ADDIS ABABA — Africa’s relations with the International Criminal Court (ICC) are in tatters after a special summit of the African Union (AU) resolved that cases against the presidents of Kenya and Sudan should be deferred and that serving heads of state and government should be immune from prosecution.
President Jacob Zuma was one of an estimated 14 African leaders out of a possible 54 who attended the one-day summit in Addis Ababa. The exact turnout was unknown because the organisation does not publicly announce who has come to its summits.
Kenya had pushed for the meeting to be held and President Uhuru Kenyatta was smiling afterwards. The ICC has charged him and his deputy, William Ruto, with crimes against humanity over the ethnic killings of about 1,200 people immediately after the December 2007 elections in Kenya.
President Omar al-Bashir of Sudan, who has refused to co-operate with the ICC and is wanted for war crimes, also attended the summit.
Mr Ruto’s trial at The Hague has already begun, although he is free to shuttle to and from the Kenyan capital, Nairobi. Mr Kenyatta and Mr Ruto said before their election in March that they would fully co-operate with the ICC but there is little likelihood now that the president of East Africa’s most important country will attend the scheduled opening of his trial on November 12 — if it takes place at all.
Leaders asked Kenya to apply to the United Nations Security Council for a deferral of Mr Kenyatta’s trial. Ethiopian Foreign Minister Tedros Adhanom said if a decision was not made by November 12, Mr Kenyatta would not go to The Hague.
“What the summit decided is that President Kenyatta should not appear until the request he has made is actually answered. That’s a united voice and I hope this time there will be a positive response,” Mr Tedros told reporters, alluding to assertions that African appeals to the ICC and the Security Council have not been answered.
The ICC had no public response on Sunday to the hard-nosed AU position. The court has sweeping powers to arrest recalcitrant defendants and witnesses. But it has been mostly silent or passive during the past weeks and shown no stomach so far for a confrontation with the AU.
South Africa played its cards close to its chest before the summit, with International Relations and Co-operation Minister Maite Nkoana-Mashabane refusing last week to even hint about the government’s position. But when Mr Zuma was in New York two weeks ago, he was critical of the court and its treatment of Mr Kenyatta, telling South African journalists it would not be “in keeping” to oblige a president to sit through every day of his trial.
Since the post-election violence in Kenya, not a single defendant has been successfully prosecuted for any of the killings.
Before the summit there were unattributed suggestions from African government sources that AU member states who are also ICC members — 34 of them — might withdraw from the court en bloc, invoking its alleged bias against African leaders. The court has opened investigations in eight countries and publicly indicted 32 people, all of them African.
A resolution calling for a walkout failed to transpire at the summit and diplomats said that outcome was never on the cards. But Mr Tedros said the threat was “still on the table”.
The summit’s final declaration called for immunity of serving heads of state and government, saying their absence for court appearances “could undermine the sovereignty, stability and peace in that country and in other member states.…”
This clause will raise eyebrows because of fears that African presidents who face prosecution will prolong their terms of office for as long as possible.
The AU denies it wants immunity for African leaders, but after this summit many human rights groups will beg to differ and side with Archbishop Desmond Tutu.
“The ICC is the world’s first and only global court to adjudicate crimes against humanity,” the archbishop said last week. “But leaders of Sudan and Kenya, who have inflicted terror and fear across their countries, are trying to drag Africa out of the ICC, allowing them freedom to kill, rape and inspire hatred without consequence.”
Former United Nations secretary-general Kofi Annan also spoke out against a pullout: “If they fight the ICC, vote against the ICC, withdraw their cases, it will be a badge of shame for each and every one of them and for their countries.”
About 142 African human rights and activist groups called on the leaders to support the Hague-based court. “We believe any withdrawal from the ICC would send the wrong signal about Africa’s commitment to protect and promote human rights and reject impunity,” the organisations said on Monday in a letter to AU foreign ministers.
Mr Annan said the court was a last resort after African governments had failed to deliver justice for heinous crimes against humanity. And he rejected the criticism that some have levied, notably in Kenya, that ICC trials could undermine peace and stability.
“On a continent that has experienced deadly conflict, gross violations of human rights, even genocide, I am surprised to hear critics ask whether the pursuit of justice might obstruct the search for peace,” Mr Annan said.
AU protocol sources said 14 heads of state were present from Uganda, Ethiopia, Somalia, Kenya, Sudan, Djibouti, Tanzania, Rwanda, Namibia, South Africa, Zimbabwe, Gambia, Côte d’Ivoire and Nigeria. The leaders agreed to reconvene at the end of next month to discuss progress.