The ICC Debate in Kenya and Africa is not Ending Soon

As some Kenyans, led by their President, head to Nakuru tomorrow to celebrate their “win” against the ICC, some have argued this is the end of the ICC/Kenya debate. But I do not think the debate on Kenya/Africa and the ICC is about to end soon. In fact, after the so called celebrations by President Kenyatta, his Deputy and some Kenyans on Saturday 16^th April 2016, the debate on issues of the ICC, Africa heads of state, immunity and impunity will only take another long turn.

We must not forget that ICC operates under the principle of complementarity. It is a court of last resort and it only comes in to complement member states which have the responsibility to investigate and prosecute international crimes. The ICC therefore does not assume jurisdiction unless and until the host state proves inability or shows unwillingness to investigate and prosecute such crimes. Africa finds itself in the receiving end not really because anybody or any state is against the continent as some have continuously argued but rather due to the fact that most African countries possess poor mechanisms of justice either because of the ravages of war and conflicts across the continent which leaves behind, weak or non-existent institutions like the judiciary and the police, and also because of lack of judicial independence. It is obvious that weak institutions, personalized and under the patronage of monstrous presidency cannot possibly prosecute perpetrators who still wield power and influence over them. On as far as we have weak institutions in Africa, the ICC will remain relevant on the continent.

It is partly true that African leaders are not really crying foul because the ICC truly unjustly targets Africa but rather because most of them have actually committed crimes against humanity in their own or neighboring countries and they are more and more realizing that they are now being prosecuted under mechanisms which they have no control over. The perpetrators of gross human rights violations are now being held accountable in a forum they cannot manipulate. The view that the ICC is unfairly targeting African is not shared by majority of the African people, it is rather one that is overwhelmingly held by those in power. That is very suspect.

The victims of atrocities committed across the continent know too well that they stand little chance to have justice served them through local and manipulative mechanisms. A good example is Kenya where opinion polls have in a consistent line demonstrated that there is public preference for the ICC over the local mechanisms for the trial of the suspects of post-election crimes. It is more annoying than it is amusing that some Kenyans have been duped to join the African bandwagon crying foul that the ICC is unfairly targeting Africa when actually a Kenyan court has since issued a provisional arrest warrant for President Omar El Bashir should he visit Kenya in the future. 

It is clear to many that as it is the ICC is not a perfect court but we are better with it than nothing and again we have every reason to improve it for purposes for international criminal justice. For instance, it is unfair that the Security Council has a decisive role in referring cases to the ICC or suspending ongoing trials while three of the permanent members of the Security Council (USA, Russia and China) are not Signatories to the Rome Statute. However, in as much as the ICC is not angelic, on the other side of the coin, it is also important to be cautious not to champion impunity by wholesale demonization of the ICC as we have seen in Africa and Kenya in particular. We might live to regret this mockery of the ICC. Methinks instead of African countries (leaders actually) going around and hurling insults at ICC; they should, in fact, embark on a campaign to rally as many countries as possible to join the ICC and to improve the court.

It is true that most of the cases in the ICC are from Africa but there are situations from other countries out of the Continent. These are; (Afghanistan, Colombia, Georgia, Honduras and South Korea). A valid thesis at the moment which should be the agenda is on how better the ICC should endeavor to strike a balance in the regional scope in both its investigations and prosecutions and how efficient can its investigative arm can be. ICC is playing and will continue to play a very important role in ending impunity in Africa. As Abudul Jejan Cole, a former prosecutor at the Special Court for Sierra Leone argued recently: while it is true that the ICC can be lambasted for inconsistent case selection, there is not a single case in the court that one could dismiss as being frivolous or vexatious. They might all be African but they are also all legitimate. It is farcical that we can equate the trial of 25 accused with the trial of an entire continent.