By Udo Jude Ilo

By supporting Kenya’s demand for support against the International Criminal Court (ICC), African rulers have once again demonstrated their inability to uphold human rights and democracy in Africa. And as our rulers go, so goes our continental body, the African Union. Despite the noble promises in its founding statutes, member countries have managed to look the other way and condone impunity. Such”negative solidarity” has been the bane of this continent.

In 2008, Kenya was reduced to a theatre of violence following the declaration of false results in the presidential election which favoured the incumbent President Mwai Kibaki. Kibaki refused calls by the opposition to acknowledge defeat and senior elements in both his party and the opposition coalition went on to organise and fund violence by armed supporters. More than 1,100 people lost their lives, according to Human Rights Watch report and an estimated 400,000 people lost their homes.

The compromise reached was a coalition government with Raila Odinga as Prime Minister and Kibaki as President. Part of the terms of the reconciliation negotiated by Kofi Annan was a mechanism to hold the perpetrators of the violence accountable. Both Kibaki and Odinga committed to the establishment of a Special Tribunal to prosecute perpetrators of the violence. The Commission of Enquiry on Post Election Violence (CIPEV) had recommended strongly the need for a hybrid court comprising both national and international judges to try people indicted for the post election violence. But nearly three years after the 2008 election nothing was done to actualise this recommendation.

Seeing Kenya’s unwillingness to prosecute, Annan provided a list of names of likely perpetrators to the ICC which in turn announced in November 2009 that it would seek authorization to open investigation. The Pre_Trial Chamber, in granting the authorization, rightly found that there was no substantial national action or plan to prosecute people especially those who were high up in government.

In December 15, 2010 the ICC prosecutor announced that he was seeking summons for six people in the ICC’s Kenya investigation. The prosecutor is seeking to bring charges of crimes against humanity against these individuals that include a former minister, a member of parliament, a deputy Prime Minister and a sitting minister of finance. It is a path that Kenyan human rights and justice activists strongly support. But even more important, 70% of Kenyan voters polled say they want the ICC to pursue these prosecutions.

It is against this background that we should consider the heads of states’ resolution: “The Summit supports and endorses Kenya’s request for a deferment of the ICC investigations and prosecutions in relation to the 2008 post-election violence under Article 16 of the Rome Statute to allow for a National mechanism to prosecute the cases under a reformed Judiciary provided for in the new Constitutional dispensation, in line with the principle of complementarity, and in this regard requests the UN Security Council to accede to this request.”

Kenya lobbied the African Union for this support on the grounds that Kenya wants to try the cases within their municipal system. Why, in that case, have two attempts to pass legislation installing a special tribunal been deliberately scuppered by politicians? Why has Kenya waited for nearly three years for an ICC summons before suddenly becoming fans of local justice?

The answer is that those under ICC investigation are senior members of the government and the ruling clique has vowed to keep them out of court and make sure none of them are held accountable. It is not in their interest that these matters should be openly discussed at trial and the full story revealed.

All around Africa, governments have shown uncanny reluctance to abide by the rule of law. The institutions of government are used brazenly to perpetuate impunity and the judicial mechanisms so badly weakened and compromised that they are frequently unable to provide relief. The Rome Statute that established the ICC was adopted to establish a platform complementary to state institutions to redress crimes against humanity and other related offences perpetrated in states where the local institutions proved unable to provide redress. Kenya having signed up to the Rome Statute has a duty to cooperate with the court in investigating and prosecuting the post_election violence. It owes that duty to its citizens but it also has a responsibility to Africa to ensure that impunity in which the institutions of the State are used to commit crimes against humanity will be punished.

The decision of African governments to shield Kenya from ICC intervention is reflective of the half_hearted approach to the promotion of human rights in Africa. Their action will embolden despots and sit_tight leaders to refuse to listen to the voice of their people and pursue political objectives without regard to international and local laws. Ivory Coast is an interesting example. Gbagbo has refused to relinquish power after losing an election and his supporters and security operatives have been unleashing violence on the people resulting in deaths and loss of property. Such acts are carried out because perpetrators believe that they will not be held accountable. The stance of AU on Kenya can only provide further incentive for violence and abuse in Ivory Coast.

Through history, despots have hidden under the veil of territorial integrity and state sovereignty to perpetrate evil. From Zimbabwe to Guinea Bissau, Congo Kinshasa to Tunisia, African leaders have treated state resources and state powers like private property. These actions are granted the imprimatur of the AU through the conspiracy of silence of African countries. There seem to be an unwritten agreement that African nations do not criticise each other. Sadly the comradeship that was sustained by the common enemy of colonialism has become toxic to democratic governance in Africa.

Nigeria should lead

The message from Kenya is disturbingly clear; African countries will help each other avoid accountability when it comes to the issue of international justice. That message should not be allowed to stand. Even if Africa has cause to criticise the way the ICC and its prosecutor Luis Moreno Ocampo have conducted their investigation, that does not justify a wholesale rejection of its role.

Nigeria has provided remarkable leadership in the face-off in Ivory Coast. Nigeria stance is guided by its avowed commitment to democratic governance and protection of human rights. The AU has undermined that message in Ivory Coast both in principle and strategically: in principle because we cannot preach about commitment to rule of law in one country and support its infringement in another, strategically because it shows our unwillingness to see through what we preach. Nigeria should reject the Kenyan position on this matter and mobilize support among African countries to ensure Kenya respects its obligations under the Rome statute. Elections are coming in Nigeria; by upholding accountability in Kenya we will send a message to our politicians that we will not condone electoral violence here at home. Kenya’s post-election experience is also a note of warning to Nigeria that we should get our house together in Jos.

Civil society in Africa should mobilize to condemn the African Union on their position on Kenya. We must speak out to end impunity in Africa. The democracy wave that is pulling down despots across North Africa sends a message of hope that the people can make the difference. Kenya must be held accountable for the post election violence and the internal justice mechanism that Kenya is now forcefully touting is too little too late. We should force our governments to do the right thing.

* Udo is a policy analyst with Open Society Initiative for West Africa (OSIWA)