Race hunting claim against the ICC process smacks of twisted narrative

By Makau Mutua

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The Hague-based International Criminal Court (ICC) appeared to be doing just fine until 2011 when it laid its hands on six Kenyans, among them then Deputy Prime Minister Uhuru Kenyatta, Amb Francis Muthaura and Eldoret North MP William Ruto.

But it was the former two that truly riled the regime of former President Kibaki. The president moved heaven and earth to stop the ICC juggernaut, but to no avail.

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Then Kenyatta and Ruto were in March elected President and Deputy President respectively. Since then, the Kenyan state has mounted an unprecedented campaign against the ICC.

The Kenyan-driven movement against the ICC, whose conveyer-belt is the African Union, is that the ICC is hunting down Africans.

But let’s peel this onion.

The language of “hunting” a certain race, or people, because of their identity is deeply evocative and disturbing. It conjures up images that haunt the human conscience. You think of the hunter – rifle in hand – running after and firing at a hapless animal.

Only the “animal” in the case of the ICC is supposedly a black-skinned African. But that’s not all. The hunter is white. That narrative – which has defined Africa’s encounter with the white West since the Trans-Atlantic slave trade in Africans – is the most wounding racial story of modern history.

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It packages blacks as the genetic sub-humans to whites. One race is the “master” of the universe, the other the “servant”.

I’ve extensively explored this narrative in my scholarship on international law and human rights. My 2002 book – Human Rights: A Political and Cultural Critique – focused on a trilogy I termed “savages, victims, and saviours: the metaphor of human rights”.

I argued that traditional human rights norms – and the human rights movement – could be subverted and abused as a crusade of the “West” against the “Rest”. By the Rest, I meant the non-European Global South. I contended that the only way to globalise human rights was to multi-culturalise them by recognising that every culture has its wisdom.

Otherwise, I argued, human rights would be illegitimate if they were simply a “gift” of the West to the “savages” of the Rest.

My point has been that human rights shouldn’t be a project of whites as the saviours of black, brown and yellow victims from their fellow savages.

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But I have also argued – and this is equally important – that human rights properly understood and constructed are a form of a “higher human intelligence”. This is to say that human rights norms stand between the tyranny of the state and the liberty of the individual.

Despots and kleptocrats who want to subjugate their own people shouldn’t misappropriate my attack on the normative Eurocentric origins of human rights. In other words, dictators shouldn’t attack human rights as “alien” and “Western” concepts because they want to keep their people in chains.

This brings me back to the crusade by the Kenyan state and the AU against the ICC. It is true that all the eight cases before the court are African. But that fact alone isn’t sufficient to discredit the court as racist, or to depict it as hunting Africans. Four of those cases were referred to the court by African states themselves (DRC, CAR, Uganda and Mali).

Two were referred to the court by the UN Security Council (Sudan and Libya). Two others (Kenya and Ivory Coast) were initiated by the ICC Chief Prosecutor proprio motu – or by his own volition. The Kenyan cases only went to the ICC because the political class was unwilling to try them locally.

Let me underscore this point. Of the court’s 122 state parties, 34 – the largest single bloc – are African. The ICC Chief Prosecutor Fatou Bensouda is an African woman. Her competence and fair mind as a lawyer are beyond reproach.

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She is universally revered and respected. Should the ICC investigate cases elsewhere? Without a doubt, Yes. I think Syria and Afghanistan quickly come to mind.

But the fact that you’ve caught two suspects doesn’t mean you shouldn’t try them simply because the third isn’t in custody. The ICC would be better advised to widen its net beyond Africa, but that doesn’t mean Africans should be immune from its jurisdiction. Nor does it mean egregious African violators and suspects should go scot-free.

I end where I started. Africa didn’t really get worked up until elite Kenyans were nabbed by the ICC.

The AU had made mealy-mouthed noises when President Omar Bashir of Sudan was indicted for war crimes, genocide and crimes against humanity. Even little children knew that Darfur had become Africa’s killing fields.

The AU rallied to Uhuru’s side, but it ultimately failed to stop the cases against him and Ruto. That’s why my crystal ball tells me the ICC will hear the Kenyan cases to their logical conclusion.

Writer is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC.

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Uhuru Kenyatta Francis Muthaura William Ruto