International Criminal Court: Why Is the African Union Getting In the Way Of Investigating Election Fraud?


At the 50th anniversary celebrations commemorating the founding of the Organization of African Unity (OAU), predecessor to the African Union (AU), African leaders again accused the International Criminal Court (ICC) of hunting Africans. Speaking at the summit, Ethiopian Prime Minister Hailemariam Desalegn accused the ICC of deviating from the mandate of fighting global impunity for war crimes, crimes against humanity, and genocide, and "degenerating" into “race hunting” Africans. In this regard, the AU is expected to pass a resolution urging the ICC to relinquish jurisdiction and refer ongoing Kenya cases back to Kenyan national jurisdiction.

The claim of many Africans that the ICC is witch-hunting the continent is difficult to dispute, especially because all of the cases currently before the court involve Africans. At the end of the 2007 Kenyan post-election violence in which more that 1,000 people were killed and some 600,000 displaced, five Kenyans including current President Uhuru Kenyata and deputy William Ruto, were indicted by the ICC. Charges against one of the accused, Francis Kirimi Muthaura, were recently withdrawn. The ICC has jurisdiction only when a state is unwilling or unable genuinely to investigate or prosecute a case. The ICC jurisdiction in the Kenyan case is not because Kenya is unwilling or unable to investigate or prosecute, but because Kenya is not pursuing the same suspects as the court.

Kenya has made few attempts to terminate ICC jurisdiction in its country's situation. Macharia Kamau, permanent representative of Kenya to the United Nations, recently sent a letter to the UN Security Council calling on the body to intervene and terminate the case against Kenya at the ICC. Ambassador Kamau accused the court of being “neither impartial nor independent.”

According to Prime Minister Desalegn, the African Union will take its concerns of ICC "witch-hunting" to the UN. Human Rights organizations such as Amnesty International have called on the African Union to reject Kenya’s attempt to "shield" its leaders from ICC prosecution. According to the organization, the AU “must throw out the resolution tabled by the Kenyan government calling for the International Criminal Court's case to be referred for trial in Kenya.”

There is no precedent or statutory provision as to whether the court is allowed to relinquish jurisdiction in an ongoing trial, but Kenya’s attempt to bully the ICC into submission must not be condoned. Kenya had the chance to investigate and prosecute the matter before the court, which it did not claim. The indicted leaders who are now elected officials of the Kenyan government must desist from undermining the work of the court. If the accused are innocent, the ICC is competent to make such judgement.