Putting Justice First

　　The 50th African Union (AU) anniversary celebrations earlier this year in Addis Ababa were overshadowedby calls for the International Criminal Court (ICC) to droptheir investigations against the Kenyan leadership.

　　AU member states， through a joint resolution， demandedthat the ICC terminate its investigation for crimes againsthumanity leveled against the newly-elected President， UhuruKenyatta， and his deputy， William Ruto.

　　The two are implicated in the violence thatrocked thecountry following the general elections in 2007-08， in whichmore than 1，000 people lost their lives.

　　The Ethiopian Prime Minister， Hailemariam Desalegn， whois the current AU chairman， implied that the ICC’s motivationwas inspired more by racism than the need to seek justice.“The intention was to avoid any kind of impunity， but nowthe process has degenerated to some kind of race hunting，”he is reported to have told journalists during the celebrationsin Addis Ababa.

　　But in a quick rejoinder， theICC released a statement， ineffect denying these allegations， but reaffirming its commitmentto follow the law.

　　“The ICC operates strictly within the mandate and legalframework created by the Rome Statute， the founding treatyof the court， and cannot take political factors into account，”read the statement.

　　It continued， “Decisions are taken independently on thebasis of the law and the available evidence and are not basedon regional or ethnic considerations.”

　　Not everybody agrees with the line taken by the Africanleaders on this issue. John Moreti， Botswana’s Ambassador toKenya， told reporters that there was no consensus on the issueand that his country did not support the stance taken bythe AU. Only Botswana and the Gambia declined to endorsethe AU resolution.

　　Elizabeth Evenson， senior counselat Human RightsWatch， does not see how African leaders can turn against theICC， given that their countries comprise the majority of itsmembers.

　　“African countries were among the earliest supportersof the ICC at its establishment， and Africancountries are the largest grouping of the ICCmember states，” said Evenson.

　　All of the eight cases currently beforethe ICC involve Africa， a situation that formedthe basis for the position adopted by Africanleaders.

　　Four out of the eight cases were referred byAfrican governments. These include cases broughtby Uganda， the Central African Republic， theDemocratic Republic of the Congo and Mali.

　　Separating itself from AU opposition， theGovernment ofCote d’Ivoire filed a declaration accepting the court’s jurisdiction，given that at the time it was not an ICC state party.

　　Even so， Evenson echoes the sentiments expressed byNkosazana Dlamini-Zuma， Chairperson of the AU Commission，to the effect that the ICC is a court of last resort.

　　In other words， the court acts only when national governmentsare unable or unwilling to hold those responsible forthe world’s worst crimes accountable for their actions.

　　“In Kenya， the ICC prosecutor stepped in only afternational authorities failed to bring any measure of justicefor horrific crimes committed during the country’s 2007-08post-election violence，” said Evenson.

　　Be that as it may， opponents of the ICC investigations， likeDlamini-Zuma， hold the view that Kenya has since moved on.

　　They argue that the country now has a reformed judiciarywith the capacity to hold the trial at home and therefore thecases should revert back to Kenyan courts.

　　Calls to have the ICC cases be heard in Kenya are not new.The Kenyan Government tried it once， but these efforts werefutile， “because the ICC judges found no evidence that thecases before the ICC were actually being investigated nationally，”explains Evenson.

　　The ICC is also perceived to have double-standards in itsapplication of justice. Evenson explains that even though theUN Security Council can refer non-state-parties to the ICCas demonstrated with the referrals of Darfur and Libya， theCouncil remains a highly politicized body， which hasnot shown consistency or even-handedness in itsreferrals.

　　“It is true that there is a double standard still at workin international justice， however， it is not the ICC butinternational politics and states’ perceived politicalinterests that are to blame，” she said， adding thatthe new Kenyan Government should instead putpolitics aside and allow the ICC process to run itsindependent course.

　　By Geoffrey Kamadi