Is The ICC Harming Africa?

The International Criminal Court, after facing harsh criticism from the African Union (and threats from AU states to withdraw), finally seems to be paying attention to Africa’s concerns about its approach to trying leaders charged with crimes against humanity. But is that good or bad for Africa?

To be sure, criticism of the Hague-based ICC is not new in Africa.

Initially, the complaints seemed nationalistic in nature, with some people arguing that accused African leaders should be tried by Africans in Africa. Others have asserted that the ICC unfairly targets Africa, citing the fact that, so far, most indictments and investigations have been of Africans.

Most Africans ignored the ICC’s opponents, not least because the ICC indicted the likes of Sudan’s Omar al Bashir, who is widely reviled for his long record of engaging in – and capitalising on – brutal civil wars. But that changed last March, when ICC-accused Uhuru Kenyatta was elected as Kenya’s president.

Kenyatta and Kenyan Deputy President William Ruto – both charged with crimes against humanity in connection with the 2007-08 post-election violence that left more than 1 000 people dead and displaced several hundred thousand – are the first suspects indicted by the ICC to be elected to lead a country. To most people outside Africa, Kenyatta’s election was proof that Africa is incapable of prosecuting war criminals.

But African leaders viewed it as evidence of the ICC’s bias against Africa, and have used Kenyatta’s victory to amplify their criticism of the court. Ugandan President Yoweri Museveni labelled the ICC a tool of Western powers, aimed at installing their preferred leaders in Africa and eliminating those “they do not like”. By electing war-crimes suspects, the argument goes, Kenyans have rejected the ICC.

Split Views

This claim was strengthened in early September, when, for the second time, Kenya’s parliament approved a motion to withdraw from the Rome Statute, which established the ICC. (The parliament passed a similar resolution in 2010, but then-President Mwai Kibaki did not act on it.)

By the time the AU acted, criticising the perceived bias of the ICC, support for the court had waned enough that African leaders knew that they had leverage. The 54-member AU considered voting as a bloc to withdraw from the Rome Statute, but decided instead to demand that the ICC halt the prosecution of sitting heads of state.

Moreover, the AU requested that the ICC delay Kenyatta’s trial, owing to the unusual nature of the case against him. Unlike the other ICC suspects, Kenyatta and Ruto committed their alleged crimes not while commanding armies, but during the spontaneous violence that erupted after the elections.

More unusual is that Kenyatta and Ruto were electoral rivals at the time, joining forces only last year. Kenyatta’s supporters laud the former rivals for overcoming their differences to form a government, citing it as proof that the African tradition of reconciliation works – another reason the ICC should drop the case.

Kenyans, however, are split on this issue, as I saw firsthand on recent trips to Nairobi and rural areas. “They should just leave us alone,” one woman told me. “They should respect our votes.”

But Kenyatta’s opponents continue to demand justice for the victims of the post-election violence. In Nairobi, one man insisted that no one should be above the law. “All this talk about the ICC being a foreign court,” he said, “is an excuse to let people get away with killing innocent people.”

For now, the ICC has agreed to excuse Kenyatta from attending most of the trial, which was recently postponed and is now set to begin on February 5, 2014. The Kenyans I spoke with – including Kenyatta’s detractors – seem dubious about a conviction.

Positive Impact

Regardless of the case’s outcome, however, it will almost certainly have a positive impact on Kenya – and Africa more broadly.

Indeed, Kenyatta’s indictment is already shaping his behaviour, potentially making him Kenya’s gentlest president. His approach so far is very different from that of his predecessors, including his father Jomo Kenyatta, the founder of modern Kenya, who was notorious for openly threatening his opponents with the words, “Nitawasaga kama unga” (I will grind them like flour).

Opponents of President Daniel arap Moi, who succeeded the elder Kenyatta, were not safe, either; there were even government torture chambers operating in the basement of a skyscraper in downtown Nairobi. Kenya’s last president, Mwai Kibaki, was known for his affinity for verbal abuse.

By contrast, Kenyatta never uses vulgar language in public. Moreover, he works to negotiate with – and persuade – his opponents. For example, rather than sending the police to end a recent teachers’ strike, as his father would have done, Kenyatta urged the strikers to return to work, assuring them that, though the government could not meet all of their salary demands immediately, it was willing to negotiate.

Kenyatta is much younger than his predecessors, but that alone probably does not account for his diplomatic approach to governance. In fact, his rejection of rule by violence may reflect the recognition that the ICC indictment has attracted the world’s attention.

Even the suggestion of brutality would give Kenyatta’s detractors a reason to say, “We told you so.”

In fact, Kenyatta might feel compelled to maintain his political style even if he is acquitted, in order to prove to the world that the court made the right decision. In doing so, he would raise the bar for future Kenyan presidents. In this sense, the ICC’s indictment of Kenyatta may well advance Kenya’s development toward robust democracy.

– Project Syndicate

– Juliet Torome, a writer and documentary filmmaker, was awarded Cinesource Magazine’s first annual Flaherty documentary award.