African Union Summit Unanimously Approves Kenya’s Deferral Request

The African Union Summit of Heads of States and Government that ended on January 31^st, 2011 in Addis Ababa unanimously approved Kenya’s

bid to seek a deferral of two cases against six Kenyans at the ICC. See stories here , here, here  and here.  

President Kibaki told the summit that the deferral would: “will boost our efforts [for] peace, justice and reconciliation as well as uphold our national dignity and sovereignty; and prevent the resumption of conflict and violence.”

President Kibaki’s efforts on peace, justice and reconciliation may however be faltering. His nomination of an Attorney General, Director of Public Prosecution and Chief Justice have been declared unconstitutional by the Judicial Service Commission and the Commission on Implementation of the Constitution. Click here for the story.

The Prime Minister has also called the nominations unconstitutional since he like the Judicial Service Commission and the Commission on Implementation of the Constitution were not consulted. See story here.

The uncertainty hanging over these appointments is not surprising. Similar stalemates have forestalled the installation of a domestic tribunal to try post election violence offenders in the past.

The other reason Kibaki advanced in seeking support on deferral was that of protecting Kenya’s national dignity and sovereignty. That argument is also in bad faith for many reasons not least of which is it that it would legitimize not having to undertake the kind of investigation the Prosecutor is undertaking against those most responsible for post election violence in Kenya. That would only further the road towards impunity.

Finally, I see no relationship between preventing the resumption of conflict and violence in the country and ICC investigations or prosecutions. If this was the case, a domestic tribunal once set up could create the same dynamics that Kibaki fears the ICC process would set in motion resulting in further possible violence. This argument is tenuous at best.

The one argument Kibaki did not make but was made by the African Union’s Commission Chairman Jean Ping that O’Campo’s latest effort to seek sermons against individuals in yet another African country was further evidence of applying double standards against Africans. Ping has argued why not Argentina, Iraq, Mynammar? Why has O’Campo primarily focused on African countries such as Sudan, DRC, Uganda and now Kenya? See Ping’s comments.

In my view, at the end of the day the support African countries gave to Kenya’s deferral request has more to do with this sense of double standards than anything else. More on that in a future post.

There is of course an African Union precedent seeking Security Council deferral with reference to the arrest warrant for Sudanese President Bashir. The Summit of the African Union in 1999 supported the deferral. See related resolution.

This request was never acted upon by the Security Council. As a result, the Summit in its 13^th Ordinary Session in 2009 “Decide[d] that in view of the fact that the request by the African Union has never been acted upon (by UN Security Council), the AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan.” This decision was reiterated (decision Assembly/AU/Dec. 296 (XV) by the 15^th Ordinary session of the Assembly in July 2010 in Kampala, Uganda.

Here is a very thoughtful expert study on this growing question of deferral requests to the Security Council by Dapo Akande, Max Du Plessis and Charles Jalloh.