Continued Rejection of the ICC in West and East Africa

It is not new to read of African governments ignoring or rejecting the International Criminal Court (ICC)’s claims to jurisdictional authority. But two stories this week reinforce the idea that many key players on the continent are willing to cross the Court.

First is Sudanese President Omar al Bashir’s attendance at an African Union summit in Abuja, Nigeria. The ICC issued a warrant for Bashir’s arrest in March 2009, in connection with war crimes in Darfur. His travel itinerary since then charts a map of ICC rejection across Africa and beyond. While Nigeria is the first West African nation to host Bashir, it joins a trend that includes several other countries and the African Union itself. From the BBC:

Mr Bashir has visited numerous African countries since the arrest warrant was issued – including Ethiopia, Kenya and Djibouti.

Only Botswana and Malawi have threatened to arrest him.

In May, the AU called on the ICC to drop war crimes charges against Kenya’s President Uhuru Kenyatta after accusing it of “hunting” Africans because of their race.

Mention of Kenya brings us to the second news item from this week: Yesterday, the ICC rejected another request from Kenyan Vice President William Ruto, who like Kenyatta faces charges at the Court, to hold his trial in Africa.

The election, in March of this year, of Kenyatta and Ruto seemed a rebuke to the Court. Both men have been under indictment since March 2011 in connection with election/post-election violence in 2007-2008. David Bosco, writing shortly before Kenya’s most recent election, spelled out some potential consequences that a Kenyatta victory might have for the Court. One of these is particularly noteworthy in light of the Court’s decision on Ruto’s request for a trial location change:

That a freshly elected African head of state will bear the burden of ICC indictment would likely worsen already poor relations between the court and African officialdom. Many African leaders have argued that the ICC, which to this point has indicted only Africans, systematically ignores crimes committed in other parts of the world. At various points, African leaders have discussed withdrawing en masse from the treaty that created the court or, more likely, empowering a regional court to investigate atrocities, thereby displacing the ICC.

The ICC’s decision to keep Ruto’s trial in The Hague may strengthen such sentiments among some African leaders.

From both Nigeria and Kenya, then, I see fresh examples of the difficulty the Court is having in achieving legitimacy and recognition in Africa.

Africa News Roundup: Traore Returns to Mali, Constituent Assembly Meets in Somalia, Senegal Boosts Electricity, and More

Mali’s interim President Dioncounda Traore returned home yesterday from France, after a two-month recuperation.

In Somalia, the National Constituent Assembly “began a marathon-nine-day meeting on Wednesday to debate on a provisional constitution, before final ratification by a national referendum.” This is a critical step in the transition process, though it comes behind schedule.

AP on evictions in the Makoko area of Lagos, Nigeria:

Makoko is a sprawling community of bamboo homes and shacks built out of driftwood, close to the University of Lagos campus and visible to daily traffic that plies the Third Mainland Bridge, the link from the mainland to the city’s islands. Those living in Makoko subsist largely as fishermen and workers in nearby saw mills, cutting up water-logged timber that’s floated into the city daily. Some work jobs outside of the slum as gate guards and in other industries, though most live almost entirely within its watery boundaries.

The people of Makoko have created their own life independent from the state, with its own schools and clinics, however ill-equipped. Commerce goes on in its creek alleyways as women sell sizzling dishes and goods from canoes. Others sell videos and telephone airtime cards from the shacks just above the waterline, where a maze of wooden planks connects the homes.

Senegal has received an $85 million loan to help boost electricity.

The Guardian: “Burkina Faso’s School for Shepherds Thrives”

Kenyan presidential candidates Uhuru Kenyatta and William Ruto, even if one of them is elected in March 2013, would still have to stand trial at the International Criminal Court, where they face charges of fomenting post-electoral violence in 2007-2008.

After a strike that cost twelve production days, work has resumed at First Quantum’s Guelb Moghrein mine.

What else is going on?

International Crisis Group on Kenya and the ICC

The International Criminal Court (ICC) is currently holding trials for six Kenyans accused of fomenting ethnic violence following Kenya’s 2007 elections. Several of the “Ocampo Six” (so named because of the ICC’s Chief Prosecutor Luis Moreno Ocampo) are prominent politicians, and two – Uhuru Kenyatta and William Ruto – are candidates in the presidential elections scheduled for this December. The case has already caused major controversy in Kenya, and has the potential to significantly affect the campaign this year – including by stoking ethnic tensions. Whether the ICC likes it or not, by virtue of its work it is a political actor. In the case of the Ocampo Six, the politics of the ICC’s action feel wrong to me, at least as far as peace in Kenya is concerned.

The International Crisis Group (ICG), an organization I very much respect, has put out a thoughtful report sounding a note of caution about the case and its potential impact. Three key sentences from the report read,

These cases have enormous political consequences for both the 2012 elections and the country’s stability. During the course of the year, rulings and procedures will inevitably either lower or increase com­munal tensions. If the ICC process is to contribute to the deterrence of future political violence in Kenya, the court and its friends must explain its work and limitations better to the public.

I would recommend reading the briefing in full. Given the political reality that the case is likely to go forward, ICG takes the practical approach of giving suggestions to both the ICC and the Kenyan government for how to minimize the potentially incendiary effects of the case. In my view the recommendations are sound.

I am glad to see this kind of direct and pragmatic discussion of the ICC’s political role. The conversation about the politics of the ICC’s actions is not new – Alex de Waal and Julie Flint, in particular, began making incisive critiques of the ICC’s indictment of Sudanese President Omar al Bashir several years ago – but ICG’s contribution is timely and will likely make new audiences consider these important issues.

Kenya: Ruto, Sang, and Kosgey Back to The Hague for ICC Confirmation of Charges Hearing

September will mark a new phase in the International Criminal Court (ICC)’s legal proceedings against six Kenyans accused of fomenting post-election violence in 2007-2008. From September 1-12, three of the six (William Ruto, Joshua Arap Sang, and Henry Kosgey) will attend “confirmation of charges” hearings in The Hague, where the ICC will determine whether enough evidence exists to go forward with a trial. Later in the month, the three remaining suspects (Uhuru Kenyatta, Francis Muthaura, and Hussein Ali) will undergo the same process.

A key question going forward will be whether, and how, the ICC case affects Kenya’s internal politics.

Profiles of all six suspects are available here, but two suspects, Ruto and Kenyatta, are prominent candidates in the 2012 presidential race, and are also participants in key struggles taking place in the present. Ruto is the head of a dissident faction within the Orange Democratic Movement (ODM), the party of Prime Minister Raila Odinga. Odinga has moved to kick Ruto out of both the party and the new cabinet. The ICC indictment may have weakened Ruto’s position politically, but Ruto remains defiant, saying that he will run for president even if the trial is still ongoing. Kenyatta, meanwhile, survived the cabinet reshuffle, keeping his position as Finance Minister and remaining a major player in Kenya’s inflation crisis. President Mwai Kibaki may have been willing to sacrifice Ruto for a better relationship with Odinga and a shot at a legacy less tarnished by the 2007-2008 violence, but Kenyatta, ICC indictment notwithstanding, seems “too big to fail.” And though, as Reuters points out, Odinga has a lead in the polls, “his rivals’ combined support could unsettle him.” One source argues that a Kenyatta-Ruto “coalition of the damned” could beat Odinga, and put someone else – presumably Kenyatta – into the president’s seat next year.

As Ruto, Sang, and Kosgey head to The Hague this week, it will be important how their constituencies react. Ruto’s prayer rallies have generated press coverage, as have his remarks calling on other ODM leaders not to support the ICC case. These remarks underscore the potential of the ICC case to heighten tensions within and between parties, and between the country’s different ethnic groups.

NTV Kenya has a video report on the ICC case:

“Ocampo Six” Return to Kenya

On Thursday and Friday of last week, six Kenyans appeared in front of the International Criminal Court (ICC), which has charged these men with fomenting post-election violence in 2007-2008. The legal proceedings will continue for some time, but for now the “Ocampo Six” (so named for the ICC’s chief prosecutor) are back home. One of the first steps two of the suspects, Deputy Prime Minister Uhuru Kenyatta and suspended minister William Ruto, took yesterday was to headline a rally. The tone of this event contrasted with earlier events, but the rally still underscored how politicized the trial has become in Kenya.

Reuters:

Before attending the ICC hearing, Kenyatta, who is also deputy prime minister, and Ruto had criss-crossed Kenya holding raucous rallies calling for their cases to be held in Kenya. They accused their political rival, Prime Minister Raila Odinga, of implicating them.

The ICC barred the suspects from making “dangerous speeches” to incite violence or they would face arrest. Kenyatta and Ruto took a conciliatory stance in their speeches at the rally, a far cry from their comments before their ICC appearance.

The ICC can take heart from Kenyatta and Ruto’s new tone. But one question that came to my mind was whether the politicization of the trial – or the outcome – could negatively affect Kenya’s 2012 elections, in which Kenyatta may be a leading candidate. Legal proceedings, after all, are not isolated from politics, especially in this case. And Kenya remains divided:

Kenyans thronged to the rally by bus and on foot. Police estimated the crowd at about 35,000.

“If the cases are confirmed and go ahead at The Hague, there could be big problems. Without Uhuru, we won’t have elections,” said a Kenyatta supporter, John Waweru, 30.

Despite the heroes’ welcome from supporters, most of the east African country’s 40 million people backed an ICC hearing, while support for the case to be heard at a local tribunal had dropped since a previous survey in December, according to a poll published last week.

“Tuko Pamoja!” (We are together), said one placard; “Uhuru for president in 2012″ said a slogan emblazoned on the torso of one shirtless supporter who had painted his body white.

The return of Kenyatta and Ruto has already prompted some violence, as NTV Kenya reports: