As African leaders, under the auspices of the African Union, voted at the weekend to redefine the continent’s relationship with the International Criminal Court, seven other strategies were being employed at different levels to stop the appearance of President Uhuru Kenyatta before the Hague-based court in a month’s time, when his trial is scheduled to begin.

A meeting of Foreign Affairs Ministers in Addis Ababa, Ethiopia, ahead of the AU Extra-Ordinary Summit on October 12, set the pace for the defining moment for Africa in its relationship with the ICC, with six proposals for consideration by the African leaders, that could result in the continent severing links with the court. The proposals are for the AU to establish a high-level observer group to audit Kenya’s reforms and recommend that it can solve its own problems and lobby the UN Security Council members to defer cases against President Kenyatta and Sudan’s Omar al-Bashir.

Other proposals are for the AU to push for amendments to the Rome Statute to allow countries to try cases of crimes against humanity and to strengthen the African Court of Human and People’s Rights. The final two proposals are to ensure that AU representatives in the UN Security Council play an active role and demand a fresh relationship between the ICC and the continent. It is the final proposal that could translate into a vote to withdraw from the ICC en masse.

READ: Kenya faces tough task of pushing anti-ICC agenda at AU

And as the African leaders weighed their options on dealing with ICC, the court’s registrar, Herman von Hebel, told them to take any recommendations on the working of the ICC to the Assembly of State Parties, when it convenes in the Hague from November 20 to 28.

“They should consider the progress the court has made in the fight against impunity all over the world and the work it has done to bring justice to the victims of these crimes,” Mr von Hebel told The EastAfrican. He said the court assured all suspects before it of an impartial and independent trial.

His words would have done little to assuage the ministers gathered in Addis, who spoke of the numerous obstacles they claim the ICC has placed in their way: The UN Security Council turned its face away when they spoke, the ICC simply ignored their pleas while on the floor of the UN General Assembly and their requests for court to have “an African heart” fell on deaf ears.

AU Commission chairperson Nkosazana Dlamini-Zuma and the Union’s chair of the Executive Council Tedros Adhanom gave the strongest indication that the continent “will no longer climb to various rooftops to state its position.” This time, they stated, Africa was ready to elbow its way and, if necessary, walk away from the ICC.

“During this session, we should seriously consider how we should ensure that our collective voice is heard to receive a fair treatment to our concerns. We should not allow the ICC to continue to treat Africa and Africans in a condescending manner. That is the reason why we are gathered here,” said Dr Adhanom, Ethiopia’s Foreign Affairs minister, during the 15th Extra-Ordinary Session.

With Kenya’s Cabinet Secretary for Foreign Affairs Amina Mohamed and Attorney General Githu Muigai in attendance, the Council went ahead to agree on the resolutions that were expected to be adopted today by Heads of State when they met.

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Ms Mohammed, however, denied the meeting was meant to declare Africa’s severance of links with the ICC, arguing that the session would only come up with resolutions demanding “a fresh relationship” between the continent and the world court on crimes against humanity.

“The fears that we want to move out of the ICC have been laid to rest. There is no time we have said that we want to move out of the ICC,” she said after the session.

The Special AU Summit comes exactly a month to the date that the ICC has set as the beginning of the trial of President Kenyatta at the ICC. His deputy, William Ruto, is attending trial proceedings at The Hague that began on September 10. The two, alongside journalist Joshua arap Sang, are facing charges of crimes against humanity arising from the 2007/8 post-election violence in which 1,163 people were killed and another 650,000 evicted from their farms.

President Kenyatta, who will attend the Special AU Summit, is likely to come under pressure from regional leaders to skip the trial sittings. Friday, the ministers’ meeting expressed “disgust” at the decision by the ICC to require Kenya’s president and his deputy to attend the trial proceedings in full, warning that it diverted their focus from running the government.

“Our request to the court to allow the president of Kenya and his deputy to choose the sessions they wish to attend in accordance with their constitutional obligations and duties has not received a positive response. However, the recent terrorist attack in Nairobi has further reinforced our request, thereby underscoring the need for Kenyan leaders to be front and centre in the fight against terrorism and not be distracted in any way by the Court,” said Dr Adhanom.

Ms Mohammed said the time had come for the ICC to redefine its relationship with its state party members from the AU, who are now the majority at 34. The Hague, she argued, should listen to the concerns that were being raised nearly all over the continent.

“Ministers have been making strong statements, raising issues of concern on the relationship between the ICC and the continent. It is time the ICC strove to understand Africa and we will raise these issues at the appropriate place, which is the Council of State Parties to the Hague,” she said.

The Council of Ministers was said to have resolved that the continental bloc would support “whatever stand Kenya took on the ICC matter.”

In addition to the political pressure being exerted by the AU, President Kenyatta has made an application to the Trial Chamber handling his case to be allowed to follow the proceedings via a video link. The application is yet to be determined. In another application, he requests to be allowed to skip some of the court’s sessions to enable him to carry out his constitutional mandate as head of state.
This too is pending. And last week, the Kenyan president made a fresh application to have his trial stopped altogether, saying the defence team had evidence of witnesses being interfered with. He asks the court to either stop the trial or first hear the matter of witnesses.

READ: ICC rejects Ruto bids amid African leaders’ criticism

At the AU level, Ms Dlamini-Zuma is said to have asked UN Security Council envoys how they would react if asked to defer the international trials of Kenya’s leaders so they can deal with the aftermath of the Nairobi mall attack three weeks ago. According to Reuters, Ms Dlamini-Zuma suggested that the AU could decide to formally ask the Security Council to defer trials of President Kenyatta and his deputy. The UN Security Council can defer ICC cases for one year under Article 16 of the Rome Statute. But such a decision must win the backing of the Council members. In May, Kenya had written to the UN Security Council seeking to have the cases dropped, but the bid flopped.

In yet another bid to save President Kenyatta from the Hague, two petitioners, Ken Bartai and Felix Kiprono, last week moved to the High Court of Kenya seeking to stop the president and his deputy from attending the trials. The petitioners, whose plea is yet to be heard, also want the court to declare the International Crimes Act, 2008, unconstitutional. They argued that Kenya’s dignity is at stake and the attendance of the two could jeopardise the security of the country.

The final bid is a concerted campaign by local politicians and lobby groups who simply urge the president not to turn up in court.

They argue that a sitting president cannot be put in the dock. On Wednesday, Foreign Affairs Cabinet Secretary Amina Mohammed said at a press conference that there was nowhere in the world that a sitting president has ever attended trial in a foreign court, perhaps a pointer to the government’s position on the issue.

Those privy to lobbying behind the scenes argue that President Kenyatta’s application to have him follow the trials through video link also has high chances of succeeding, but only if he attends the first session and has his lawyers put in a strong petition that his attendance will affect his constitutional duty to preside over the affairs of Kenya.

But there are emerging arguments among Kenyatta’s supporters that the ICC should take into consideration that Kenya is a partner state that has been co-operating all along. Kenyatta’s and Ruto’s supporters have argued that attending the trials would complicate their ability to attend to their national duties.

By Bernard Namunane and Fred Oluoch