Leaders gather for a group photo of the 28th Ordinary Session of the Assembly of the African Union in Addis Ababa, Ethiopia, Monday, Jan. 30, 2017. The U.N. Secretary General Antonio Guterres, front right, on Monday commended African countries for opening their borders to refugees and people fleeing violence.(AP Photo/Mulugeta Ayene )

African Union leaders in Addis Ababa, Ethiopia, this week.  Mulugeta Ayene—AP via Time


At the most recent summit of the African Union, Moussa Faki Mahamat, the Foreign Affairs Minister of Chad, was elected as the new Chairperson of the African Union Commission. He won against several contenders after seven rounds of voting. One of the favourites to win the seat was Amina Mohammed, Kenya’s Foreign Secretary.

Over the past one year, her boss, Kenyan President Uhuru Kenyatta, and his deputy, William Ruto, along with members of a committee they set up, criss-crossed the continent, negotiating with other African leaders to back her candidacy. Mr Ruto even negotiated with the now deposed Yahya Jahmeh of The Gambia. During the election itself was underway, Mr Kenyatta carried on passionately lobbying his fellow African heads of state.

The seriousness of their commitment was such that they ignored an emerging tradition among the member-states that the chairperson’s seat should move alternately between the Anglophone sphere of Africa and the Francophone sphere. The outgoing chairperson, Nkosazana Dlamini-Zuma, was South African, and therefore the seat should have gone, as it did, to a Francophone representative.

It may never be explicitly known why the Kenyan leaders were so committed to having their own candidate elected, and therefore the depth of the disappointment they must have felt when they learnt she had lost. But the key to understanding at least part of their motivation, may be found in the elephant that has, for much of the recent past, been sitting, rather rudely, in Africa’s front parlour: The International Criminal Court.

The phrase “Don’t be vague, go to The Hague” can be recognised by any Kenyan who had attained the age of reason by 2009. Coined by Kenyan parliamentarians, it was a summary of their opposition to proposals to set up local tribunals to prosecute the suspected masterminds of the 2007/2008 post-election violence which ripped the country apart. One of the phrase’s most inveterate users was William Ruto, then Kenya’s Agriculture Minister.

A confidential list had been handed over by the Waki Commission, which was set up to investigate the clashes, to then President Mwai Kibaki and Prime Minister Raila Odinga. A copy of the list was forwarded to Luis Moreno-Ocampo, then the Prosecutor at the ICC. Before the contents of the list were made public, parliament was asked to decide, within a year, whether the cases should be prosecuted by local tribunals instead of the ICC.

The aforementioned phrase was coined during the debates. The suspects should be taken to The Hague (where the ICC is based), the members of parliament argued, to avoid the partiality that would result from handling the cases locally. The ICC, they posited, would assure justice to the victims. The principals, Kibaki and Odinga, as well as Kofi Annan (who had mediated the peace process), urged the parliamentarians to soberly reconsider. Parliament would have none of it. So Moreno-Ocampo eventually came to Kenya and produced his list.

Among the six names it had were those of Uhuru Kenyatta and William Ruto. The rapidity with which the narrative about the ICC changed thereafter was astounding. All of a sudden, the court became an imperialist puppet. It became the enemy. It was around this cry that the pair rallied their supporters in their unlikely journey to the presidency during Kenya’s 2013 general election.

They must have known, correctly, that their win would put the ICC in the awkward and unprecedented situation of having to try a sitting head of state and his deputy. For this is exactly what happened. Consequently, the court’s malign reputation was confirmed. The image of an African president setting aside his duties of state to attend his trial at a court in the Netherlands became an iconic illustration of neo-colonialism for many Africans.

Neither was the situation helped by the fact that all the cases the court has attempted to handle since being set up in 2002 involved African suspects (never mind that many of those cases were referred there by African governments themselves). It had become the poster child of Western imperialism.

The second consequence of having to prosecute a head of state and his deputy, in charge of the very country in which the cases’ witnesses and evidence were to be found, was that the ICC had to depend totally on the free cooperation of Mr Kenyatta and Mr Ruto in handling their cases. Needless to say, this was like expecting a water from a rock, with no Moses nearby to help.

Throughout the duration of its cases, the duo frustrated the court. Witnesses either recanted or disappeared. Evidence was tampered with. One by one, the cases were dropped. The last one was Mr Ruto’s, of whom the court let go because his case was tainted by “politics and interference.” All the while, the court’s name was dragged through the mud, its reputation massacred before the very Kenyans to whom it had been presented as the saviour.

A growing coalition of African countries rallied around Kenya’s ever-growing call to withdraw from the court (ignoring the fact that, out of Africa’s 54 countries, only 34 had signed the Rome Statute and even fewer had ratified it). South Africa, Burundi, and the Gambia each made a move to leave the court. The Kenyan cases, a landmark for their being the first initiated by the Prosecutor of the ICC, had become the court’s patent undoing. It was just a matter of time, aided perhaps by more pushing from Kenya, before the split would come.

Perhaps the opportunity for Kenya to push further was seen in the upcoming vacancy of the chair of the African Union Commission. It could be anything else, but there are few other ways to interpret the frantic journeys Messrs Kenyatta and Ruto made across Africa, negotiating with their counterparts in African countries and offering kickbacks for them to back the Kenyan candidate, Mrs Amina Mohammed.

It seems, however, that even this was not enough to convince Africa’s Francophone countries to let go of their chance at taking back the mantle. Moussa Faki won. Tradition won. The loss was a stinging humiliation for Kenya, which felt betrayed by its neighbours. Uganda has defended itself, saying it backed Amina to the very last round because it values its friendship with Kenya.

But the ICC question is far from settled. Amina may have lost, but the undercurrent represented by the push for her candidacy does not seem to have lost with her. A closed door meeting of African leaders on the side-lines of the same summit came up with a non-binding decision calling for a “collective withdrawal from the International Criminal Court.”

In exchange there is a vague promise that the African Union will expand the jurisdiction of the African Court of Justice to include the kinds of cases handled by the ICC. Notably, the court would accord immunity to heads of state. Considering that a good chunk of the cases at the ICC involve heads of state, it seems only a very small group of people will benefit from a withdrawal.

Mathew Otieno writes from Nairobi, Kenya.

Mathew Otieno

Mathew Otieno writes from Kisumu, Kenya.