By John Amoda
THE Guardian Tuesday May 28 2013 carried a story recording the African Union outrage on the ICC’s global prosecution of those charged with crime against humanity. The African Union, reports The Guardian, “has accused the International Criminal Court (ICC) of “hunting” Africans because of their race and hence, it expressed opposition to plans by the Court to try Kenya’s President Uhuru Kenyatta on charge of crimes against humanity.
The chairman of the body and Ethiopia’s Prime Minister Hailemariam Desalegu, who disclosed this yesterday at the end of The AU Summit said African leaders would raise their concerns with the United Nations (UN)… Kenyatta is due to be tried in July on charges of crime against humanity.”
The African Union’s position in no way is taken as dismissal of the charge against the Kenyan President. It has stated that such crimes to which Uhuru Kenyatta is possibly culpable should be prosecuted by the Kenyan Courts. The reality of such alternate suggestions of venue for the trial must be accepted. The Government of Kenya is not likely to convict the President on what is a political charge, a crime arising out of electoral conflicts.
Is it not this probability that ‘crimes against humanity are not likely to be justly prosecuted by National Courts that led to the establishment of the ICC in the first place? Africa has recorded more than its share of conduct that can be described as crimes against humanity.
We only need to remember the course of conflicts in Somalia, Sudan, Rwanda, Sierra Leone, and Liberia to be aware of their genocidal consequences. Such crimes have been recorded in Balkan’s Central America and in the regime change conflicts of Libya, Iraq, Afghanistan and in the ongoing Civil War in Syria and the Arab- Palestinian conflicts.
Africa’s disquiet concerning the history of the ICC thus far is accounted for principally by two noticeable facts:
(1) That the ICC has not brought such charges and sought to try the Heads of Governments of the major powers like US and Russia.
(2)That Africans are preponderantly the ones so charged.
“The British Broadcasting Corporation (BBC) cited Haile-mariam as saying at the AU submit in Ethiopia’s capital, Addis Ababa, that African leaders had expressed regret that out of those indicted by the ICC, “99 percent are Africans.” Why is this the case? Is this a reflection in the international societies of a racialist structure of power where the courts disproportionately indict and convict the weak while being protective of the strong? Perhaps, this disproportion in the indictment and conviction rates is what has led the African Leaders to draw the conclusion that the bias of the ICC is a reflection of the racialist infrastructure of the ICC ‘jurisprudence’
I believe the AU have good grounds to be worried about this imbalance in the ICC “judgments on the issues of crimes against humanity but I also believe the AU’s case be better argued. The first port of call in the argumentation is the issue of what constitutes the humanity that is the aggrieved. What is this humanity? Is it an abstract concept? Is it a codification of the human conscience about human rights? Should not the victim of the crime against humanity be the specifically affected by the conduct of the “Criminal”.
The Guardian’s quote of the AU Chairman in this regard is relevant to the question of whose humanity had been affected by the crime. “According to the Chairman, the ICC is “chasing” Kenyatta and his deputy William Ruto, despite the fact that the rival Kalenjin and Kikuyu ethnic groups- who had fought after the 2007 election had come together to vote for him in the March (2013) polls. Kenyatta and Ruto were on opposite sides in the 2007 election, after which some 1,000 people were killed and 600,000 people fled their homes”.
It should stand to reason that it is the process of the electoral contestations of these two rival groups that should be criminalised because of the outcome of their political rivalry. If the two groups who were rivals in 2007 have become partners in the pursuit of their electoral interest in 2013, this fact shows that the two ethnic groups are not in inhuman enmity with each other and that the issue of inhumanity in conduct and the criminalisation of such conduct has to be addressed on a case by case basis most importantly in the specifics of the Kalenjin and Kikuyu contestations. Herein lies a structural problem, that is thus phrased.
If the purpose of the ICC’s criminalisation of the outcomes of particular courses of political contestations is to discourage particular structuring of political rivalries, can the ICC’s objective be realised by law? Can permissible structuring of political contestation be legislated for all countries? And even if this were possible, can autonomy of action in the pursuit of sovereign interests, and interest of sovereigns be legally determined without the ICC becoming the Almighty Sovereign?
There is however the difficulty of attempting to “hold a moon beam” in the hand through post facto criminalisation of political struggles and their outcome by the Court. As the case of the Kalenjin and Kikuyu conflict shows, conduct is not essentialist but situation- specific and the two ethnic groups who were sworn enemies in 2007 are in 2013 political friends.
Third party views of relations between the Kalenjins and Kikuyus differ essentially from parties-in-conflicts views. The question then is why third party interests in specific courses of conflicts should be privileged above the Parties in Conflict Interest in the same course of conflict? Implicit in the fundamentals of the ICC is a superior-subordinate hierarchy of a sovereign court and subject nations. What is defended in the establishment of the ICC is orders of subordination of the lesser powers permitted by the Great Powers whose affairs are outside the practical jurisdiction of the ICC.
This is how African Politicians come to form the core of indictable subjects of the ICC, and why none of the permanent members of the Security Council has been indicted by the Court. We have thus far not addressed the two substantive issues that should constitute the principal objections of the African Union to be discussed with the United Nations. They are namely:
(1)The value of the human in polities national and international(2)Why electoral politics in Africa generate conflicts that easily escalate into vicious courses of war and violence. These issues of values touch on what is substantively the right of communities, nations, imperial states or corporate entities.
We need to be clear on what can be practically considered to be a right that can be qualified as divine, sovereign, national or human. A right can only said to be a right if threatened can be defended by the Owners and when abridged can be restored by the owners of such rights.
A right to life is a right if threatened can be defended by the persons possessing such right and if abridged can be restored by the person possessing such right. It is clear from such usage that a right secured by a third party is not a right but a statement of status, a normative ascription.
The power to secure the right and to defend its abridgment is inherent in the assertion of a right. Rights postulated as a possession of individuals or groups by third parties who are covenanted to defend and maintain that right demonstrably deserve to be defined as right, be it of a class or humanity.
The problem is that there is no Third-Party Agent Covenanted to secure, protect and defend the right of humanity and to place such covenants above its responsibility to its nation. Human Rights are not political rights secured by government as rights have been defined in this essay. Thucydides continues to have the last say-the weak suffer what they cannot avoid, and the strong do what they cannot be prevented from doing.
This addresses the issue of the value of rights, in national and international jurisprudence and diplomacy. The point is that the giving of laws and their implementation are functions of givers not those of subjects. The second issue addresses electoral violence in Africa.
Electoral Contestations escalate into contestation for leadership, because the questions of Who Rules African Countries have remained unresolved and this is so because of the circumstance of the granting independence to countries who were provinces of empires. Decolonization of provinces left unresolved who would rule the ex-colonies! This was the type of decolonization sanctioned by the Allied Powers who also set up the Post World War II Order.
This is why there is much hypocrisy in the assigning of criminality to Africans without the West recognizing why Who Governs Elections In Africa’s Excolonial Countries Become Who Rules Elections. Elections in the West are strictly about office holding at the pleasure of the Electorate.
But make Elections into the British Parliament or the U.S Congress a process of resolving Who Rules the country, elections in the US will be more Kenyan that the election in Kenya because U.S electors control more lethal weapons of war than any African Group of Politicians could ever muster.
The African Union should highlight in their dialogue with the UN the causal responsibility of the Permanent Members of The Security Council for this state affairs in Kenya’s elections in particular and elections in Africa’s ex-colonies in general. This is the argument that is to be made against the granting to the ICC the license to hunt African Leaders who are yet to understand why elections in their domains are always violent.