Kenya’s anti-ICC protocol fails to find AU backers

Saturday January 31 2015

The International Criminal Court's building

The International Criminal Court's building (ICC) in The Hague, Netherlands. Cases facing Deputy President William Ruto and journalist Joshua Sang are ongoing at the court. PHOTO | FILE | NATION MEDIA GROUP

By A JOINT REPORT, The EastAfrican 

Kenyan diplomats at the African Union Summit in Addis Ababa failed to persuade other countries to fast-track plans for an African court to deal with cases currently falling under the International Criminal Court.

African leaders had already agreed, in a meeting in Malabo, Equatorial Guinea last June, to amend the Statute of the African Court on Human and People’s Rights (ACHPR) to allow it to try international crimes.

However, efforts by Cabinet Secretary for Foreign Affairs and International Trade Amina Mohamed to fast-track the amendments at the African Union Heads of State Summit collapsed on Friday after no country came forward to sign the protocol. Ms Mohamed could not be reached for comment yesterday.

Kenya had been hoping to collect signatures from at least 15 of the AU’s 54 member states and despite lobbying members of the East African Community and the Inter-Governmental Authority on Development, no other country followed Nairobi in signing the protocol.

Kenya had been counting on the votes of Tanzania, which hosts the African Court, Rwanda, with which it enjoys close relations, and Uganda, whose President Yoweri Museveni has become a critic of the ICC. However no such support was forthcoming.

Incensed by what they see as racial bias by the ICC, the continent’s leaders are looking to expand the mandate of the ACHPR as an alternative, before possibly rallying to revoke their signatures on the Rome Statute, which established the Hague-based Court.  

The ICC recently withdrew charges against President Uhuru Kenyatta citing lack of co-operation from the government and Kenyan diplomats are hoping that a threat by African states to pull out of the ICC will put the Court under pressure to acquit or withdraw charges against Deputy President William Ruto.

The proposal to empower the African court requires at least 15 countries to ratify the protocol before it becomes binding. In Kenya, this ratification is through parliament.

Donald Deya, one of the lawyers working to fine-tune the protocol and who also heads the Pan African Lawyers Association, explained the underlying intentions.

“We should support the building of the continent’s capacity to prosecute a wide range of international and transnational crimes that are of concern to the African people such as corporate corruption and illicit financial flows from Africa,” Mr Deya said.

The EastAfrican has learnt that many countries are unwilling to fast-track the proposal until key issues, such as financing for the expanded jurisdiction of the ACHPR and appointment of judges to deal with international crimes, are clarified.

In addition, many were said to be put off by the fact that despite leading the crusade for African-led judicial solutions, Kenya is yet to set up an International Crimes Division (ICD) of the High Court to try cases domestically rather than refer them to the ICC.

In East Africa, only Uganda has set up an ICD in its High Court but it has only been used sporadically. For instance, the country opted to let Dominic Ongwen, a Lord’s Resistance Army rebel commander indicted by the ICC, travel to The Hague earlier this month after his surrender rather than try him at home as allowed by the law.

A diplomatic source who spoke to this newspaper said that Kenya is not keen to establish an ICD to prosecute middle-level perpetrators of the 2007/8-post election violence until the ICC cases are over.

The ICC Prosecutor withdrew the case against President Kenyatta in early December last year, but the cases facing Mr Ruto and journalist Joshua Sang are continuing in The Hague.

In her lobbying, Cabinet Secretary Mohamed wanted the AU Council of Ministers to include the proposal on the agenda for the heads-of-state to discuss, reiterated Nairobi’s long-held view that the continuation of the ICC cases is a threat to peace and reconciliation in Kenya.

Whenever the protocol is endorsed and ratified, funding for the ACHPR will remain a challenge. Apart from the AU being donor-dependent, almost all member states are in arrears on their annual contributions. It is not clear how the expanded role of the court — which is estimated to cost an extra $4 million per year — will be funded.

The ACHPR currently has the third-largest share of the AU budget, with its $94 million budget equivalent to 18 per cent of the total.

By Fred Oluoch and Christabel Ligami