In September 2013, the National Assembly of Kenya unexpectedly moved to withdraw the country from the International Criminal Court (ICC). At the time, both President Uhuru Kenyatta and Deputy President William Ruto were facing ICC charges for their involvement in the ethnic violence following Kenya’s 2007 disputed presidential elections, though only Deputy President Ruto’s trial had begun. When a terrorist group assaulted the Westgate Mall at the beginning of October, causing shock and havoc in Nairobi, the trials were put on hold so the two could remain in Nairobi.
The Court has previously been at the cynosure of criticism for its alleged racial bias, flawed investigation processes and prosecutorial strategies, as well as suffering from unacceptable delays. Full ICC investigations have only been conducted in eight countries—all in Africa. However, the decision to prosecute President Kenyatta marked only the second time a sitting president has been prosecuted by the tribunal, after Sudanese President Omar al-Bashir in 2009, sparking a vigorous debate during a recent emergency summit of the African Union (AU) Assembly. African heads of state claimed the Court’s actions were motivated by racism and imperialism, while President Kenyatta, who was accused of using his family fortune to finance death squads, claimed the court “stopped being the home of justice the day it became the toy of declining imperial powers.” Several leaders at the AU summit questioned whether they should join Kenya in withdrawing from the Rome Statute, the treaty that gave birth to the ICC, but for the time being all members of the Court have decided to remain. Nonetheless, they did agree to appeal to the ICC to limit prosecutions to heads of state that have already left office.
Of the African Union’s fifty-four member countries, thirty-four are ICC members who notably played an active role at the negotiations to establish the court in the 1990’s. Many countries decided to ratify the Rome Statute when the strong winds of democracy first started to blow throughout sub-Saharan Africa, though some were more successful than others in dealing with the new challenges of democracy, including a radical change in standards for the defense of human rights. African countries’ ratification of the treaty sent a strong signal to the world that Africans had set the bar high and rejected impunity for their leaders. But ratification also implied that Africans would independently determine the price to be paid by leaders who committed human rights violations.
The increasing number of ICC investigations and indictments suggests that the Court’s power to dissuade leaders from committing crimes, though highly desirable, has not yet been proven. However, leaders often recur to violence specifically where state institutions have a limited ability to prevent and manage tensions on that scale. And since national courts in African countries have not yet reached standards that would allow them to investigate large-scale crimes against humanity, that mission would have to be assumed by regional bodies such as the Economic Community of West African States (ECOWAS), the Southern Africa Development Community (SADC), or the African Union. But these institutions are already assuming critical roles in peacekeeping and humanitarian aid, and until homegrown institutions can develop the necessary capacity and expertise, the ICC for all its failings remains the best mechanism to hold individuals accountable for grave humanitarian violations.
In the meantime, as experience shows, a ruling by the Court is still capable of diffusing tensions that stem from conflicts of interest in national court systems. Following Laurent Gbagbo’s refusal to step down after losing the 2010 elections in Côte d’Ivoire to Alassane Ouattara, the ensuing conflict claimed thousands of lives. In a country strongly divided along ethnic and political lines, the issue of national reconciliation was one of the most daunting tasks facing the Ouattara government. Trying Gbagbo within Côte d’Ivoire would have considerably impeded reconciliation efforts and would have raised questions about judicial partisanship, so sending him to The Hague was thus a satisfactory decision.
The recent debate at the AU directly called into question the standards of leadership set by Africans themselves. Certainly, granting full immunity to sitting heads of state would prevent governments from ensuring accountability. Nevertheless, a balance has to be struck between holding leaders accountable for past offenses on one hand, and permitting stable governance on the other. In Kenya, while President Kenyatta has been accused of committing crimes against humanity as part of his accession to power, he continues to remain a democratically elected representative of the people. Hence he should be afforded a temporary immunity that would ensure the stability of the Kenyan government by allowing him to govern. Temporary immunity would not absolve him from having to prove his innocence or accounting for any wrongdoing at a later date. Furthermore, the provision could include a solid check and balance system administered by national and regional bodies that, in the most extreme cases, would rescind immunity and require the removal of sitting leaders from office.
Although Fatou Bensouda of the Gambia became Chief ICC prosecutor last year, many Africans remain unconvinced about the institution’s impartiality. Yet African democratic development has long been on a rocky path. The need for stronger state institutions and higher standards for African leaders should be increasingly accompanied by regional bodies to ensure long-term positive impacts and a necessary transfer of investigative skills from the International Court to national tribunals. In the meantime, with the first preliminary examinations for cases outside the continent currently underway, the ICC’s vocation as an international tribunal remains intact.