The continent needs an African court, not the ICC


Last week I attended the 24th Summit of the African Union Heads of State and Government and had the privilege of chairing a side event that looked at what lessons Africa has learnt from Kenya’s experience with the International Criminal Court (ICC).

The first lesson is that the ICC is not about justice. There is no guarantee that if an accused person successfully defends himself before court he can clear his name. At this court it does not matter how hard you work towards clearing your name; or that there is insufficient evidence to sustain a case against you.

The court can decide that even if you have not been found guilty, whatever ‘evidence’ exists against you can be shared publicly to whoever wants it. Basically as far as the court is concerned you are as guilty as the Prosecutor accused you at inception of trial notwithstanding anything your defence might do to challenge those charges thereafter.

The second lesson is that justice at the ICC is relative. This court has different rules for the West, the East, Asia and Africa. It defines and redefines the meaning of terms like ‘admissibility’, ‘legal threshold’ and ‘the principal of complementarity’, depending on where a situation country is based.

This is how Syria is not yet a situation country even though millions have died due to political violence. This is why countries like France, UK or America can directly attack and literally destroy other leaders and their countries like they did with Libya, Iraq, Egypt, (etc) and not be charged at the ICC.

As the former UK Foreign Secretary Robin Cook once stated, the ICC is not a court that was set up to deal with leaders of such countries.

This also the reason why Israel is so furious at the court’s decision to launch an inquiry into possible war crimes it has committed against the Palestinian people. Israel knows the ICC is not about such situations, which is why Prime Minister Benjamin Netanyahu has termed this decision as “absurd”.

Jerusalem has called on leading Western powers to tell the ICC that it should not hear the case. Jerusalem is basically asking the West to remind the ICC that it is not meant to target countries like Israel!

The third lesson is that the ICC is not about peace and reconciliation. This court does not recognise political settlements even when they lead to peace and start processes of reconciliation. It will nonchalantly scuttle such settlements in pursuit of its pound of flesh from an accused. This is a message that Africa, where literally every nation has had to enter into one political settlement or the other to appease warring parties, cannot afford to ignore.

It is especially relevant to ongoing peace efforts by the African Union and IGAD for South Sudan and Somalia. For example as the AU and IGAD negotiate with Salva Kiir and Riek Machar on how to bring peace to South Sudan, what if the ICC decides not to recognise whatever political settlement they come up with, and still haul either or both leaders to The Hague?

I even now suspect that had the ICC been in existence 60 years ago people like Jomo Kenyatta, Nelson Mandela, Kwame Nkrumah, Amilcar Cabral, etc; would have died in jail after having being found guilty of committing crimes against humanity for fighting for independence of their countries. Meanwhile Africa would still be under colonial rule because crimes against humanity are only committed by Africans!

Fortunately last week’s AU Summit indicates that Africa has finally admitted that the ICC was never meant to help Africa. Africa has also accepted that the ICC is a tool that developed countries use to manage African politics, which is why a majority (three) of the five countries with veto powers to start or stop an ICC investigation do not recognise the court themselves.

This recognition has led to the suggestion of the establishment of the African Court of Justice and Human Rights. At this court every nation will be equal. At this court justice will be aligned to the African social system where the ultimate objective is always restoration, reconciliation and peace; rather than retribution and revenge.

I am excited about this court but of course detractors of the idea are already intimating that such a court will not deliver justice to Africans. All I can tell them is that Africa is for Africans. In addition Kenya’s experience at the ICC has shown that it is not possible for Africa to come up with a court that treats Africans more unjustly than ICC has done, even if we tried.

Meanwhile as we establish our court what would happen if 10 million Africans demanded that the case against William Ruto stop permanently, because it adversely affects Kenya’s pursuit for peace, national cohesion, and inter-ethnic reconciliation? Would the ICC listen?

(Wambugu is a Director of Change Associates, a Political Communications Think Tank)

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