Africa’s new plot against HagueAfrica’s new plot against Hague
Published Wednesday, May 9 2012 at 00:00
By Peter Opiyo
Africa’s latest assault on International Criminal Court is under way at the African Union headquarters in Addis Ababa and the aim is to have the two Kenya cases deferred.
The Africa Union meeting in the Ethiopian capital seeks to expand jurisdiction of African Court of Justice and Human and Peoples’ Rights so that it can deal with international crimes such as genocide, crimes against humanity, and war crimes, which are currently exclusively left to The Hague-based court.
In the agenda also are discussions on “the African common position” regarding ICC following the decision adopted by the 18th Ordinary Session of the Africa Union Summit in January.
At the summit, the AUssembly recognised the efforts of African members at the UN Security Council to lobby the deferral of Kenya and Sudan’s cases at ICC.
This appears to be reintroduction of the failed ‘shuttle diplomacy’ President Kibaki assigned to Vice-President Kalonzo Musyoka last year.
It also builds on the bid by Kenya to have the cases against its high-profile nationals deferred by the UN Security Council under grounds of peace and security.
Top African government legal experts on Monday began their meeting, which ends on May 11, at which the process to strengthen the African Court of Justice and Human and Peoples’ Rights would be completed. It will be followed by the session of Justice ministers and Attorney Generals from May 14 to 15.
As the Court puts mainly Africans in the dock at The Hague on the crosshairs, AU dispatched its top-notch legal team to put more pressure on the UN Security Council to defer Kenya’s post-election violence cases.
The meeting of Legal experts from the 54 AU member states is also set to discuss the deferral of the pending case against Sudan’s President Omar Al-Bashir, as was adopted by the AU Assembly in January.
It comes hot on the heels of President Kibaki’s announcement that the Government is still exploring a local mechanism to try the four post-election violence suspects.
Four Kenyans are accused of bearing the greatest responsibility over the 2008 post-poll upheavals that led to the killing of 1,133 people and displacement of over 500,000.
They have already been committed to full trial and are left with one appeal, which if they lose would see them hauled before the ICC trial judges.
Two of Kibaki’s allies – Deputy Prime Minister, Uhuru Kenyatta, and former Head of Public Service, Francis Muthaura – and Eldoret North MP, William Ruto, and Kass FM radio presenter Joshua Sang are before the ICC.
During his State of the Nation address in Parliament on April 24, Kibaki told MPs the Government was keen on having the cases tried locally.
Even more significant was the fact that on April 27, the East African Legislative Assembly (Eala), sitting in Nairobi, resolved to have the Kenya cases transferred to the East African Court of Justice.
Though this court does not have the jurisdiction to try international crimes, Eala resolved to amend Article 27 of East Africa Community Treaty to expand the Court’s jurisdiction to cover such crimes.
The AU Assembly in January recognised the efforts of African members at the UN Security Council to place and lobby the deferral of the Kenya and Sudan cases at ICC.
It also called upon African no-permanent members of Security Council to pursue the matter.
It is these resolutions the team of legal experts is working on, as a multi-pronged approach is employed to have the Kenya cases either referred or deferred. “The meeting will discuss the African common position regarding the ICC following the decision adopted by the 18th Ordinary Session of the AU Summit in January 2012,” reads press brief on the meeting.
The meeting is also discussing the draft model national law on universal jurisdiction for international crimes the AU Commission proposes.
This law is aimed at having the national governments put up mechanism of trying international crimes cases at the local level.
“Eventually, this law will enable the AU member States to adjust national legislation to prosecute perpetrators of international crimes at national level,” the statement explains.
The Assembly also expressed displeasure at a clause that does not grant immunity to Heads of States, and presidents against criminal proceedings for international crimes.
It is this clause that has been exploited by ICC to issue an arrest warrant against Bashir.
But AU passed a resolution barring any of its members from co-operating with ICC on the matter.
This has seen Bashir against whom an arrest warrant has been issued visit Kenya, Malawi, Chad, and Djibouti without risking arrest.
It has further requested the AU Commission to consider seeking an advisory opinion from ICC regarding the immunities of State Officials under international law.
At the January meeting, the Assembly recognised the efforts made to lobby UN Security Council to put pressure on ICC to defer the case. It resolved that the deferral of proceedings against Bashir and the four Kenyans be acted upon by UN Security Council.
In March, last year, the UN Security Council rejected Kenya’s bid to have the ICC suspend the cases.
An informal meeting between Kenyan envoys and members of the Council did not break grounds. UN Security Council members, including permanent members US, Britain, and France vowed to reject the request.
But the AU Assembly, in January, requested the group of African States in New York and in The Hague as well as the African members of UN Security Council to ‘scrupulously’ follow up on the implementation of the Assembly’s decisions on ICC and ensure Africa’s proposals are heard at the UN Security Council.
Article 16 of the Rome Statute, which set up the ICC, allows the Security Council to suspend the court’s proceedings if prosecutions at The Hague would constitute a threat to international peace and security.http://www.standardmedia.co.ke/standard ... 2000057864