Human rights groups see two pivotal moments in the mounting of resistance to the International Criminal Court in Africa. Both involve the indictments of sitting heads of state.
“If you look at the history of the pushback of the ICC by the AU (African Union), it dates back to the time the arrest warrant was issued for Omar al-Bashir and then subsequently on the Kenyan officials,” said Netsanet Belay, Africa director of research and advocacy for Amnesty International.
“We believe there is no legal or normative reason to support the impunity of heads of state of governments, especially when it comes to crimes against humanity,” Belay added.
Still in office
The cases against Kenyan President Uhuru Kenyatta and his vice president, William Ruto, in relation to the 2007-2008 post-election violence, were dropped for lack of evidence in 2014 and 2016. Kenyatta is running for re-election this year.
The Sudanese president, Bashir, remains in office as well. Since 2009, when Bashir’s international arrest warrant was issued, he has visited at least 18 countries, 11 of them in Africa. He was charged with genocide, war crimes and crimes against humanity in connection with the conflict in Darfur.
Prosecuting sitting heads of state is complex, with some arguing it undermines stability.
Andile Mgxitama is the leader of the advocacy group Black First Land First in South Africa.
“If for stability and progress, we need to forgive those who transgress against us amongst ourselves, we will do so,” Mgxitama said. “We should not put ourselves in a position where Europe says we must attack every one of us, and we do so even in a context where maybe rather dialogue or reconciliation is a better proposition than putting people on trial or going after them and so on.”
African alternative
South Africa was among the three African countries that said last year they would withdraw from the ICC. Critics say the ICC unfairly targets Africans. All 39 of the people indicted since the court’s establishment in 2002 have been African.
As resistance has grown, the continent has sought to create its own alternatives to the ICC.
The current option on the table is the African Court of Justice and Human Rights.
In 2014, African Union heads of state adopted what is called the Malabo Protocol to extend the court’s jurisdiction to include an international criminal law section.
The protocol also gives immunity to sitting heads of state.
Rights groups object
For that and other reasons, rights groups have urged African countries not to ratify the protocol.
“With the African Court, it means that with this immunity clause, you cannot have a real-time response. You have to wait until this individual is not in office to even commence any type of prosecutions against him,” said Stella Ndirangu, program manager for the International Commission of Jurists in Kenya.
And for Zimbabwean politician Ngqabutho Mabhena, that could push African leaders to cling to power, even more than some already do.
“If the president commits a serious crime, he will not want to vacate office, then he creates patronage within people that are around them or him, for them to continuously stay in power so that they avoid getting out of office,” Mabhena said.
So far, nine African countries have signed the Malabo Protocol, but no country’s parliament has ratified it. The protocol won’t take effect unless 15 AU member countries ratify it.
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