Introduction

African Union (AU) is an organization umbrella that accommodates most African states.   It is, however, prudent noting that most of the members f this union are members of International Criminal Court (ICC) which is an establishment of the Rome statute. Over the years, the members of ICC including members of the AU had firm believe that the court had the jurisdiction of maintaining international law and order. The main objective of the Rome statute was to try and prosecute perpetrators of crime against humanity and genocide (Osisa.org, 2015).  Nevertheless, African Union has in the recent years been very critical of the court and its practices. As a result, the African Union has been contemplating on the possibility of introducing an African criminal court that meets international standards. This paper will give a detailed analysis of the path to the introduction of an African criminal court and cut ties with the ICC.

Interests and issues at stake

The major area of concern to most of the members is the selective prosecution that African states believe is applied in ICC. Ever since the establishment of the international criminal court, most of the cases handled in this court involves crimes allegedly committed in the African continent. This has not augured well with African leaders since they view selective application international criminal law. According to the African Union, there is a skewed power relation in the UN Security Council, which has the obligation of referring cases to the international court. AU feels that referral f the Libya and Sudanese region of Darfur to the court and leaving behind the cases in Syria and Israel is a great sign of selective administration of justice (Protocol of the Court of Justice of the African Union, 2014). In essence, African Union has conclusively asserted this as the greatest ant-African bias. This has resulted in the increased desire for the Africa continent to own its crimes and its leaders.

Although most of the cases handled in the ICC are of crimes allegedly committed in Africa, it is clear that Africa has experienced more atrocities and thus making it essential for the court to focus on these incidences. To make the matter worse, most of these ongoing cases have been forwarded to the ICC by the concerned countries. It is important that the victims of these atrocities get justice as it is clearly stipulated in the international law. In most cases, opponents of the international criminal justice are the political elites in the African countries and the victim’s plight is neglected to a great extent (Imoedemhe, 2015). Despite the great concern for the victim’s plight, it is also worth understanding that there exists a serious problem that should be addressed immediately. ICC needs to apply equal justice to all states if its authority remains relevant. Increased impunity from the court on African countries will only lead to increased discontent thus making the threat to forming an African court real (Osisa.org, 2015). The frustration of African countries was evident in2012 when Desmond Tutu refused to share the stage with former British Prime Minister Tony Blair for his stand on the war in Iraq.

Most African leaders consistently feel that the court has failed to address the issue of selective justice comprehensively. This connotation overrides the plight of victims of crime against humanities and other atrocities that are eminent in the African continent. Matters were made worse by the former court’s prosecutor, Luis Moreno-Ocampo, for failing to partake discussions with the African Union. In fact, the former AU chairperson is quoted citing his dissatisfaction with the kind of justice administration by Ocampo.

Although some of the cases handled at the court were referred to ICC by concerned countries, there are also instances, (Libya and Darfur) that were referred by the UN Security Council. The African countries are worried that the Security Council has been proactive in the referral of African cases at the expense of crimes from other parts of the world. The matters have been made worse by the prosecutor’s proprio motu powers as outlined in Rome statute and give the prosecutor powers to pursue or discard referred cases (Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 2014). The AU has noted with great concern that the prosecution in this court are proactive in pursuing African cases and assume atrocities happening in other parts of the world.

Another major area of concern for the AU is the perspective that the court is being used as a secret weapon by the countries from the west. The AU asserts that these countries can manipulate the court process o ensure that leaders in African countries are only those who are pro-west. This was the major reasoning behind the Sirte Resolution of 2009 that called for AU non-cooperation with ICC (Jalloh, Akande and du Plessis, 2011). Most African countries and members of the ICC, such as Kenya, South Africa, Malawi, Chad, and Djibouti, have refused to arrest Omar Al Bashir despite arrest warrants from the ICC. Most of these countries have cited application of double standards in the implementation of international justice.

It is worth understanding that most African states are signatories of the Rome Statute. Nevertheless, in the recent years, AU is on the offensive against the court and feels that it is the high time Africa owns its crimes and its leaders through the establishment of African criminal court. This has resulted from the decline in hopes that motivated most states in backing the Rome statute in the 1990s (Osisa.org, 2015). It has been followed by other arrests in Rwanda and DRC that brought about sour relationship between Africa and Europe. From this point onwards, African leaders are of the opinion that the court is used to harass African leaders. In 2008, the AU urged member states not to cooperate with western powers that issued arrest warrants against African leaders, and this was the beginning of the route to establishing African court.

Additionally, the relationship between AU and the ICC became worse in 2009 after the court issued a warrant for arrest against the Sudan’s president Bashir. The AU felt that this was an impediment to the efforts of peace and reconciliation in Darfur, which had gained major strides under the stewardship of the AU (Imoedemhe, 2015). The union felt that ICC had total disregard for this process and undermined the authority of the Union (Protocol of the Court of Justice of the African Union, 2014). Secondly, the union was not happy with this warrant since Sudan was not a member of the Rome statue this was considered an illegitimate efforts by the court. The African Union viewed this as an intrusion of domestic affairs by the international court.

The other area of conflict between the African Union and the international criminal court is on the issue of customary international law on senior state officials. The court’s intention to prosecute President Bashir of Sudan and President Uhuru Kenyatta of Kenya in their official capacity has not augured well with the union. The head of states have immunity from legal proceedings, and the court fails to guarantee such immunity to African heads of states. Article 27 of the Rome statute fails to protect the head of states from prosecution and thus making it difficult for these people to enjoy immunity (Osisa.org, 2015). Though article 98 of the same state may assert automatic waiver of impunity to their official, the intended prosecution of Sudan’s Bashir should be an exception since Sudan is not a signatory to the statute. In essence, the question of immunity has been a burning issue as far the international law is concerned.

The recent development of the route to the establishment of the African criminal court has been escalated by the Kenyan cases facing President Kenyatta (though was later dropped) and his deputy Ruto. Since the two cases were mentioned in 2013, the Kenyan government has successfully lobbied for the referral of the cases locally a bid that was supported by all members except Botswana. This could be the stepping stone to the establishment of an African Court.

Formation of African criminal court and way forward

The latest development and critical approach that AU has towards international criminal court could indicate possibilities of finding an alternative or substitute for the ICC. This could only be realized through the formation of African criminal court that with mechanisms to try international crimes.  This process was kick-started in 2010 when there was the attempt to amend the Protocol on the Statute of the African Court of Justice and Human Rights with intention of expanding the court’s jurisdiction to enable trial of transnational and international crimes. This establishment would ensure that perpetrators of genocides, crimes against humanity and war crimes would be tried in this court (Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 2014). Additionally, terror suspects, corruption and piracy culprits can also face justice in this court.

The process of establishment f this court is at the advanced stage since as at May 2012, a draft protocol had been adopted by legal experts from different governments. Nevertheless, the road to a successful establishment is still a long one, and various strategic measures are indispensable for successful implementation. For instance, the question of affordability of this court is a major area of concern in the process of establishing the court (Osisa.org, 2015). Despite the massive investment required for an effective court, the desire for a good court outweighs other costs. From the past experiences, it is evident that Africa as a continent has suffered immensely from war crimes and related atrocities (Protocol of the Court of Justice of the African Union, 2014). The plight of such victims remains a prerogative of the international law and hence if the AU wants a smooth transition from ICC to an African court, then the massive investment is imminent.

The operations of the ICC are funded by member states. It is worth noting that the court has huge budget ranging from staff salaries, witness protection and payment of utility bills.  These expenses would also be incurred just in case the establishment of an African Court becomes a success. As at now, most of the AU members fails to pay their fees to the ICC, which has over the years handicapped the operations of the court. If this trend continues in the African court, there are chances that the court may fail to realize the objective of ensuring justice to victims of genocide and war crimes. The estimated cost of a single ICC trial is US$20 million which is almost 14% of the AU’s annual budget. An African court is expected to have a larger budget taking into consideration the rate of crimes against humanities and genocides experienced in Africa (Imoedemhe, 2015). With such huge budgetary needs, there is great importance for the policy makers to have a clear budget system for the court.

The effectiveness of the court will also be another concern for the policy makers. African political elites are known only to mind their business and not the plight of the victims. For instance, most African leaders were pro-ICC until recently when their interests seemed to be violated by the practices of the court. For instance, President Yoweri Museveni of Uganda was pro-ICC when the court was after the Lord’s Resistance Army. However, he later changed the course, and he is now against the practices of the court. Most of these African leaders cannot be trusted with the legal proceedings of this court since they are likely to interfere with the jurisdiction of the court (Protocol of the Court of Justice of the African Union, 2014). There are high chances that the court may be toothless just a few years after inception due to interference from the leaders just like they have been against the ICC.

In the modern African continent where the number of atrocities is on an upward trend, there is no excuse as to why there should be no a perfect criminal court. Despite the shaky relationship between AU and the ICC, presence of a serious criminal court is not an option. In my opinion introduction of an African Court is not a solution to this problem. Most of the shortcomings from the ICC are orchestrated by elite political class in need of political mileage. It is therefore prudent that intensive brainstorming take place before AU decides to quit ICC (Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 2014). I believe that these challenges are better discussed that opting for an ICC substitute destined to fail miserably.

References

Abou Jeng, Peacebuilding in the African Union : Law, Philosophy and Practice. Cambridge:     Cambridge University Press, 2012, pp. 1-20 and 46-59.

Imoedemhe, O., 2015. Unpacking the Tension Between the African Union and the International Criminal Court: the Way Forward. African Journal of International and Comparative Law, 23(1), pp.74-105.

Jalloh, C., Akande, D. and du Plessis, M., 2011. Assessing the African Union Concerns about Article 16 of the Rome Statute of the International Criminal Court. African Journal of Legal Studies, 4(1), pp.5-50.

Osisa.org, 2015. Pushing African Court to have jurisdiction over international crimes | Open Society Initiative of Southern Africa (OSISA). [online] Available at: http://www.osisa.org/openspace/regional/african-court-worth-wait

Tiyanjana Maluwa, ‘The OAU/African Union and International Law: Mapping New Boundaries or Revising Old Terrain?’ American Society of International Law, Vol. 98 Mar-Apr 2004, pp. 232-238.

‘How close is an African criminal court?’ Johannesburg: IRIN, 13 June 2012

http://www.irinnews.org/report/95633/analysis-how-close-is-an-african-criminal-court

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