AU Summit Should Support Court, Including Kenya Cases
October 7, 2013

(Johannesburg, October 7, 2013) – 130 groups from across Africa called on African members of the International Criminal Court (ICC) in a letter made public today to affirm their support for the court at an extraordinary summit of the African Union (AU). The meeting is scheduled for October 11 and 12, 2013, in Addis Ababa.

The groups, from 34 countries, said African countries should support the ICC as a crucial court of last resort, including for its current cases on crimes committed during Kenya’s post-election violence in 2007-2008. The relationship between the ICC and some African governments has faced renewed challenges as the Kenya cases have progressed, the groups said. This has led to increased accusations that the court is targeting Africa, and questions over whether some African ICC members may be considering withdrawing from the ICC’s treaty, the Rome Statute.

“Southern Africa was at the forefront of pressing for a permanent international criminal court,” said Angela Mudukuti, International Criminal Justice Programme Project Lawyer at the Southern Africa Litigation Center. “South Africa and other Southern Africa Development Community members should press the AU to work to expand the reach of justice, not cripple it.”

In southern Africa, Botswana has been a vocal proponent of the ICC in the face of recent attacks on the court, but many other African ICC members have remained silent. However, in its September statement to the UN General Assembly, Lesotho expressed strong support for the ICC, and it should reaffirm that support at the Addis summit. Mauritius also adopted legislation to implement the ICC’s treaty domestically in 2011, putting it in a good position to express strong support for the court at the summit.

African countries played an active role at the negotiations to establish the court, and 34 African countries – a majority of African Union members – are ICC members. African governments have sought out the ICC to try grave crimes committed on their territories, and Africans are among the highest-level ICC officials as well as serving as judges.

“Five African states asked the ICC to investigate crimes committed in their countries – Côte d’Ivoire, Uganda, Central African Republic, Mali, and Democratic Republic of Congo,” said Georges Kapiamba, president of the Congolese Association for Access to Justice. “These states have particular authority and responsibility to dispel claims that the ICC is targeting Africa.”

Any withdrawal from the ICC would send the wrong signal about Africa’s commitment to protect and promote human rights and to reject impunity, as reflected in article 4 of the AU’s Constitutive Act, the organizations said. The work and functioning of the ICC should not be beyond scrutiny and improvement, but withdrawal would risk grave consequences of undermining justice in Africa.

“This year Nigeria and Ghana both acknowledged the ICC as a crucial court of last resort, and are thus well placed to play a positive leadership role at the summit,” said Chinonye Obiagwu, National Coordinatorat Nigeria’s Legal Defense and Assistance Project. “They should actively push back against unprincipled attacks on the court and support the ICC’s ability to operate without interference, including in Kenya.”

The Nigerian government reaffirmed a “firm commitment to the Rome Statute” and “readiness for continued cooperation with ICC to put an end to impunity” in a recent filing to the ICC. President John Drimana Mahama of Ghana told France24 after an AU summit meeting in May, “I think the ICC has done an amazing job in bringing some people who have committed genocide and mass murder to justice.”

Kenya’s leaders in 2008 initially agreed to set up a special tribunal to try cases related to the postelection violence, which claimed more than 1,100 lives, destroyed livelihoods, and displaced more than a half-million people. But efforts to create the tribunal or to move cases forward in ordinary courts failed. The ICC prosecutor then opened an investigation, as recommended by a national commission of inquiry set up as part of an African Union-mediated agreement to end the violence.

The groups said that Kenya has put governments in an awkward position by pressing for action to avoid the ICC’s cases while having failed to avail itself of the court’s procedures to authorize such a move based on credible domestic investigation and prosecution.