By Peter Opiyo

Election of South Africa’s Home Affairs minister Mrs Nkosazama Dlamini-Zuma to chair African Union (AU) commission might have serious implications on Kenya’s effort to stop The Hague trials.

The election does not, however, eclipse the other good news for Kenya: that its citizen, Mr Erastus Mwencha, was re-elected to deputise Dlamini-Zuma.

Kenya has been using the AU as a platform to have the trials against four of its citizens postponed or referred to an African court.

So far African leaders are trying to make sure that the African Court of Justice and Human Rights has the capacity to try international crimes, which hitherto have been the domain of International Criminal Court.

Dlamini-Zuma, who made history by being the first woman to clinch the position after trouncing the immediate former Chairman Jean Ping from Gabon by 37 votes, will now head the organisation for the next five years.

Her election is bound to unsettle the Government as well as the ICC suspects because Kenya had sought the deferral of the cases and has been relying on Ping to marshal support for this cause.

Ping was instrumental in pushing for the pulling out of African countries from the ICC as well as having the cases against the key suspects deferred.

Three months ago the AU, under Ping, wrote to the UN Security Council asking for the trials to be deferred in a letter that was delivered to UN Secretary General Ban Ki-moon through the AU representative at the UN.

On the other hand, South Africa is a strong defender of the ICC and the election of Dlamini-Zuma means the AU is unlikely to entertain any opposition to the UN court, unless of course the African leaders have their way.

It is believed it was due to South Africa’s stance on ICC, which was revealed when SA threatened to arrest Sudanese President Omar al-Bashir if dared were step on her soil, that Kenya objected to Dlamini-Zuma’s candidature.

Though Kenya’s Foreign Affairs ministry argued that Dlamini-Zuma’s candidature would jeopardise the position of Deputy Chairman, it is clear that Kenya’s desperation to rally Africa against ICC formed the objection of Dlamini-Zuma’s candidature.

Imenti Central MP, Gitobu Imanyara dismissed the argument saying member states of the South African Development Community (SADC) had indicated they had no problem with Mwencha’s position.

South Africa, one of the 10 non-permanent members of the UN Security Council, has been rallying African governments to embrace competitive democracy and the rule of law and to uphold human rights and good governance. The international community linked Kenya’s post-election violence to the absence of these principles.

The University of Nairobi International Relations lecturer, Mr Patrick Maluki argues that Kenya would find it difficult to push its ICC agenda given that South Africa is keen on observing international law.

“South Africa will push for respect of international law and Kenya might have a difficult situation with regard to the ICC,” said Mr Maluki.

too soon to celebrate

An expert in international law, Mr David Ojwang’ argues that Kenya’s push has been dealt a blow but warned that it is too soon to celebrate as Heads of States still hold sway in AU.

“On paper it appears that the merchants of impunity have been dealt a blow, but it is still too soon to celebrate because Heads of States still hold sway in AU,” argues Mr Ojwang in reference to cases of international crimes, and not necessarily the Kenyan cases.

Mr Ojwang’ also says the fact that Dlamini-Zuma won the confidence of the AU, might also mean that South Africa may have climbed down on her position regarding ICC.

But he says, regardless of what the AU does, it cannot affect proceedings at ICC. “Whatever happens at the AU cannot affect the proceedings at ICC, and even if it forms its own court, such a court can only try future cases, not the current ones,” says Mr Ojwang.’

Imanyara hailed the election of Dlamini-Zuma, saying it would frustrate Kenya’s effort to subvert the ICC process. In January last year, Kenya secured the support of the AU Commission in its bid to have the ICC defer the case against the four and have them tried locally. At the time Ping endorsed Kenya’s request, saying it was within the realm of the rights of all ICC member states.

This was preceded by Kenya’s shuttle diplomacy spearheaded by Vice-President Kalonzo Musyoka, to rally African countries to back Kenya’s request.