On December 27, 2007 Kenyan incumbent President Mwai Kibaki was declared the winner of a hotly contested presidential election in the East African country. Unfortunately, what would follow is more than two months of extraordinary violence between supporters of opposition candidate Raila Odinga and those that backed Kibaki.
After the smoke settled and a coalition government was formed, the ever present question of transitional justice and punishing those that committed crimes during the fray was raised.
While initially the Kenyan Government decided to investigate the matter internally, with a special local court, the country would eventually take a major step towards international acceptance of the International Criminal Court and acquiesce to investigation from the Hague.
After investigating the matter for several years, the ICC indicted six individuals believed to be the leaders of the post-election violence for crimes against humanity, including murder and torture. The list of indictments included, among others, Uhuru Kenyatta, who had been a Deputy Prime Minister and the Chairman of Kibaki’s party and William Ruto, a prominent politician and supporter of Odinga.
The significance of these two? While under indictment they would become the President and Deputy President of Kenya, respectively.
Initially the two accepted the ICC’s jurisdiction and attempted the near-impossible task of juggling the requirements of running a country and attending to one’s own trial in the Hague this would eventually become problematic.
Ostensibly for this reason, the pair, in their separate cases, petitioned the Court for a more flexible timeframe. The result, according to the International Justice Monitor, is that, while the trials will continue, neither has to be “continuously present” at their trial due to the “exceptional nature[s]” of their positions as sitting President and sitting Deputy President.
The pair, along with Kenya and a number of other African countries sought greater accommodation.
According to the BBC, at a summit in Ethiopia in 2013 the AU “demanded a further deferral” for the President’s trial. The summit also passed a resolution stating that “no sitting African head of state should appear before an international court. ” Rwanda also proposed a motion at the United Nations Security Council that would suspend the trials, however, the resolution would fail, infuriating the African diplomats that had backed it.
Depending on one’s perspective, this qualifies as intransigence from the Court and the United Nations, with an unwillingness to allow the elected officials the time and leeway they need to run a country or a pair of alleged war criminals attempting to use an election to absolve them of their crimes. Either way, the frustrations on both sides have led Kenya to lose faith and tolerance for the ICC, potentially bringing the rest of the continent along with it.
The movement came to a head this week at the African Union summit in Malabo, Equatorial Guinea with the discussion of a mandate for the, still theoretical, African Court on Justice and Human Rights (ACJHR).
Let us step back for a moment.
The AU has, for eight years, had the African Court on Human and People’s Rights (ACHPR), sitting in Arusha, Tanzania working to interpret the AU Charter and other international conventions of member states. In addition to the ACHPR, the AU charter envisioned an African Court of Justice (ACJ) that would be the “primary legal organ of the African Union” that is yet materialize.
In a 2008 AU summit in Sharm el Sheikh, Egypt, member states voted to fold the two together, creating a two chambered Court that would be both the “principal legal organ of the AU,” as the ACJ was intended to and to protect human rights and interpret conventions as the ACHPR. To date, however, only five of the 15 ratifications necessary for this arrangement have been procured, leaving the Court in limbo.
Nevertheless, this week in Malabo leaders are debating a new protocol on the mandate of the ACJHR. The crafting of the Court’s mandate will prove to be the most important element in its eventual success at protecting human rights and discouraging impunity.
Whether a small state court located in rural Wisconsin or the International Criminal Court sitting in the Hague, a court draws its competences from its mandate. A court cannot rule on issues outside of its mandate.
While an ACJHR that is seen as infringing too heavily on sovereignty may discourage participation from across the continent, losing it legitimacy and potentially leaving it in ratification limbo, a Court that cannot prosecute even the most basic crimes will be simply for show, doing nothing to protect Africans.
The protocol is yet to make it to a vote, but there are rumors as to some of the more controversial sections.
The Institute for Security Studies, a South African think tank, has written that among the potential provisions will be head of state immunity, along with a “deliberately ambiguous” immunity for “other senior officials based on their functions,” a rather bald nod towards the Kenyan situation, and the inclusion of a number of financial crimes such as corruption and money laundering. Should the protocol pass, as appears likely, we will revisit the individual provisions for their historical significance and potential results.
When Kenyan leaders appeared willing to comply with the ICC it was a major victory for the Court’s proponents. Critics of the Court have frequently said that it is inefficient and targets only Africans, however, the acquiescence of leaders from one of the most influential countries on the continent seemed destined to turn the tides for the Court. Disagreements between the ICC and Kenya have led to a continent-wide movement away from the Hague. The upcoming protocol and mandate of the ACJHR is an important part of that movement.
Andrew Friedman is a human rights attorney and consultant who works and writes on legal reform and constitutional law with an emphasis on Africa. He can be reached via email at afriedm2@gmail.com or via twitter @AndrewBFriedman.
