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ICC is skewed against Africa

By Uhuru Kenyatta
WE are privileged to lead the nations of a continent on the rise. Africa rests at the centre of global focus as the continent of the future. Although we have been relentlessly exploited in the past, we remain with sufficient resources to invest in a prosperous future. While we have been divided and incited against one another before, we are now united and more peaceful.

Even as we grapple with a few regional conflicts, as Africans, we are taking proactive measures to ensure that all our people move together in the journey to prosperity in a peaceful home. Even though we were dominated and controlled by imperialists and colonial interests in years gone by, we are now proud, independent and sovereign nations and people. We are looking to the future with hope, marching towards the horizon with confidence and working in unity. This is the self-evident promise that Africa holds for its people today. As leaders, we are the heirs of freedom fighters, and our founding fathers. These liberation heroes founded the Organisation of African Unity, which was dedicated to the eradication of all forms of colonialsm.

Towards this end, the OAU defended the interests of independent nations and helped the cause of those that were still colonised. It sought to prevent member states from being controlled once again by outsider powers. The founding fathers of African Unity were conscious that structural colonialism takes many forms, some blatant and extreme, like apartheid, while others are subtler and deceptively innocuous, like some forms of development assistance.

It has been necessary, therefore, for African leaders to constantly watch out against threats to our peoples' sovereignty and unity. In our generation, we have honoured our fathers' legacies by guaranteeing that through the African Union, our countries and our people shall achieve greater unity, and that the sovereignty, territorial integrity and independence of our States shall not be trifled with.

More than ever, our destiny is in our hands. Yet at the same time, more than ever, it is imperative for us to be vigilant against the persistent machinations of outsiders who desire to control that destiny. We know what this does to our nations and people: subjugation and suffering. The philosophies, ideologies, structures and institutions that visited misery upon millions for centuries ultimately harm their perpetrators. Thus the imperial exploiter crashes into the pits of penury.

The arrogant world police is crippled by shambolic domestic dysfunction. These are the spectacles of Western decline we are witnessing today. At the same time, other nations and continents rise and prosper. Africa and Asia continue to thrive, with their promise growing every passing day. As our strength multiplies, and our unity gets deeper, those who want to control and exploit us become more desperate.

Therefore, they abuse whatever power remains in their control. The Swahili people say that one ascending a ladder cannot hold hands with one descending. The force of gravity will be compounded and the one going up only loses. The International Criminal Court was mandated to accomplish these objectives by bringing to justice those criminal perpetrators who bear greatest responsibility for crimes. Looking at the world in the past, at that time and even now, it was clear that there have always been instances of unconscionable impunity and atrocity that demand a concerted international response, and that there are vulnerable, helpless victims of these crimes who require justice as a matter of right. This is the understanding, and the expectation of most signatories to the Rome Statute.

The most active global powers of the time declined to ratify the Treaty, or withdrew somewhere along the way, citing several compelling grounds. The British foreign secretary Robin Cook said at the time, that the International Criminal Court was not set up to bring to book Prime Ministers of the United Kingdom or Presidents of the United States.

Had someone other than a Western leader said those fateful words, the word "impunity" would have been thrown at them with an emphatic alacrity. An American senator serving on the foreign relations committee echoed the British sentiments and said, "Our concern is that this is a court that is irreparably flawed, that is created with an independent prosecutor, with no checks and balances on his power, answerable to no state institution, and that this court is going to be used for politicised prosecutions."

The understanding of the States which subscribed to the Treaty in good faith was two-fold. First, those world powers were hesitant to a process that might make them accountable for such spectacularly criminal international adventures as the wars in Iraq, Syria, Libya, Afghanistan and other places, and such hideous enterprises as renditions and torture. Such states did not, therefore, consider such warnings as applicable to pacific and friendly parties.

Secondly, it was the understanding of good-faith subscribers that the ICC would administer and secure justice in a fair, impartial and independent manner and, as an international court, bring accountability to situations and perpetrators everywhere in the world. As well, it was hoped that the ICC would set the highest standards of justice and judicial processes. As has been demonstrated quite thoroughly over the past decade, the good-faith subscribers had fallen prey to their highmindedness and idealism. Western powers are the key drivers of the ICC process. They have used prosecutions as ruses and bait to pressure Kenyan leadership into adopting, or renouncing various positions.

Close to 70 percent of the Court's annual budget is funded by the European Union. The threat of prosecution usually suffices to have pliant countries execute policies favourable to these countries. Through it, regime-changes have been attempted in Africa. A number of them have succeeded. The Office of the Prosecutor made certain categorical pronouncements regarding eligibility for leadership of candidates in Kenya's last general election. Only a fortnight ago, the Prosecutor proposed undemocratic and unconstitutional adjustments to the Kenyan Presidency. These interventions go beyond interference in the internal affairs of a sovereign State. They constitute a fetid insult to Kenya and Africa.

African sovereignty means nothing to the ICC and its patrons. They also dovetail altogether too conveniently with the warnings given to Kenyans just before the last elections: choices have consequences. This chorus was led by the USA, Britain, EU, and certain eminent persons in global affairs. It was a threat made to Kenyans. My government's decisive election must be seen as a categorical rebuke by the people of Kenya of those who wished to interfere with our internal affairs and infringe our sovereignty.

America and Britain do not have to worry about accountability for international crimes. Although certain norms of international law are deemed peremptory, this only applies to non-Western states. Otherwise, they are inert. It is this double standard and the overt politicisation of the ICC that should be of concern to us. It is the fact that this court performs on the cue of European and American governments against the sovereignty of African States and peoples that should outrage us.

People have termed this situation "race-hunting." I find great difficulty adjudging them wrong. What is the fate of International Justice? I dare say that it has lost support owing to the subversive machinations of its key proponents. Cynicism has no place in justice. Yet it takes no mean amount of selfish and malevolent calculation to mutate a quest for accountability on the basis of truth, into a hunger for dramatic sacrifices to advance geopolitical ends.

The ICC has been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims. It stopped being the home of justice the day it became the toy of declining imperial powers. This is the circumstance which today compels us to agree with the reasons US, China, Israel, India and other non-signatory States hold for abstaining from the Rome Treaty.

In particular, the very accurate observations of John R Bolton who said, "For numerous reasons, the United States decided that the ICC had unacceptable consequences for our national sovereignty. Specifically, the ICC is an organisation that runs contrary to fundamental American precepts and basic constitutional principles of popular sovereignty, checks and balances and national independence." Our mandate as AU and as individual African States is to protect our own and each other's independence and sovereignty.

The USA and other nations abstained out of fear. Our misgivings are born of bitter experience. Africa is not a third-rate territory of second-class peoples. We are not a project, or experiment of outsiders. It was always impossible for us to uncritically internalise notions of justice implanted through that most unjust of institutions: colonialism. The West sees no irony in preaching justice to a people they have disenfranchised, exploited, taxed and brutalised. Our history serves us well: we must distrust the blandishments of those who have drunk out of the poisoned fountain of imperialism.

The spirit of African pride and sovereignty has withstood centuries of severe tribulation. I invoke that spirit of freedom and unity today before you. It is a spirit with a voice that rings through all generations of human history. It is the eternal voice of a majestic spirit which will never die.

Kenya is striving mightily, and wants to work with its neighbours and friends everywhere to attain a better home, region and world. Kenya seeks to be treated with dignity as a proud member of the community of nations which has contributed immensely, with limited resources, to the achievement of peace, security and multilateralism. Kenya looks to her friends in time of need.

We come to you to vindicate our independence and sovereignty. Our unity is not a lie. The African Union is not an illusion. The philosophy of divide-and rule, which worked against us all those years before, cannot shackle us to the ground in our Season of Renaissance.

Our individual and collective sovereignty requires us to take charge of our destiny, and fashion African solutions to African problems. It will be disingenuous to pretend that there is no concern, if not outrage, over the manner in which ICC has handled not just the Kenyan, but all cases before it. All the cases currently before it arise from Africa. Yet Africa is not the only continent where international crimes are being committed. Out of over 30 cases before the court, NONE relates to a situation outside Africa. All the people indicted before that court, ever since it's founding have been Africans. Every plea we have made to be heard before that court has landed upon deaf ears.

Before the ICC, African sovereign nations' resolutions are NOTHING compared with the opinions of civil society activists. The AU is the bastion of African sovereignty, and the vanguard of our unity. Yet the ICC deems it altogether unworthy of the minutest consideration. Presidents Kikwete, Museveni, Jonathan and Zuma have pronounced themselves on the court's insensitivity, arrogance and disrespect. It would not be right to ignore the fact that concern over the conduct of the ICC is strong and widespread.

There is very little that remains for me to say about the slights that the ICC continues to visit upon the nations and people of Africa. We want to believe in due process before the ICC, but where is it being demonstrated? We want to see the ICC as fair and even-handed throughout the world, but what can we do when everyone but Africa is exempt from accountability? We would love nothing more than to have an international forum for justice and accountability, but what choice do we have when we get only bias and race-hunting at the ICC? Isn't respect part of justice? Aren't our sovereign institutions worthy of deference within the framework of international law? If so, what justice can be rendered by a court which disregards our views? Our mandate is clear: sovereignty and unity.

Uhuru Kenyatta, is the President and Commander in Chief of The Defence Forces of The Republic of Kenya. This article is reproduced from The African Executive.





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