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Uhuru’s remarks on ICC unfortunate and careless

By Makau Mutua | Updated Sun, November 27th 2016 at 10:45 GMT +3

Jubilee’s Uhuru Kenyatta recently christened the International Criminal Court a “funny court.” Everyone knows that there’s no love lost between Mr Kenyatta and the ICC. He was in the court’s crosshairs for years — before and after he became a tenant at State House — for charges of crimes against humanity. Nor is there any doubt that The Hague court gave him sleepless nights.

Mr Kenyatta spent the first several years of his administration trying to defeat the charges against him. The court also had a vice grip on his numero dos William Ruto. We may never know how much taxpayer funds were expended to frustrate the ICC cases. Let’s interrogate Mr Kenyatta’s strange claim that the ICC is a “funny court.”

Let me at the outset stipulate to several facts. First, no court — including the ICC — is perfect. If you doubt me, look at courts in Kenya. Even the US Supreme Court, regarded as one of the most credible institutions, has handed down some very awful decisions. Second, international criminal tribunals are hobbled by many factors not least of which is the lack of its own “muscle” to carry out its mandate.

Third, like most courts, including national ones, the ICC has trouble bringing to account powerful perpetrators such as heads of state or suspects of powerful states in the Global North. Fourth, the Statute of the ICC has normative and institutional weaknesses. Lastly, the first prosecutor was a showman.

But that’s not all. The ICC is a victim of geopolitics and hypocrisy. For instance, the loudest charge by African states — not to be confused with the African people or victims — is that the ICC is “race-hunting” Africans. This charge conjures up the macabre picture of African-Americans hanging by the noose in the Deep South of the United States. The ICC is being equated with the Ku Klux Klan.

But nothing could be further from the truth. African civil societies and states were the most enthusiastic supporters of the ICC. Rarely has an international governance institution been such a baby of Africans. Au contraire, it was the US and other big powers that opposed the ICC. So, what’s going on?

Free me so that I can tell the truth, and nothing but the whole truth. The charge that the ICC is targeting Africans is spurious and weak. Only two African cases at the ICC were started by the prosecutor. The majority were referred to the court by African states themselves. Several have come from the UN Security Council.

The prosecutor is investigating a number of situations outside Africa. While it’s true the majority of cases are African, no one can say those charged weren’t credible suspects. But I do not dispute the ICC should investigate more cases outside Africa. African victims must find justice outside Africa if they can’t get it at home. We can’t gainsay this truth.

The problem that the AU — largely a club of dictators — has with the ICC isn’t that the court is targeting Africans unfairly. No — it’s that the ICC is going after sitting heads of state. In fact, the AU wants the ICC Statute amended to give heads of state immunity, or impunity. Uganda, a vociferous opponent of the ICC, has had no compunction referring the LRA’s Joseph Kony and Dominic Ongwen to the ICC. Nor does it have trouble with the ICC trying former heads of state like Cote d’Iviore’s Laurent Gbagbo. But touching a sitting leader like Sudan Omar Al-Bashir or Kenya’s Kenyatta is a no-no. African states will stop their crusade against the ICC if it gives their leaders immunity.

The ICC is caught between a rock and hard place. It was forced by the AU — with the support of the West — to relax the rules on heads of state. But that didn’t placate the AU. Now there’s a threat Africa’s 34 states parties to the ICC could exit en masse.

Burundi, now ruled by the illegitimate Pierre Nkurunziza, has already resolved to pull out. Gambia is on the way out. South Africa, once a stalwart of the court, is exiting. Under the disgraced Jacob Zuma South Africa has become a total banana republic. Once a beacon, South Africa is now in the “basket of deplorables.” Others will follow. So much for the Age of African Renaissance.

Back to Mr Kenyatta’s “funny court” quip. Given the resources that Mr Kenyatta and the state poured into defeating the ICC, I think the offhanded remark is a great pity.

The ICC is domesticated in Kenyan law. The occupant of State House shouldn’t show open contempt for the courts and the rule of law. But I won’t hold my breath if Kenya joins the “basket of deplorables” and leaves the ICC. That’s a decision a future government will be sure to reverse.

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