify the ICC that the country is taking its first step to dissolve their relationship was the visit by Sudan’s dictator, Omar al-Bashir, to South Africa in June 2015. Bashir is under indictment for genocide and war crimes but has dodged the ICC for years. South Africa abetted this fugitive by hosting him with VIP treatment at an AU summit in Johannesburg. The ICC sent Pretoria a reminder that South Africa is required as a signatory to the Rome Accord to turn Bashir over for prosecution; a position affirmed by a South African court. The government of Jacob Zuma ignored both courts, while arguing that South African law takes precedence over its international commitments. In terms of domestic law, South Africa must ensure safe passage to any head of state attending an international function like the AU confab, Zuma’s people said. The South African High Court disagreed, but its ruling was moot because by that time Zuma had secretly whisked his brother in the AU leadership club, Bashir, out of the country.
The argument put forth by the AU and Zuma’s government that the ICC is anti-Africa and must thus be boycotted by Africa is a wilful dismissal of the facts well known to the AU leadership: that the ICC only prosecutes cases where the local judiciary cannot or will not prosecute a suspect who should be put on trial for the most grievous of crimes, like genocide. No Sudanese court under Bashir would dare put him on trial. Meanwhile, national courts from Italy to Mexico are proving able and willing to prosecute government leaders on corruption and other charges. Their peoples do not need the ICC. Further, almost all the cases against Africans at the ICC were referred to the court by African countries themselves, who feel they lack the capacity to mount the technical and expensive prosecutions required to pursue such charges as crimes against humanity.
This article is extracted from the December 2015 edition of IOA’s Africa Conflict Monitor (ACM). The essential +80 page monthly report that dissects conflict developments and trends across the African continent to guide businesses, governments, academics and other stakeholders in Africa’s growth and stability.
Current ACM subscribers include AFGRI, AngloAmerican, BP, CNN International, eNCA, Halliburton, IBM, KPMG, MSF, various international government departments and major universities around the globe, ranging from UCT here in South Africa to MIT in Boston, USA.
African victims of government crimes are potentially defenceless against their leaders
Kenya and South Africa may be the cutting edge of a massive movement of AU nations to jettison their ICC membership and responsibilities. Conversely, the governments may be pressured by international organisations and other governments in the West or Asia to stick to their Rome Statute commitments. Lost in the smokescreen thrown up by the AU critics of the ICC is the matter of justice for the African people. African political institutions tend to favour leadership over their peoples, so much so that the country’s leader and the country itself are considered synonymous. Listening to the Zimbabwe government, their belief is clear that an attack against Robert Mugabe is an attack against all of Zimbabwe. By this argument, the indictment against Kenyatta and his cronies was an indictment against all Kenyans, even though the prosecution sought justice for the 1,200 people who lost their lives and the 600,000 people left homeless allegedly at the hands of the defendants.
There is no African Court. A process that could have held leaders accountable within the 15 states belonging to the Southern African Development Community (SADC) was jettisoned by SADC leaders. The SADC Big Boys club agreed to Mugabe’s demand that the court be dissolved following a 2001 court verdict that he illegally evicted white farmers from their lands. The AU attack against the ICC is all about politics and not at all about justice. Bashir and Kenyatta, with the support of the AU leadership are playing the role of victims of anti-African Western imperialism. Meanwhile, the true victims who have lost lives, livelihoods and loved ones are in danger of never obtaining justice.
Notes:
(1) Sandile Lukhele is an analyst for ACM and author of political and social commentary for African and international publications.