To go or not to go to the ICC is the big question

The African Union has had its say that Kenya’s President Uhuru Kenyatta should not attend trial at the International Criminal Court (ICC) until applications before it to defer the case are acted upon. Its attendant appeal to the UN Security Council notwithstanding, even as the debate rages about the merits of the AU stance towards the ICC, President Kenyatta and his Deputy’s case will remain instructive for the precedence it is setting for Africa and the World with The Hague Court. The central role in the international justice system to end impunity is based on the principle that everyone, no matter the station, must answer for his actions. This cannot be a bad thing. But how to balance this with the political reality that the leaders must be allowed to lead their country in the consolidation of peace and reconciliation, as well as democracy and development, as per the sovereign will of their people expressed in the elections that sanctioned their leadership? It becomes something of the legal and political conundrum that is now playing out regionally and internationally. If, with the deferral of trial for a sitting Head of State, justice will be served in the end after his term, why not let it be? The AU Resolution after the Addis Ababa Summit last Saturday read: “No charges shall be commenced or continued before an international court or tribunal against a serving president or senior member of a government in power.” The argument informing the resolution was derived from both local and international laws which give immunity to sitting presidents and high-level government officials and provides that they can only be taken before a court of law once out of power. All presidents, prime ministers and representatives of government at the meeting, except for Botswana, appended their signature to the resolution. It is notable that all the 15 member states to the UN Security Council visited Addis Ababa just before the Special AU Heads of State Summit and held consultations with the AU Commission president, Nkosazana Dlamini-Zuma. Under Article 16 of the international court’s founding treaty, the UN Security Council can call on the ICC to suspend any case for a year at a time. This can be invoked on grounds of threats to peace and security, which appears apt in light of the threat posed by al Shabaab, which claimed responsibility for the recent Westgate Mall attack, and al-Qaeda, which are a threat to regional and global security. As requested by the AU Summit, Kenya has formally made an application to the UN Security Council seeking the deferral of the cases against President Uhuru and his Deputy. This will follow similar requests for deferral by the Kenyan Government, the first in January 2011 and another in May 2013, both of which were declined. What has changed this time, as recently reported in British media following the AU Summit, is that a number of Western diplomats were preparing a UN Security Council resolution asking for President Kenyatta’s case to be put off for a year. However, should the Security Council turn down the request, the AU says it will approach the ICC seeking to have the trial date postponed to give chance to the Trial Chamber and the Appeals Chamber to rule on the pending applications. If this fails, it will call another special summit and decide on the next step, which may as well be mass withdrawal from the Rome Statute. On a lighter note, perhaps the political histrionics that Kenyans are used to are not for nothing, after all. As Jeff Koinange, the popular Kenyan TV anchor, wondered to his guests in jest on his trade-mark interview bench, it is probable the ICC “picked the wrong country” to experiment with. That was a joke. But the AU getting its way on sitting Heads of States not facing the ICC will set a precedent that is not already unknown in local and international law. This will be one of the reasons President Kenyatta’s case will remain instructive. The writer is a commentator on Rwanda and regional affairs. Twitter: @gituram