As expected, the African Union (AU) has voted in support of Kenyan president Uhuru Kenyatta and his deputy William Ruto not honouring their appearance at the International Criminal Court (ICC) at The Hague in the Netherlands.
At its summit in Addis Ababa, Ethiopia last weekend, the AU asked the ICC to defer the hearing to allow Kenyan leaders to govern and restore order and peace in their country.
Kenyatta and Ruto were indicted by the ICC in connection with “crimes against humanity” for allegedly instigating and perpetrating violence during the ill-fated 2007 elections in Kenya where thousands died and many more were injured and displaced.
Predictably, the decision by the AU has invoked mixed feelings. On the one side, human rights activists and a number of western countries see this as a blatant failure by Africa to root out rogue leaders.
On the other hand, this has been hailed by others as a belated but welcome strong message to the ICC to get its hands off Africa. This group argues that the ICC seems biased against Africa and the developing world, while ignoring what they believe are atrocities committed by western countries.
On the face of it, this group seems to have a case. If you look at people indicted by the ICC since its formation, all 32 are from Africa. Although former Chilean dictator Augusto Pinochet was once indicted, he died before standing trial.
The ICC has just convicted former Liberian leader Charles Taylor for war crimes he was sentenced to 50 years in jail. This is arguably the biggest sentence ever meted out by the ICC.
Africa rallying behind Kenyatta and Ruto does not come as a surprise. In 2009, when the ICC indicted Sudanese leader Omar al-Bashir for war crimes, crimes against humanity and genocide, African leaders refused to recognise this indictment and cooperate with the ICC to apprehend al-Bashir, who is still cited as a fugitive from the law.
But it does not need a brain surgeon to really figure out what is at the heart of Africa turning against this United Nations body.
It cannot be said that the AU is philosophically supporting rogues or condoning crimes against humanity or even genocide.
The AU itself was founded on the principle of ending wars on the continent. Its founding documents condemn dictatorships, coups, genocide and xenophobic attacks.
Of course in reality, African leaders continue to be toothless against dictators, war-mongers and terrorists that take power by force.
Yet there are many African countries that are peaceful and democratic. In fact, these are in the majority. But the unstable countries tend to be the biggest and wealthiest in terms of mineral resources.
At the heart of Africa’s beef with the ICC is the fact that crimes committed by the west in ‘peacekeeping’ missions are exempted, thereby exonerating leaders such as former US president George Bush and former UK Prime Minister Tony Blair.
African leaders – and indeed those of many other countries in the Middle East and Asia – contend that Bush and Blair, and other western leaders who supported the invasion of countries like Iraq and Afghanistan, also be indicted for crimes against humanity.
They argue that Bush’s attack on Iraq, on what is now accepted as a false pretext of stopping the late Saddam Hussein from using ‘weapons of mass destruction’, is worthy of an ICC indictment.
But the US made sure this would never happen. It opposed the ICC from the very beginning, only signing up right on deadline in December 2000. But two years later, Bush ‘unsigned’ the US out of the ICC, even threatening military force if US nationals were ever held by the court.
To placate the US, in July 2002, the UN Security Council agreed to exempt peacekeepers from prosecution by the ICC. This was after the US had also threatened to withdraw military aid for countries that would not guarantee US immunity from prosecution by the ICC.
With the aforementioned immunity, it means that none of the countries that export wars into other countries, in the name of peacekeeping, will ever be subjected to the ICC.
This is in spite of some of the worst recorded atrocities committed by the nationals of these countries in carrying out their ‘peacekeeping’ activities in foreign lands.
Such immunity is what weakens the legitimacy of the ICC to bring to book bad apples in Africa and elsewhere in the world. In fact, in this case, the biggest loser is the ICC and the innocent victims of war criminals all over the world.
What is the solution though for Kenya and other countries in similar situations?
Assuming they are guilty, to argue as the US does, that Kenyatta and Ruto should be allowed to rule until the end of their term before facing justice, is akin to allowing a rapist finish brutalising a woman before apprehending him.
But even if they are not guilty, Kenyatta and Ruto must at least answer questions and then their innocence, sooner rather than later. To argue that their indictment will destabilise Kenya is making them more important than the healing Kenya needs.
Maybe the solution to Africa’s woes lies in the AU starting its own criminal court, and doing here what the ICC is trying to do in The Hague.
But what are the odds?