by Takudzwanashe Mundenga
With the 54-member regional bloc recently endorsed the elevation of Zimbabwe’s nonagenarian President Robert Mugabe to the African Union chair; the evening news is hardly shifting focus from African affairs. Without a momentary hesitation, Mugabe has already announced the exodus of African states from the International Criminal Court (ICC) in June this year which sparked a lot of debate across the world, interrogating Africa’s stance and commitment towards the protection of human rights. The withdrawal from the ICC in favour of the creation of an African-funded court may be regarded as warranted having the Court in question behaving more like a Western puppet through its protection of imperialist interests.
I think it is an honour for Africa to have a pledge of $1 million from Kenya towards the building of an indigenous African Court of Justice and Human Rights that would enforce the African Charter for Human and People’s Rights of 1986. I am neither sanctifying the Africans as angels for the feat nor am I exorcizing them as devils, but the continent is in dire need of indigenous therapy to gross violations of human rights. The fact that some of the Africans who were slammed with warrants of arrest for human mass slaughters, extra-judicial killings, war crimes such as using child soldiers as well as rape as a weapon of war refused to hand themselves in to the Hague prove that the office of the ICC Prosecutor-General’s ultimate decision can be successfully challenged.
The ICC raised both earlobes and eyebrows of critics for its selective justice targeting Africans as if they are the only perpetrators of international crimes in the world. This is evidenced by its fast track prosecutions even without enough substantial evidence. For example, in late 2014, the ICC dropped its case against Uhuru Kenyatta after its failure to produce crucial documents building the case.
Furthermore, failure to note crimes committed elsewhere theorized the ICC as a brutal arena where poor nations are sacrificed for the interests of the richer nations. All situations and cases under investigation are either in the southern hemisphere or specifically in Africa. Since its establishment in 2002 the Office of the Prosecutor of the ICC had investigated 8 situations involving alleged abuses of international law. Every single of these investigations related to cases in Africa namely, the Democratic Republic of Congo, Rwanda, Uganda, the Central African Republic, Sudan, Kenya, Libya, Ivory Coast, Mali and Liberia.
Though the Office of the Prosecutor has received information on alleged abuses in other parts of the world such as Iraq, Venezuela, Palestine, Colombia and Afghanistan it decided not to open investigations into those situations or kept them under preliminary examinations in order to make a determination on whether to proceed with an investigation. Decriers claim the Office of the Prosecutor’s target of Africa has been inappropriate. The former Chairman of the African Union Commission, Jean Ping faulted the court of African bias, saying, “Why not Argentina? Why not Myanmar? Why not Iraq?” Rwandan President Paul Kagame lambasted the Africanization of the ICC, saying it was created to prosecute Africans and others from poor countries. Kenyan President Uhuru Kenyatta described the continent’s relationship with the ICC as posing a “grave risk to peace and security not only in Africa, but the whole world.”
The Office of the Prosecutor General is faulted for bias in its investigations. For instance, in Ivory Coast the ICC targeted supporters of the former President Laurent Gbagbo for violations but it has been proven that even supporters of the incumbent President Alassane Quattara committed violations. In Kenya, President Uhuru Kenyatta and Deputy President William Ruto were accused of organizing an ethnic Kikuyu gang, the Mangiki sect to attack rival groups after 2007 elections which estimated 1500 people killed according to Fair Observer. However some internal sources report that even the supporters of the opposition Orange Democratic Movement leader, Raila Odinga also propagated the post-election violence that displaced more than 500 000 people across the country.
Apparently the Prosecutor General’s Office breached the international law on Diplomatic Privileges and Immunities outlined by the Vienna Convention on Diplomatic Relations (1961) when he issued warrants of arrest to the incumbent presidency of Sudan and Kenya respectively to attend trial in Hague, Netherlands. Under the Vienna Convention, ambassadors and presidents are immunized against unnecessary arrests mainly to avoid breach of domestic law. Critics claim Fatou Bensuda disregarded the sovereignty of the Kenyan nation. On 8 October 2014 when President Uhuru Kenyatta attended his Hague trial, the entire Kenyan nation was simultaneously under trial.
The United States refused to join the ICC for the fear of American nationals being prosecuted, however they seem to be stumbling block to international justice and peace by being some of the worst perpetrators of human rights. The former US President George Bush who publicly declared himself a “war president” sent drones (unmanned planes) to Somalia in several operations to eliminate the al-Shabab militia, which in reality bombed hundreds of innocent civilians than targeted terrorists.
Nonetheless, so far there is a rational tug of war of diluted notions on whether the International Criminal Court is targeting Africans therefore worth discarding or it is happening by sheer coincidence? Others stick to the point that when it was formed through negotiation of the Rome Statute, it was the Court’s largest block of members that are 34 African countries out of 122 states that were instrumental in negotiating the Rome Statute that formed the ICC. Some say the Court’s focus on Africa is not its doing, but it was invited in 5 of 8 countries where it is effectively prosecuting suspects. In Uganda, Mali, Ivory Coast, Central African Republic and the Democratic Republic of Congo, the ICC in question was asked to intervene.
The biggest question does not lie in leaving the ICC but rests in what will happen after leaving the ICC? Will the African Court of Justice and Human Rights serve its mandate without lenience? Does it mean human rights are going to be redefined to suit the African context? Are those leaders who were often protected from being flown to The Hague Court going to be prosecuted by fellow brothers and sisters? Still though defensible there are more questions than answers to the move.
Takudzwanashe Mundenga is an undergraduate at Midlands State University studying a Bachelor of Arts in Development Studies Honours Degree. He writes in his own capacity. For feedback and comments please feel free to write him on [email protected]