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Fighting colonialism, delaying democracy: Kenya and the African Union's battle with the ICC

Africa seems united behind the Kenyan government's push to delay International Criminal Court investigations into 2008's post-election violence in the country. But the Kenyan people have a different priority; they recognise the ICC as the only body likely to bring members of a widely corrupted political class to justice.
John Onyando
18 March 2011

The last minute cancellation of the “interactive dialogue” between Kenya and United Nations Security Council members on Wednesday 16 March was a big blow to impunity. While all Africa was waiting for the meeting’s outcome, Kenyans in particular have been reassured that the international community, acting faithfully to the UN’s Charter, remains a powerful force against impunity and bloodshed in our world.

Although the meeting was to be informal, Vice President Kalonzo Musyoka, who has been leading the push for a deferral of cases facing six Kenyans at the International Criminal Court, told reporters they would use it to persuade three veto-wielding powers to abstain during a proper discussion they were still pursuing. The US, UK and France oppose any resolution for the deferment of the cases, knowing very well the decision would politicise the Court’s work and set a bad precedent for powerful suspects. Holding a roundtable with Kenya at a forum officially unrelated to Council decisions, while not affecting their positions, would assuage China, Russia, and three other African members that were determined to approve the deferrals.

The reasons for the cancellation and whether another meeting remains on the cards are yet to be known, but the diplomatic manoeuvrings that hallmarked Kenya’s anti-ICC campaign solidified the African Union’s agenda at the UN in a way that no other issue has done for decades. Africa has never spoken so forcefully on any issue since apartheid. And never since apartheid has the continent pushed one country’s concern so resolutely at the UN. A similar African Union-sponsored request to the Council for deferral of Sudan’s ICC cases has not even been acknowledged for more than a year despite Russia and China’s backing, but it never seemed to matter much for the AU.

Kenya’s campaign was designed to be different from the beginning. For starters, Kenya is the opposite of Sudan. Its post-election violence of 2008, which the ICC is investigating, killed 1,300 people and displaced 650,000, not the millions of the Sudanese civil war and Darfur war. Kenya has a history of democratic rule, despite its problems, and since the post-election crisis has shown some movement towards institutional reforms.

But like Sudan, Kenya is led by avaricious elites who do not care what happens to the country as long as they are ruling. As US Deputy Secretary of State James Steinberg rightly observed, Kenya's future stability is inextricably linked to how justice is done in these cases, by the ICC or a criminal tribunal that meets ICC standards. Political strategising around tribes and hatred by some of the very people under the ICC’s spotlight presages another cataclysm in next year’s elections.

Opinion polls consistently show that Kenyans massively support ICC trials; because they know the games their so-called leaders have played with proposals to establish a local tribunal. They have seen their leaders renege on every commitment to cooperate with the ICC – by not facilitating the court, blocking statement taking, and now claiming that the ICC had no jurisdiction over the cases. That the AU could take the Kenyan cases to the UN testifies to the close links that African presidents have managed to establish to defeat ICC action in Kenya and elsewhere.

Kenya's elites have besmirched the ICC among African leaders who rightly see the Court as a threat to their continued stay in power. Africa constitutes the largest bloc of state parties to the ICC, and the turn of events in Kenya (where the court is investigating the top civil servant and a pedigreed deputy prime minister) has sent shivers down the spines of many leaders.

Despite a short-lived shift towards democracy in the 90’s, Africa still has some of the world’s longest serving, most oppressive and corrupt rulers who can never be brought to account for their crimes at home. The concept of intervention and the Rome Statute itself were born in part due to African crimes, and there is just no way the ICC can be effective without targeting some African leaders. The court’s role will deepen as flawed elections and violence become the norm, illustrated today by the events in Libya and Cote d’Ivoire where the AU has taken equivocal positions.

Under Ghanaian President John Kufuor and Commission Chairman Ouma Konare, the AU was instrumental in stabilising Kenya under a Kofi Annan-brokered deal that, if carefully implemented, can guarantee future stability, inclusion and peace. The basis was laid when Kenyans promulgated in August 2010 a new Constitution that entrenches principles of equity, justice and accountability. The coalition partners now campaigning for a deferral of the ICC trials have stubbornly tried to subvert the new Constitution. They have aligned their interests with other African strongmen’s. Thus, while they insidiously seek UN cover for suspected war criminals, they support Ivorian strongman Laurent Gbagbo against UN declarations, and have refused to freeze Muamar Gadaffi’s assets in line with Security Council resolutions.

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