In this third part of a four-part series, ICC Kenya Monitor writes about the effort to have the Kenya cases discussed at the May 2013 African Union summit.

As Kenya’s note verbale made its way through the UN Security Council, there was a parallel diplomatic effort to get the African Union (AU) to once again make a resolution on the Kenya cases. This push was focused on the AU Heads of State and Government summit that took place May 26 and 27, after the continental body marked the 50^th anniversary of African unity on May 25.

Ordinarily the AU holds two summits every year, one in January and another in July. However, this year its second leaders’ meeting was brought forward so Africa’s presidents, prime ministers, and others could be in the Ethiopian capital, Addis Ababa, to celebrate the golden anniversary together. The AU’s predecessor, the Organisation of African Unity was founded on May 25, 1963 in Addis Ababa as an uncomfortable compromise between leaders who wanted newly independent countries to form one African state immediately to give the continent a strong political and economic voice and those who wanted to take more moderate steps towards African unity.

The agenda of these summits is drafted at least three months in advance. However, the heads of state and government also consider last minute agenda items presented by regional organizations out of respect for the fact that these regional organizations are treated as the building blocks of African unity, and leaders defer to their local knowledge of issues pertinent to them. It is this second route that the Kenya cases at the International Criminal Court (ICC) found their way into the just-concluded AU summit. Similar to what happened at the UN Security Council earlier in May when a member of the East African Community (EAC), Rwanda, brought up the Kenya agenda during a routine meeting, Uganda presented the Kenya agenda at the AU summit. Uganda is a member and the current chair of the EAC.

This approach may have been informed by one of the resolutions last year by the East African Community, which is made up of Burundi, Kenya, Rwanda, Tanzania, and Uganda. In its regular summit in November 2012, the EAC resolved that the Kenya cases should be referred to the East African Court of Justice, from the ICC in The Hague. The heads of state reached this decision after the East African Legislative Assembly passed a resolution backing such a move. The EAC heads of state, in acknowledgement that the East African Court of Justice as it is constituted does not have the mandate to adjudicate international crimes, also resolved that the relevant cabinet ministers should look into how to amend the Treaty of the EAC to allow its court handle international criminal matters. In their communique, the heads of state did not refer to the fact that the judges of the Court of Justice had tried since 2004 to get the member states to consider such an amendment. Nor did the heads of state refer to the fact that because the East African Community is not a state party of the Rome Statute, which only recognizes national jurisdictions and not the jurisdiction of regional courts, then its November 2012 resolution could not lead to the Kenya cases at the ICC being moved to the East African Court of Justice.

In addition to the Kenya agenda at the AU being a follow-up of the East African Community’s own resolution, Kenya lobbied a number of countries ahead of the summit. The most visible was Deputy President William Samoei Ruto’s visit to the Republic of Congo, Gabon, Ghana, and Nigeria. However, President Uhuru Muigai Kenyatta has also attended a number of heads of state meetings in April and May, plus the annual World Economic Forum on Africa where he is likely to have raised the issue. At the end of April, he attended a summit of EAC heads of state where the focus was on the group’s much-postponed monetary union. Then Kenyatta attended a summit of the Intergovernmental Authority on Development, which is made up Djibouti, Eritrea, Ethiopia, Kenya, Uganda, Somalia, and Sudan. The May 5 meeting was focused on Somalia and a donors’ conference on Somalia that was held a few days later in Britain.

The media spin in reports leading up to the summit said the AU was considering asking those African countries that are members of the ICC to withdraw their membership. Such action would take two years to complete under the Rome Statute. Eventually AU leaders agreed to direct the executive arm of the organization, the African Union Commission, to request the UN Security Council to move the Kenya cases at the ICC back home where they believe the Kenyan judiciary has reformed enough to be able to handle the politically sensitive cases.

While briefing journalists on the resolutions at the just-concluded AU summit, Ethiopia’s Prime Minister Hailemariam Desalegn accused the ICC of “race hunting” because all the ongoing cases at the court involve Africans.

In response, the Presidency of the ICC issued a statement denying the court took on cases based on ethnic or other considerations. The Presidency also pointed out that many of the cases before the ICC were referred to it by African states.

“Decisions are taken independently on the basis of the law and the available evidence and are not based on regional or ethnic considerations,” the Presidency said in its statement. “Judges are the guarantors of the fairness of proceedings before the Court, from the authorisation of investigations to the confirmation or non-confirmation of charges and decisions on guilt or innocence.”

In an interview with the international channel France24, Ghana’s President John Dramani Mahama offered an insight into how African leaders reached their decision at the AU summit. He said he would not go as far as accusing the ICC of race hunting.

“I think the ICC has done a fantastic job in bringing some people who have committed mass murder and genocide to justice,” he said in a May 30 interview with the English service of France24. “But Africa is a complex continent and I do think that there are some circumstances that do need to be looked at carefully.”

He said Kenya is one such example because since the violence that shook the country five years ago Kenya has enacted a new constitution, reforms are in progress, and the people facing charges at the ICC have been elected to lead the country.

“And so there’s the verdict of the Kenyan people. What would you say? That the verdict of the people or the verdict of the ICC, which of them is more important?” asked Mahama. He said that the Kenyan judiciary had undergone changes and was now capable of handling cases such as the ones before the ICC.

“And so in the Kenyan case I do think that the Kenyan justice system should be allowed to deal with it,” Mahama said.

The fourth and final article looks at previous diplomatic efforts to have the Kenya cases deferred and asks what all this current activity means.