The curious case of the ICC and Kenya

Motsoahae Thomas Thabane and Henry Homateni Shimutwikeni examine the issue as to whether Africa is being unfairly singled out


There is much debate about the current ongoing cases of top political forces in Kenya at the International Criminal Court (ICC). These very cases have raised more questions than answers particularly in reference to the functioning (and/or credibility) of the ICC; and the overhanging perception that the Court is out to persecute African leaders as it being used to achieve narrow imperialistic agendas of the West. This paper seeks to argue that the ICC cases in Kenya, and perhaps the rest of cases with relation to Africa, are the creation of Africa itself; and that the role of ICC on African matters in a symptom of the systemic lack of power that Africa has on the global arena.

Kenya and the ICC

As it is well documented the newly elected President of Kenya Uhuru Kenyatta and his Deputy Samoei Ruto, along with five others, are currently being prosecuted at the ICC. To briefly state, they are charged with crimes against humanity including murder, forceful removal of populations, mass rape and other sexual crimes, etc.

These charges that are mentioned here are amongst those that are deemed crimes against humanity as enshrined in the Rome Statutes, which establish the ICC. The charges come as a result of the aftermath of the 2007 General Elections that were held in Kenya. A brief glance at the political (and societal) dynamics will dictate that, historically, there have always been deep and fundamental tribal divisions in Kenya.

Most elections in Kenya have been characterised by post-election violence under toned by serious tribal tensions; this is evidenced by reports of violence that occurred in the 1992, 1997, 2002, and 2007 elections. After 2007 elections which saw a fierce contest between Mwai Kibaki and Raila Odinga, Kibaki was declared as the winner however Odinga swiftly rejected the results sighting electoral fraud.

This sparked the ethnic violence along the tribal lines of the respective leaders with the Kikuyu (Kibaki's tribe) and Luo (Odinga's tribes) attacking one another. After a 2008 mediated political settlement, brokered by the Former UN Secretary General Kofi Annan, one of the accords that were agreed to was the establishment of the Commission of Inquiry into the Post-Election Violence, known as the Waki Commission.

The Waki Commission made recommendations that certain individuals implicated in the violence should be tried by a special tribunal or the cases be referred to the ICC. After the rejection of the report of the Waki Commission by the Kenyan parliament in 2009, the report was forwarded to the prosecutor of the ICC who subsequently decided that the individuals mentioned in the inquiry have cases to answer to.

In 2011 ICC issued six individuals with summonses to appear before the court. Thus we find ourselves in the current situation. The recently convened parliament of Kenya has voted to pull out of the ICC and deratify the Rome Statues. This case of Kenya has sparked serious debates about the role of the ICC and begs the question of why the Africans are seen as the main targets, this will be expounded on further below.

Africa and the ICC

Majority of the member states of the AU, 34 to be exact, have ratified the Rome Statutes, thus placing themselves under the jurisdiction of the ICC. This also represents the highest number of signatories of the Statutes by any region in the world.

There are currently 32 individuals from eight African countries that are being prosecuted in the ICC, and all of them are from African Countries. These are from Democratic Republic of Congo; Uganda; Central African Republic; Sudan; Kenya; Libya; Côte d'Ivoire; and Mali. However the very nature of the individual cases exposes the double standards of some of our African leaders.

Just to briefly explain, the cases that are tried by the ICC can only happen in one of three ways; 1. On the basis of a referral from any State that has ratified the Rome Statutes, or 2. Resolution the United Nations Security Council, or 3. The Prosecutor can initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court received from individuals or organisations.

In the cases that are currently before the ICC, only those from three African countries Kenya (initiated by prosecutor), Sudan (initiated by Prosecutor) and Libya (UN Security Council resolution); have had external influence. The rest of the cases have been referred to the ICC by African states themselves. So if Africans are prosecuting Africans at the ICC how can there be bias against Africans at the ICC?

The question raised above had many dimensions and cannot be narrowly answered. One of the pertinent reasons is that African countries, both individually and through the AU, are politically weak to influence international dynamics as stated earlier. Of course crimes against humanity do not occur in Africa only, if indeed they are proven against those with cases already.

One has to look at contemporary historical events where repression of man against man have happened; to mention but a few: the Apartheid Israel which continuously oppresses Palestinians; the crackdown of protestors in Yemen and Bahrain during and in the aftermath of the "Arab Spring"; the crackdown of political dissenters in Myanmar; and the wars of United States in Iraq and Afghanistan.

There are many other examples, however all of the instances mentioned above have happened at a larger scale and caused more harm that the incidents that have happened in Africa, and have caused more havoc to human life. All the countries mentioned have pulled necessary international strings and used manoeuvres to ensure that the ICC has not made their respective countries playgrounds.

The same, sadly, cannot be said of their African brethren. Because if Africa had the necessary international influence they would have ensured that all perceived crimes against humanity are investigated and prosecuted; not only the ones that are alleged to have occurred on the African continent. To further motivated this sentiment, if Africa had the necessary political recognition international, no foreign power would step on the continent and resolve African problems whilst we have declared to let Africans resolve their problems themselves. The problem is that Africa increasingly resembles of a mere geographical region as opposed to political bloc.

The AU is convening an Extraordinary Summit that will deal with matters of the ICC. One can hope that beyond howling about the perceived persecution of the ICC, the pertinent issue of international recognition of Africa will be at the forefront and will deal with the disease that is engulfing the continent of always being undermined in the international arena. One hopes that the summit will not only deal with the symptoms, which are how to tackle the cases of Kenya and Sudan at the ICC.

Motsoahae Thomas Thabane Jr is a graduate of Public Administration, and is pursuing Post Graduate Studies in Labour Law at the University of the Free State. He is also a student activist and currently hold the position of Provincial Secretary of the South African Students' Congress (SASCO) in the Free State.

Henry Homateni Shimutwikeni is an International Law Scholar with an LLB from the University of the Free State. He is also founder of HHS International and Security Affairs Consultancy.

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