African Union floats ICC walkout after Kenyatta asks for case to be tossed

AU calls for ‘extraordinary session’ to discuss Africa’s relationship with the ICC, which is trying the Kenyan president

President Uhuru Kenyatta is accused of orchestrating large-scale violence after the 2007 Kenyan election.
Simon Maina/AFP/Getty Images

African leaders are due to meet Friday to discuss withdrawing en masse from the International Criminal Court (ICC), a day after Kenyan President Uhuru Kenyatta called for his crimes against humanity trial to be thrown out by the court.

At an extraordinary session of the African Union (AU) in the Ethiopian capital of Addis Ababa, delegates are expected to float a proposal for a continent-wide walkout from the court on grounds that its members are unfairly targeted. The potential move follows the election of Kenyatta as president earlier this year, and a unilateral decision by the Kenyan parliament in September to suspend cooperation with the ICC.

It also comes a day after Kenyatta’s lawyers called for the president’s trial to be dismissed on grounds that witnesses for the defense had been intimidated.

“The defense is in possession of substantial evidence of a serious, sustained and wide-ranging abuse on the process of the court,” Kenyatta’s lawyers said in a 38-page document filed on Thursday.

Kenyatta and his deputy, William Ruto, are accused of orchestrating large-scale violence in the aftermath of Kenya’s contested 2007 presidential elections that left more than 1,200 people dead. Kenyatta and Ruto, who both ran for and lost the presidency in that election but recaptured it as members of the same political alliance in 2013, deny the charges.

The Kenyan president’s call for the dismissal of his trial, which is slated to begin on Nov. 12, came as African leaders prepared to meet in Addis Ababa to discuss "Africa's relationship" with the court. Several leaders have alleged that the ICC unfairly targets African countries.

So far, each of the court’s eight indictments have come against Africans, although five of those cases were brought to the court by African governments and two more came from the U.N. Security Council with full support from its African members. The indictments relating to post-2007 election violence in Kenya were the first instances of the ICC proactively targeting an African leader.

The ICC — the world's only independent, permanent tribunal for war crimes, genocide and crimes against humanity — took charge of the cases after Nairobi failed to set up a tribunal of its own in line with agreements brokered by former U.N. Secretary General Kofi Annan. 

But the Ethiopian Prime Minister Hailemariam Desalegn told Reuters on Thursday that the court had shown “double standards” in prosecuting only Africans.

“We are not objecting to the court, we are objecting to the way it acts,” he said, commenting that the ICC was more effective at targeting the weak than the powerful.

Desalegn also called for Kenyatta’s trial, the first by the ICC of an active head of state, to be deferred so that the president and his deputy can carry out their mandate to rule.

Ethiopia, which currently chairs the African Union, is not a signatory of the Rome Statute that established the war crimes court in 2002.

Randy Bell, an East Africa expert with the International Institute for Strategic Studies in Washington, D.C., acknowledged that the Africa-heavy ICC docket does not look good, but noted that the ICC was only proactive in targeting Kenyatta and Ruto due to the failings of Kenya's judiciary.

“The Kenya case was brought by the ICC, but only after the Kenyan political system failed to act,” Bell said. “The Kenyan political class has been able to operate without any sort of repercussion for the past 50 years."

Transparency International rated Kenya 139 out of 176 countries in terms of corruption control in 2012. Freedom House noted in a recent report that allegations of high-level corruption had not led to meaningful investigations.

"Apparent elite impunity damages both governmental efficiency and people’s faith in democratic rule" in Kenya, Freedom House said.

Kenya’s parliament, which is dominated by Kenyatta and Ruto's political alliance, passed a motion last month "to suspend any links, cooperation and assistance" to the ICC. Kenya's withdrawal from the statute would preclude future prosecution for crimes committed in the country but not abort the Kenyatta trial.

Minority leader Francis Nyenze, who opposed the resolution, warned, "We'll be seen as a pariah state, we'll be seen as people who are reactionary and who want to have their way."

AU 'venting'

Africa analysts and human rights advocates alike warn that Africa’s withdrawal from the ICC would not help the impunity endemic that is seen to plague many states on the continent, including Kenya.

“Such a resolution would serve no purpose except to shield from justice, and to give succor to people suspected of committing some of the worst crimes known to humanity,” said Tawanda Hondora, Amnesty International’s deputy director of law and policy, in a statement.

Bell agrees that withdrawing from the court would be a mistake because “the ICC has put some fear in the hearts” of political elites.

An African Union proposal to withdraw would also present a number of pragmatic concerns — namely, what could replace it.

“You can say that the ICC for one reason or another is not the right mechanism, but of course it’s the only mechanism that’s there,” said John Campbell, a senior fellow for Africa Policy Studies at the Council on Foreign Relations. “And if you take it away, what institution have you got to address the impunity question?”

Campbell said the anti-ICC fervor will in all likelihood fizzle out.

“The whole thing is pretty dubious,” he said, “and I trust that at the AU summit, while there will be a fair amount of venting, nothing will come of it.”

The Coalition for the International Criminal Court, which works to strengthen international cooperation in the ICC, certainly hopes so.

"Civil society across Africa has made it clear that a massive withdrawal from the ICC is not in the interest of victims and is a step backward in the fight against the culture of impunity," said Linda Gueye, CICC's director of communications.

"There is still hope that some African leaders, especially those who sought the assistance of the ICC in the first place, will stand up against such initiative despite pressure from the AU."

Thursday’s filing is not Kenyatta’s first attempt to maneuver his way out from under the court’s authority. In the aftermath of the deadly Westgate mall attack in September, when the Al-Qaeda-linked Al-Shabab attacked an upscale Nairobi shopping center, Kenyatta’s allies called for a suspension of his trial so that the Kenyan President could steer his nation out of harm’s way.

"The security concerns of the world at this time would better be served by us focusing all our energies on fighting terrorism, and ... ensuring the whole of Africa will not be a safe haven for terrorism," said Moses Kuria, a strategist for Kenyatta's Jubilee coalition who has worked alongside him.

"Therefore, it will be untenable to have these cases continue," he told Reuters.

ICC judges adjourned Ruto’s trial, which began in September, for a week amid the Westgate incident. The court has only commented that Kenyatta’s requests, including his desire to appear in his trial by video link, would be addressed on a case-by-case basis.

Randy Bell said that taking advantage of the Westgate tragedy to suspend ICC trials could lead to a series of delays and excuses.

“It’s the kind of thing where when you get one extension, there’s another and another. It denies any sort of closure for the victims of the violence.”

Al Jazeera with wire services

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