Public opinion is polarized in Kenya between those who are in favour of the move to withdraw from the ICC and those opposed to it. Opposition MPs opposed to the motion staged a walkout in parliament leaving the majority of MPs of the ruling Jubilee Coalition to approve it.
President Uhuru Kenyatta and vice president William Ruto, had been indicted by the ICC allegedly for bearing the greatest responsibility for Kenya’s post-election violence of 2007/8. An orgy of ethnic bloodletting that engulfed Kenya following disputed election results in which thousands were killed and thousands more displaced from their homes. Many of victims are still held in camps waiting to be resettled.
Kenya’s decision raises the question whether African governments consider implications of international treaties before appending their signatures to them. It also highlights the dilemma facing Africans on how to deal with leaders who commit crimes against their own people. Only when a country’s authorities are incapable or unwilling to prosecute those who have committed such crimes can the ICC step in. That was the case in Kenya where attempts to prosecute those found responsible for the mayhem locally had failed largely due to the opposition of some Kenyan politicians.
Ironically many of those initially opposed to trying the suspects locally have also taken to opposing their trial at The Hague. In the wake of the post–election violence, the former UN Secretary-General, Kofi Anan, was asked to intervene along with a number of eminent Africans to resolve the conflict. A power sharing agreement was later signed with Kibaki as president and Odinga as prime minister.
In the run-up to the elections of March 2013, the issue of The Hague trial loomed large and became caught up in Kenya’s notoriously ethnically-driven politics. Kenyatta and Ruto the two indicted officials portrayed themselves as victims of Western imperialism.
The Barack Obama administration in the U.S. did not help matters when Johnny Carson, assistant under-secretary for African affairs famously reminded Kenyans that ‘’choices have consequences’’, a veiled threat that they should not to vote for those indicted by the ICC. Not surprisingly, Kenyatta and Ruto, members of Kenya’s two largest ethnic groups, the Kikuyu and Kalenjin respectively, emerged victorious.
While Kenyan politicians were bickering over whether to withdraw from the ICC they appeared to have lost sight of the plight of the victims of the post-election violence who deserve justice.
Ever since the ICC indicted the president of Sudan Omar el Bashir, over alleged crimes against humanity arising out of the conflict in Darfur and issuing a warrant for his arrest, the ICC has come in for sharp criticism for targeting Africans and allegedly engaging in selective justice, prompting the AU to urge African states not to cooperate with the ICC.
For a continent riddled with acts of impunity by its rulers, the AU should evolve mechanisms to prosecute indicted persons in Africa. It can take a cue from the case of Hissene Habre, former Chadian dictator, who ruled Chad from 1982-90. Exiled in Dakar for decades and indicted for crimes against humanity, it was at the instance of the AU that the Senegalese government, after years of prevarication, recently constituted a special court to prosecute Habre in Senegal.
This could be a model for others to follow but there are no easy answers to the problem. Africans deserve better treatment from their leaders and those who commit crimes against their own people ought to be brought to justice, preferably on African soil.