African Union might shelf plan for expanded continental court

A meeting of the Coalition for an Effective African Court which I attended in Arusha last week concluded that it is possible that the African Union will now abandon its plans for an expanded jurisdiction of the African court, because of the termination of the case before the International Criminal Court, against President Uhuru Kenyatta.

The coalition is a pan-African umbrella body, based in Arusha, Tanzania, and is the most credible independent voice on the African human rights system.

The meeting was opened by former Tanzania Chief Justice, now president of the Arusha-based African Court on Human and Peoples’ Rights, Justice Agostino Ramadhani.

The AU summit held in Malabo in June 2014 resolved to expand the jurisdiction of the court to embrace powers to try serious crimes, including those that currently fall under the jurisdiction of the ICC.

The apparent loss of interest has to do with the fact that, in December last year, the ICC withdrew charges against President Kenyatta.

It is thought that the Malabo protocol was part of the multi-pronged effort to protect the Kenyan President from his ICC charges, and that since his case is now over, there is no longer a taste for pushing ahead with the ratification of the protocol.

What has culminated in the Malabo protocol has a history dating back to 2000 when Belgium issued an arrest warrant against the Foreign Minister of the Democratic Republic of Congo, Yerodia Ndombasi, an incident that caused consternation among African states, over its breach of the doctrine of diplomatic immunity.

A difficult relationship ensued, and has persisted, between the AU and European states, and when, in 2008, Germany enforced a French arrest warrant against Rwanda’s chief of protocol, Rose Kibuye, this solidified Africa’s resolve to fight what was viewed as an abuse of universal jurisdiction by European states to harass and humiliate African leaders.

The arrest warrant issued by the ICC against President Omar el Bashir the following year created a sense of siege in Africa and set the AU on the path to crafting a criminal court that it would control, and which, at the same time, would shield its leaders from the threat coming out of the continent.

However, in the face of the substantial scepticism that has existed about the viability of such a court, plans for the court remained half-hearted and would have died if the Kenyan cases had not entered the ICC. The Kenyan cases reinvigorated the clamour, which finally culminated in the Malabo protocol last year.

The Kenyatta case was withdrawn only after the Malabo protocol had been adopted. It is doubtful that the AU would have adopted the protocol if the Kenyatta case had ended earlier.

REAL INTENTION

As a result, Africa is now confronted with having to contemplate the possibility of a court it does not really want, a decision that was presented as an altruistic attempt to provide African solutions for African problems, but whose real intention was to address the short-term issue facing Kenya, which has since resolved itself.

At the last summit in January, a number of government-aligned NGOs and individuals went on a junket trip to Addis Ababa, which they justified as an opportunity to build on Malabo, by lobbying African states to stay the course and ratify the protocol.

However, Kenya’s magical diplomatic team, whose heroic exploits were at the heart of shaping the continent’s attitudes towards the ICC, and therefore saving Kenyatta a trial, had since demobilised and was not in Addis Ababa. Clearly, both the AU and the Kenyan Government had since moved on and this issue was not discussed.

Although Africa so enthusiastically approved the Malabo protocol, that treaty now lacks a champion and clearly risks being orphaned. There is an example of what is likely to happen to the Malabo protocol. In 2004, the AU resolved to create the African Court of Justice, a decision that was updated in 2008 when a protocol was adopted to merge this court, still non-existent, with the African court that exists in Arusha today.

The 2008 protocol requires 15 signatures to come into force. So far, only five countries have ratified the protocol, indicating that it will take a long time to obtain the number of signatures required to bring the court into force.

The Malabo protocol has gone into low season and is unlikely to bother the AU in the near future.

However, Africa frequently experiences conflict, but still lacks capacities to ensure accountability for crimes occurring during such conflicts. It is, therefore, unsafe to rule out a possible future intervention in the continent by the ICC, or some other justice mechanisms not based in Africa.

It is reasonable to imagine that if the ICC, or another mechanism that the AU cannot dictate, intervenes in a manner that threatens the leadership of the continent, the processing of the Malabo protocol can be revived.

While the Kenyatta case has ended, the long-term effects of the diplomatic shifts it has created will endure. One thing that the Kenyan cases have taught African leaders is that they possess immense diplomatic power if they stick together.

They have also learnt that, for now, domestic constituencies calling for accountability are weak and there are no real consequences for ignoring these.

The Malabo protocol is likely to become the big gun in the fight against accountability, one that is deployed or de-activated, according to changes over the seasons.

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