The African Union (AU) has resolved that no serving president or prime minister should appear before any court or tribunal and asked the United Nations Security Council to act on the organization’s pending request for the suspension of the trial of Kenya’s President Uhuru Muigai Kenyatta, which is due to start on November 12.
The decision of African leaders over the weekend raises the possibility that Kenyatta will not attend his trial at the International Criminal Court (ICC). When asked to clarify what would happen if the suspension request was not acted on by November 12, Ethiopian Foreign Affairs Minister Tedros Adhanom Ghebreyesus told journalists that AU leaders had asked Kenyatta not to attend his trial until the AU’s request had been accepted.
“To safeguard the constitutional order, stability and integrity of member states, we have resolved that no serving AU Head of State or Government or anybody acting or entitled to act in such capacity, shall be required to appear before any international court or tribunal during his term of office,” said AU Chairman Hailemariam Desalegn, while reading out the resolutions of the organization’s leaders at the end of their Saturday extraordinary summit. The summit was called extraordinary because it was held outside the regular meetings of AU leaders, which usually take place in January and the middle of each year. Hailemariam is the prime minister of Ethiopia, which is holding the rotating chairmanship of the AU this year.
The resolution made no mention of former radio journalist Joshua arap Sang, who is on trial with Kenya’s Deputy President William Samoei Ruto on three counts of crimes against humanity for their alleged roles in the violence that nearly tore apart Kenya five years ago. The resolution also does not make mention of the other Africans, including a former Congolese vice president and a former president of Ivory Coast, with cases before the ICC.
Saturday’s decision by AU leaders means that Sudanese President Omar al-Bashir is likely to be able to travel throughout the continent without fearing that an African country will act on a pending arrest warrant that the ICC first issued against him in 2009 on charges of crimes against humanity and war crimes for his alleged role in the conflict in the western Sudan region of Darfur. The Sudanese leader has been careful to travel only to those countries that have not ratified the Rome Statute, the law governing the ICC, or countries that have made clear they will not arrest him if he traveled to them.
The AU decision requires Kenya to prepare another request to the Security Council for the cases against Kenyatta and Ruto to be suspended under Article 16 of the Rome Statute. This is the provision in the Rome Statute that gives the Security Council the power to ask the ICC to suspend proceedings for one year because continuing those proceedings poses a threat to international security. The Security Council can ask for that suspension to be renewed. The AU decision, however, does not specify whether Kenya will be making a straight-forward request for a deferral. It also does not state whether that request will include details such as how the trials of Kenyatta and Ruto are a threat to international security.
Unlike previous requests for suspension of the proceedings against al-Bashir, Kenyatta, and Ruto that have been handled at the ambassadorial level, this latest one will be followed through with lobbying by a group of African foreign affairs ministers. Previously, it was the ambassadors of African countries with a seat on the Security Council who had lobbied their fellow ambassadors at the Security Council. On Saturday, the AU leaders directed the foreign affairs ministers of Ethiopia and Kenya, plus one each from the five regions of the continent, to lobby the Security Council. The ministers concerned were directed to particularly lobby the five permanent members of the Security Council who have veto power over any decision of the Council, namely Britain, China, France, Russia, and the United States.
This decision on lobbying is in line with one of the recommendations the AU Commission made to the extraordinary summit of the AU on the ICC. The commission, which is charged with the day-to-day running of AU affairs, had noted in its report on the progress in implementing earlier AU resolutions on the ICC that previous lobbying efforts had been left to the initiative of individual countries and they were not coordinated even where it involved decisions adopted by the AU. The commission recommended that such lobbying should be done at the ministerial level, be better coordinated, and more robust than in the past.
The resolution on serving heads of state and others related to the ICC were made after the AU leaders had deliberated for almost seven hours in discussions closed to the media. The leaders present during the meeting were the presidents of Djibouti, Gambia, Ivory Coast, Kenya, Namibia, Nigeria, Rwanda, Somalia, Sudan, Tanzania, Uganda and Zimbabwe. The prime ministers of Algeria and Ethiopia were also present as was the vice-president of Ghana. The other countries were represented by ministers or ambassadors.
During the closed session Kenyatta made his most scathing attack of the ICC to date. He said the court had, “stopped being the home of justice the day it became the toy of declining imperial powers,” in a speech to his fellow leaders. Kenyatta’s communications team sent copies of his speech to the media at the close of the summit.
When the leaders arrived for their meeting mid-morning on Saturday, some of their aides indicated that the leaders were expected to meet for about two hours only. This is because the foreign affairs ministers had met the previous day, on Friday, and debated for more than 10 hours before agreeing on a set of draft decisions late in the night.
The resolution on serving heads of state was a unanimous decision, according to the Ethiopian Foreign Affairs Minister. Several delegations, however, shared their perspectives on the summit with ICC Kenya Monitor.
Some delegates saw the deliberations over the weekend in the Ethiopian capital, Addis Ababa, as being more about making a political point. That the process before the ICC cannot be wished away, but it could be delayed. Others, whose countries went through violent struggles for independence, saw the discussions as an act of solidarity amongs those of the generation taking over the mantle of leadership from the independence generation of leaders. These delegates also pointed out that there are many countries in the West where a head of state cannot be tried while in office and wondered why the same should not apply to the ICC.
South Africa took the perspective that there was a need to balance between justice, on one hand, and peace and reconciliation, Mac Maharaj, the spokesman for the South African presidency, told ICC Kenya Monitor. Maharaj pointed out that much of what happened during the apartheid years would qualify as crimes against humanity, but, in order to advance reconciliation and help the country transit from the old system to new one, none of the top leaders during the apartheid years were tried for crimes committed under their watch.
In the Kenya situation, two leaders who were on opposite sides in the previous election decided to join up and won, “in elections that were universally seen to be legitimate and credible,” said Maharaj. He said that because Kenyatta and Ruto led rival ethnic groups to reconciliation they should be allowed to pursue that agenda while they are in office without the added responsibility of a court case.
“We do not regard that as encouraging impunity,” Maharaj said. “The position is not to stop the prosecution but defer the prosecution [of the cases].”
When asked why the AU leaders were focused on the heads of state with cases at the ICC and not all Africans with cases before the court such as the Congolese and Darfur rebel leaders, Maharaj said the leaders did not want to encourage impunity by asking for those cases to be suspended as well.
“That is the route of true impunity. That is the route of saying that unlawful change of governments and terrorist act must continue. That is not what we were discussing,” Maharaj told ICC Kenya Monitor.
The issue of whether African countries that have ratified the Rome Statute should withdraw was not mentioned in the final resolutions of the AU weekend summit. An African pull-out had been the subject of much speculation ahead of the summit. It featured in the Friday discussions of the foreign affairs ministers. When they concluded their talks, however, the idea of African states pulling out of the ICC did not make it to the draft resolutions prepared for the presidents and prime ministers for their Saturday meeting. To the surprise of some of the delegations, the withdrawal question was raised again on Saturday, a delegate told ICC Kenya Monitor on condition of anonymity because he was discussing matters that took place in closed session.
The issue of an African pull-out of the ICC remained on the table, Ghebreyesus told journalists on Saturday. He declined, however, to be drawn in to discuss whether a pull-out would be the option discussed at the next summit if the AU’s request to the Security Council is not granted. The AU heads of state and government agreed to meet on an unspecified date at the end of November to review the progress made in implementing the decisions they reached over the weekend.