By DANN MWANGI
Over the last few years there has been concern by the African Union, the continental body for Africa and its individual members, about the role and functions of the International Criminal Court. These concerns include that the ICC is unfairly targeting African leaders and interfering with sovereignty of independent states in Africa.
Ethiopian Prime Minister Hailemariam Desalegn has stated before that ICC is targeting the African race and that instead of addressing impunity universally, the court is in ‘race hunting’.
Despite Presidents Kagame and Museveni of Rwanda and Uganda respectively who have on many occasions dismissed the court as colonial, even President Kikwete of Tanzania now seems worried about the court.
During the just concluded United Nations General Assembly, President Kikwete lamented that the ICC is having an intransigent approach to Kenyan cases and called for the court to rethink its approach towards this case.
In this regard, this relationship between the members of the AU, who form the biggest bloc of ICC’s members from one continent, and the ICC, even prompted the extraordinary meeting in Addis Ababa to discuss the current Kenyan ICC cases before the court among other issues. There has been debate at various circles, diplomatic, political and international criminal justice on whether the AU’s resolutions have any effect on the ICC’s judicial role.
There are voices of the view that AU’s resolutions against the ICC’s trial of President Kenyatta and his deputy are meaningless whereas others are optimistic that such resolutions have a bearing on the future of the ICC.
In my view, although the AU’s resolutions against the continued trials of the Kenyan cases have no direct legal effect to the case, these resolutions will have an impact on the ICC and will largely determine the success of the ICC not just in Africa, but also in the world.
In this way, the African Union puts the ICC on a very difficult path and this explains why the court has been pleading with African countries not to withdraw from the Rome Statute for the last two weeks.
The challenge that the court faces is that of either failing to heed to the AU’s call for a halt of Kenyan cases and therefore face non-co-operation from many African states or continue with the cases and face non-co-operation from many AU members.
In fact, if they continue with the cases, the threats of some AU countries pulling out of the court like the one exhibited by Kenya and Uganda might materialise. Other African countries might join the same league.
In this respect, the ICC cannot behave as if it’s delinked from politics in Africa as it was established through political diplomacy. It will lack legitimacy if African states pull out of the statute or refuse to co-operate with it.
If lack of African support for the court increases, the current ICC cases might collapse as without assistance from states, the court cannot collect evidence, access witnesses and arrest any suspects. The case facing Kenyan journalist Walter Barasa emphasises why the ICC cannot succeed without support of states, whether it has evidence to convict a suspect or not.
When the ICC prosecutor made public Barasa’s warrant of arrest, she stated how a neighbouring country refused to arrest Mr Barasa when they made the request and therefore they had to request the Kenyan government to do so.
Over the last three years, there has been a prominent example of African states not supporting the ICC in arresting President Hassan Omar el Bashir of Sudan, who is already indicted by the court.
Lack of legitimacy
Mr Bashir has travelled to African countries like Kenya, Nigeria, Chad, Malawi and Djibouti, which are members of both AU and ICC ,but have refused to arrest and hand him over to the ICC.
Above all, China, which is a permanent member of the UN Security Council and therefore has a veto power has hosted Bashir before but refused to arrest him.
In summary, there are consequences that the ICC will face if it refuses to dialogue with African countries. It will face lack of legitimacy, lack of support in Africa and therefore collapse at some time. For now, only the UN Security Council can save the court from this imminent problem by deferring the Kenyan cases.
The writer is a lawyer.