AU Executive Council Approves Kenya’s Deferment Request

January 31, 2011

On Monday, 31st of January, 2011, the African Union’s, (AU’s), Executive Council voted with approval a resolution to support Kenya’s bid to support a deferral of the impending cases against six Kenyans at the ICC. See story here.  

This makes the Executive Council the second body to support Kenya’s deferral bid. The AU’s Peace and Security Commission approved a similar resolution as noted in a previous post.  

Similarly another regional organization, the Inter-Governmental Association on Development (IGAD), has expressed its support for Kenya’s bid. See previous post.    

The Executive Council of the AU is established under Article 10 of the Constitutive Act of the African Union (which you can find here) comprised of Foreign Affairs Ministers and makes decisions by a two-thirds majority of the Member States. This suggests that there is strong support of the resolution that is now being considered by the Summit of Heads of States and Governments.

Clearly though the Summit has a full agenda on its hands and Kenya’s bid for a deferral is likely to be discussed under other business as the Summit winds down today Monday January 31st, 2011. For the Summit’s Agenda, see here.

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IGAD Supports Kenya’s Bid to Defer Cases

January 31, 2011

The Inter-Governmental Authority on Development, (IGAD), meeting on the sidelines of the African Union Summit yesterday endorsed Kenya’s bid to have the Security Council defer O’Campo’s impending request to have the ICC issue summons against six Kenyans. See story here

Kenya’s strategy not to have to be the one presenting the proposal at the AU Summit but to have it come from another country or organization has therefore come to fruition.

IGAD was created in 1996 to supersede the Intergovernmental Authority on Drought and Development (IGADD) which had been in existence since 1986. IGADD was created to coordinate the efforts of the Member States in combating desertification and promoting efforts to mitigate the effects of drought.  As such, the objectives of IGADD were mainly food security and environmental protection.  The founding members of IGADD are Djibouti, Ethiopia, Kenya, Somalia, Sudan and Uganda, with Eritrea joining in 1993 after attaining independence. 

IGADD, like its successor organization, IGAD, came to be used as a forum not just for dealing with drought and environmental issues but also as a forum for leaders of the countries to tackle emerging socioeconomic and political issues in a regional context.

Although IGAD’s has declared food security and environmental protection, conflict prevention, management and resolution; and economic cooperation and integration as its most significant areas of cooperation, this episode demonstrates Kenya’s propensity to use its weight within IGAD to propel its foreign policy goals.

Kenya has similarly used another regional body, the East African Community, (EAC). About three years ago now, Kenya successfully short-circuited the treaty amendment process in the EAC by successfully lobbying EAC member States, (Uganda, Tanzania, Burundi and Rwanda), to amend the Treaty Establishing the EAC to clip the wings of the East African Court of Justice after it made an adverse decision that Nairobi found intolerable. See analysis here  

IGAD is also one of the pillars of the African Economic Community since it signed the Protocol on Relations between the African Economic Community and the Regional Economic Communities in 1998. On IGAD and other African Regional Trade Agreements, see my forthcoming book, African Regional Trade Agreements as Legal Regimes

In the meantime, President Kibaki’s nomination of a new Chief Justice and Attorney General without consulting the Prime Minister, is one of the primary basis of his (Kibaki’s claim) that Kenya is prepared and willing to try post election violence offenders locally.  Vice President Kalonzo Musyoka’s whirlwind African tour to seek support for the deferral is widely regarded as having  outflanked his partner in the coalition government, Prime Minister Raila Odinga and the cabinet who were not consulted to see if they endorsed this strategy. See analysis here  

President Kibaki’s advisers go even further than simply arguing Kenya can handle the cases without the ICC. Peter Kagwanja, widely associated with crafting Kibaki’s anti-ICC agenda has argued in a recent editorial that the ICC is an alien court offering selective justice to a country that has not collapsed as yet. See analysis here

In the meantime, western governments continue to pressured the Kenyan government to reconsider its anti-ICC stance. See story here