Muddled AU thinking

17 October 2013

MANY of us must have slightly mixed feelings about the African Union resolution that no serving AU Head of State should be required to appear before any international court or tribunal during their term of office.

This issue is not as clear-cut or simple as it may seem and one therefore hesitates to rush to judgement.

For too long the AU and its predecessor the OAU operated as an exclusive old-boys club of dictators and kleptocrats, more interested in scratching each other’s backs than the welfare of their people.

The latest AU resolution on the International Criminal Court is typical because it is more about African leaders protecting each other than upholding important principles.

The AU failed to make a distinction between serving heads of state that have allegedly committed crimes in the past and those involved in the commission of ongoing crimes.

The AU has done a great disservice to Uhuru Kenyatta’s name and reputation by lumping him together with Omar al-Bashir.

The charges brought against Kenyatta by the ICC seem vague and unsubstantiated and a strong possibility exists that the ICC might never prove a case against him.

This is probably why Kenyatta has appeared more than willing to cooperate with the ICC.

The charges against Omar al-Bashir on the other hand seem well documented, credible and firmly based on facts.

To make matters worse al-Bashir might be engaged in the commission of ongoing crimes – if not in Darfur this time around, then in South Sudan.

The AU demand for blanket postponement of cases for serving heads of state is a mistake because you cannot defer trial for those guilty of ongoing crimes.

Most countries apply the principle of ‘executive privilege’ within their own jurisdictions.

In terms of this principle, you cannot subject an incumbent head of state to prosecution for acts performed in the execution of his or her lawful constitutional duties.

The demand by the International Criminal Court (ICC) that Kenyan president Uhuru Kenyatta should abandon his post to appear before the court at The Hague therefore seems slightly irrational.

It seems illogical to expect him to abandon his duty to serve the Kenyan people, imposed on him by that country’s constitution, simply to satisfy the whims of the ICC.

The ICC, whether fairly or unfairly, has attracted a great deal of criticism and suspicion on the African continent.

It has not escaped anyone’s attention that of the 32 people the ICC has indicted so far all 32 come from the African continent.

The Rome Statute of 2002 established the ICC as a permanent tribunal with the mandate to prosecute individuals for genocide, crimes against humanity, war crimes and from 2017 onward the crime of aggression.

The criticism of the ICC may be misdirected, and we should perhaps rather blame two other underlying factors.

One is the inexhaustible cunning, deviousness and duplicity of the West and secondly our own naivety and gullibility because we fall for their tricks every time.

The western powers timed the creation in 2002 perfectly from their point of view.

They knew that the threat of genocide, crimes against humanity and war crimes had subsided in most parts of the world, and that they now largely occurred only in Africa.

Yes, the ICC has flaws, because it operates on the unwritten and unspoken principle of might versus right.

They further knew that African states are weak economically and militarily, and therefore susceptible to external pressure.

In practice, they knew that the court would never have the power to indict US President George W Bush for war crimes, or the leader of any other major power.

However, this in itself does not discredit the idea of an International Criminal Court in its totality.

The principle still stands that genocide, crimes against humanity and war crimes should not go unpunished wherever they may occur, whether in Africa or elsewhere.

In the final analysis, let’s also not forget that the 32 people the ICC has indicted have allegedly committed crimes against us – the African people – and not people in the West.



The Windhoek Observer is an English-language weekly newspaper, published in Namibia by Paragon Investment Holding. It is the country's oldest and largest circulating weekly.

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