In this article, our Co-editor, Sarah-Jane Cooper-Knock, looks at the relationship between the African Union and the International Criminal Court in the light of Kenya’s ongoing case. She highlights the importance of South African support for the ICC and asks whether this support could be waning in the run-up to the AU meeting next month.
‘Running a company and running a country are two different things ‘. This was the justification Jacob Zuma offered when asked why Uhuru Kenyatta and William Ruto should be allowed to concentrate on their posts as President and Deputy President of Kenya, rather than attend their on-going trials at the International Criminal Court (the ICC). Previously, the pair had promised to keep up a cross-continental commute to hear their cases unfold. Now, their tunes have changed and both the leaders are insisting that they be allowed to concentrate on their day jobs.
The fact that their day jobs now include dealing with the fall-out of the horrific events at Westgate shopping mall has undoubtedly strengthened their hands in this regard. But regardless of these developments they could have counted on the support of leaders from a growing number of countries in the continent who feel that the ICC is prejudiced against Africans. This was a perception that began under the court’s first Prosecutor, Louis Ocampo. His successor, Fatou Bensouda, has found the perception hard to shake — not least because she inherited Ocampo’s active case-load.
Of all the ICC cases that Bensouda inherited, Kenya’s has proved particularly incendiary. This was the first case in which the Prosecutor exercised his right to open an investigation, rather than accept a case referred by a signatory to the Rome Statute or by the UN Security Council. It was also the first instance in which the court investigated electoral violence: The charges that Kenyatta and Ruto face of crimes against humanity arise from their alleged role in abetting the conflict that surrounded Kenya’s elections in 2007, in which over 1,100 people were killed. African leaders who felt confident they could avoid charges of the sort levied at Sudan’s President Omar Hassan al-Bashir, might feel less confident of steering clear of charges tied to electoral violence.
On the domestic front, Kenya’s parliament has recently vowed to strike itself from the Rome Statute and, in doing so, to remove the country from the ICC’s jurisdiction. Their success in passing this motion is not so surprising, given the political capital that the President and Deputy President hold, and the proficient job they did of mobilizing public opinion against the court in the last elections. However, this was always more of a symbolic than a practical move: withdrawal could not halt the on-going cases in The Hague. Another move has been to try and wrestle the case from ICC’s hands by claiming that Kenya’s domestic courts are now willing and able to try the matters in question. The ICC only has jurisdiction over matters where this is not the case.
Regionally, these manoeuvres have enjoyed widespread support. The African Union (AU) has long been a key forum through which doubts and accusations against the ICC are expressed. In 2009, for example, the AU declared that its member states would not cooperate in the arrest of al-Bashir. Now, spurred on by developments in Kenya, countries like Uganda, Rwanda, Zimbabwe and Eritrea want to engineer an African walk-out of the court. They are hoping to use an extraordinary meeting of the AU next month as a platform for mobilizing support for such an initiative.
What AU declarations past and present have overshadowed is the diversity of opinion that exists between, and within, African countries over the ICC. As employees at the court are keen to highlight, the ICC was invited to investigate many issues by African states themselves (albeit sometimes for the sake of realpolitik rather than justice). It is also worth remembering that the May meeting of the AU was moved from Malawi to Ethiopia because the government of Malawi vowed to arrest al-Bashir if he were to accept the organisation’s invitation to attend.
The tone with which the AU’s stance against the ICC is explained by its leaders is telling. Take, for example, the push to return Kenya’s case to its domestic courts in May. Ethiopian Prime Minister and AU Chairperson, Hailmariam Desalegn, angrily declared that the ICC’s judicial process had ‘degenerated into some kind of race hunting’. In contrast, AU Committee Chairperson Nkosazana Dlamini-Zuma, a South African who has always been a staunch supporter of the court (in contrast to her predecessor, Jean Ping), focused on the formal remit of the court. The ICC, she highlighted, could only ever be a court of ‘last resort’: The issue at hand was one of procedure.
Perhaps most crucially, support for the ICC from heavyweights within the AU like Nigeria and South Africa has always been fairly steady.
But is South Africa’s position on the ICC shifting? Whilst Zuma has been willing to share his thoughts on the issue of Ruto and Kenyatta’s court attendance, South Africa is yet to take a formal stance on developments at the court. To date, it has been one of the strongest supporters of the ICC in the region. In 2000, when Dlamini-Zuma was Minister of Foreign Affairs, South Africa became the 23rd state to ratify the Rome Statute. Two years later, when the statute garnered enough signatories to come into force, South Africa was the first African country to pass its provisions into domestic law. In the last decade, the country has remained a staunch supporter of the ICC, despite the court being roundly critiqued for its Africa-centric case selection. South Africa backing stayed firm when the ICC accepted referrals from Uganda, the Democratic Republic of Congo, the Central Africa Republic and Mali. It also got behind cases referred from the UN in Sudan and Libya. This was no mean feat given that, in Sudan, the court indicted a sitting leader.
In 2009. despite the AU decision over the al-Bashir case, the ANC explicitly stated that they would continue to co-operate with the court: ‘If al-Bashir were to come to South Africa today’, they declared, ‘we will definitely implement what we are supposed to in order to bring the culprit to [The]Hague…We can’t allow a situation whereby an individual tramples on people’s rights and gets away with it…The perpetrators of war crimes should be tried at all costs.’ The governing party justified its stance by referring to the domestic legislation mentioned above (it remains only one of only six countries in Africa to have passed such laws).
Now, state officials are being far more enigmatic. ‘We are quite a disciplined and democratic government’, the Minister of International Relations and Co-operation stated when asked about the upcoming AU meeting, ‘so we don’t decide the outcome of meetings before they sit’. The comments of departmental spokesperson Clayson Monyela, seemed to suggest that the country would not necessarily align itself with the regional body on the issue. ‘We are far from that sort of position’, he claimed. Two days ago, however, the National Executive Committee of the ANC issued a press statement in which it roundly critiqued the ICC’s behaviour. The Court, it claimed, ‘is used more to effect regime change’ than to pursue world justice. Should Ruto and Kenyatta be forced to remain in court, they argued, this would effectively prevent them from governing their own country and, as such, would be tantamount to a ‘judicial coup’. ‘In view of these facts’, they concluded, ‘the NEC mandated the President to participate freely in the African Union debate of African countries reviewing their individual membership of the ICC, in Addis Ababa on 12th October 2013. The NEC strongly mandated the President and the delegation not to break ranks with the continent on this matter.’
The country’s prior support for the ICC has enabled it to appear legally holier-than-thou in the region: a stance that has become at once more necessary and more hypocritical given Zuma’s troubled relationship with his country’s own judiciary. This would be an upper ground that many in the South Africa would be sad to lose. But a shift in stance could also fit neatly within the frame of global institutional reform that Zuma has been pushing, chiming well with his recent call for change in the makeup of the UN Security Council.
Times, it seems, could be a-changin’ for South Africa and the ICC.