ICCIn the last decade, warlord-ism has been on the decline in Africa. But terrorism and other forms of political combustion appear to be on the rise. Recent and ongoing disturbances in northern Nigeria, Kenya, Somalia, Mali, Ivory Coast, the Great Lakes, Egypt, Libya, Tunisia, the Democratic Republic of Congo, and Central African Republic are flash points of both Africa’s political vulnerability and the continent’s political renewal. As Africa engages its current positive, albeit, controversial economic transition, the tail of its political contradictions within a hypocritical world order continues to wag the continent.  So far, the International Criminal Court appears to be the most influential site with significant clout to check political impunity and irresponsible abuse of rights on the continent by its leadership and other fringe elements. This month, Africa’s dilemma and the credibility of its leadership to tackle current regional and global political realities were subject of interests on the global media and across diplomatic circles worldwide.

On Thursday, October 10, 2013, African leaders gathered in Addis Ababa, Ethiopia, under the auspices of the African Union to reopen the continent’s lingering double speak on the ICC. Many analysts and supporters of the ICC held their breaths as they waited the outcome of the meeting which was summoned in response to calls by a few African leaders for a regional pull out from the Rome Statute that established the ICC in 1998. Many feared that the continent was about to wholly jettison the ICC. Not that any such resolution would have easily been endorsed by all of the 34 of the 54 AU member states that are parties to the ICC. But such a prospect would have had a chilling impact on the status of the controversial Court and its jurisdictional reach on the continent. Instead, coming out of the meeting, African political leaders settled for a middle ground by demanding that no sitting head of state should be subjected to prosecution at the ICC. The impact of that demand is not lost on the international community, especially in regard to the influence of Kenya on the continent. That country’s recently elected president and his deputy, Uhuru Kenyatta, and William Ruto, are presently charged at the ICC as result of their involvement in the ill-fated 2007 general elections in Kenya.  In effect, the AU does not deny that Kenyatta and, indeed, Sudan’s Omar al-Bashir – another African head of stated indicted at the ICC – do not have a case to answer. Rather, the AU demands postponing of their trials until they leave office.

The volte face in Addis Ababa is owed largely to strong opposition to African leaders’ inclination to escape accountability championed by many credible civil society organisations and a number of reputable African leaders, notably Kofi Annan and Archbishop Desmond Tutu. These organisations and leaders insist that the ICC has an important role to play not only on the side of helpless victims of African dictatorships and widespread abuse of power but also in strengthening the continent’s fledgling democracies by standing as a symbol of accountability for those who play outside the rules. One is not sure there is any responsible African leader who would wish a repeat of what happened in Rwanda, Liberia and Ivory Coast and elsewhere without there being strong consequences. Any decision by African leaders that could directly or indirectly aid a repeat of the horrific experiences of genocide and wordlism on the continent would put them at odds with the entire people of the continent and its most vulnerable.

The circumstances under which Kenya’s Kenyatta and Sudan’s al-Bashir, two serving African heads of states, are currently indicted before the ICC are not the same, and should not conflated. Al-Bashir’s presidency is a creature of naked dictatorship, lacking any scintilla of democratic credential. He did not only violently crush his countrymen and women in the Darfur Region for daring to express their human rights; he also brutally prosecuted the long-drawn fratricidal warfare against the peoples of South Sudan. Through these and several other inglorious trademark of his long-running dictatorship, he has been dragged to the ICC and is required to defend himself against allegations of genocide, crimes against humanity and war crimes, which are squarely within the jurisdiction of the ICC; especially since it is not possible to prosecute him for these charges under the Sudanese legal system, while he remains on the saddle. It is arguable that the fear of the ICC was instrumental to al-Bashir’s reluctant willingness to follow through with South Sudan’s independence over which he stalled repeatedly. On the other hand, Kenyatta and his deputy got into trouble in the process of being actors in a democratic process that went awry, whereof the duo and their supporters were alleged to be complicit in indictable offences at the ICC. In a dramatic twist, and as an apparent act of defiance, Kenyans elected these two leaders to power; thus casting a shroud over, if not calling the bluff of their continued appearance at the ICC. Sudan and Kenya represent two different dynamics in Africa’s experience with the ICC. Kenyatta and al-Bashir are not on the same league; all details factored in.

If not for the double speak of African leaders on the ICC, the recent call they made regarding the trial of serving African heads of state would merit pensive introspection, at least from a practical point of view. On the double speak, African leaders have conveniently, in the words of Tutu, “played both the race and colonial cards” to undermine the ICC. But these are hollow charges when confronted with the important statistics regarding African representation in the Court as judges, prosecutors, other personnel, petitioners, and constitutive member states of the Rome Statute. Without getting into their details, in all these and other counts, it is hard to sustain the argument that the ICC is a racist or colonial establishment designed to humiliate Africans.  Just as an illustration, only 20 out of 54 African states are not parties to the Rome Statute. Put differently, 63 per cent of African countries are parties to the Rome Statute.

But the ICC is not an African Court. It is a global institution. The 122 member states of the Rome Statute include all the countries of South America, almost the entire Europe and a majority of the countries of Oceania. More than 31 other countries, including Russia, have signed and not ratified the treaty. While a case can be made that so far only African leaders have been charged at the ICC and its sole conviction yet is an African. In a way, that may be an affirmation of Africa’s evident leadership failure and political fragility. But one should not lose sight of ongoing ICC investigations directed at other regions that have yet to result in indictments. As well, several independent tribunals are charged with handling specific cases (Yugoslavia, Cambodia, etc.) and some of those have concluded their hearings – a situation that reduces prosecution traffic in the ICC from other regions.  Even if these are not good reasons, it is hard to provide regional equivalents of recent political turbulence in Africa as reflected in the countries listed above. In addition, half of the preceding investigations and resulting prosecution of Africans at the ICC arose from petitions by African member states of the Rome Statute. Perhaps more importantly, the question that needs asking is:  If the ICC is a racist institution targeted against Africans, how is that 30 African states, including those whose leaders are now kicking against the body, were part of the founding member states of the Rome Statute  that breathed life to the ICC?

To be concluded on Tuesday.

•Oguamanam is a Professor of Law, University of Ottawa, Canada