Disenfranchising the ICC

Aisha Buhari’s concern for the leadership in her country prompted her husband’s controversial response: “I do not know which party my wife belongs to, but she belongs to my kitchen, and my living room and the other room”. That some African leaders suppose her role on the continent as selective and therefore unnecessary in the country’s politics is odd and intriguing.

This attitude is what afflicts Africa. A spirited fight against impunity is undermined in many ways possible.

The International Criminal Court (ICC), brace yourself.

When South Africa surprised the continent with her plan to withdraw from the ICC, not only did she drop the bomb but also fanned the continent’s exit rumours. Gambia, the ICC’S Chief Prosecutor, Fatou Bensouda’s home country, is also pulling the plug. Gambia’s Information Minister, Sheriff Bojang’s statement that ‘…for the prosecution of Africans and especially their leaders…’ cements the country’s plan to withdraw from the Rome Statute. It also depicts the ideology many African leaders hold against the Court.

Gambian President Yahya Jammeh is not one to mince his words. If his government has decided to withdraw ahead of the 1st December presidential elections where he will stand for a fifth term, Gambia will pull out of the ICC.

Should the ICC worry?

 With the power, since 2002, to look into and prosecute international crimes including crimes against humanity, war crimes and genocide, the ICC’s sacred hub at The Hague looks threatened. The number of her signatory members exiting or declaring plans to exit the Rome Statute is overwhelming. First, because it is the countries with a sensitive history of war crimes, civil unrest and racial conflicts; and second, these countries, though with a sense of peace, now experience bouts of violence.

For South Africa, the major concern is her failure to arrest and produce the great leader of Sudan, President Omar al-Bashir to the Court: ‘great’ because leading the largest nation on the continent is difficult, as so is allowing larger region of the nation to secede, eventually.

Considering Burundi and South Africa exits, Namibia’s, Kenya’s, and Uganda’s plans on the subject, obviously the issue of whom the accused is, before the ICC, is of concern.

Before states consented to the Rome Statute, I assume representatives from many African countries barely had time to digest and foresee the affects the law would have, without major nations (aid and grant giver) participation. And neither had they consulted extensively on the matter, as seen from present democratic policies vis-a-vis previous guerilla and non-military wars.

Although states have recognised symmetrical means of war, they still face isolated cases of asymmetric conflicts. From civil and political unrest in South Sudan, Burundi, Democratic Republic of Congo, to ethnic clashes, defiance campaigns identified with violence, post-election violence, terrorists and genocide, Africa has limited action points to reclaim peace in her conflict zones.

We can assume that a vocal opposition neither reflects peaceful transition nor an optimistic way of leadership. (See President Jacob Zuma versus Thambo Mbeki). Signing, and not confirming the Rome Statute, like the United States of America is not good enough. For a superpower to assume influence and decide who stays and who leaves the Court’s jurisdiction makes other sovereign state leaders feel feeble because they have witnessed Iraq and Afghanistan, invaded. Such invasion settles unwell with many countries that still believe that invasion caused crimes against humanity and war crimes.

Sheriff Bojang said that;

‘There are many Western countries, at least 30, that have committed heinous war crimes against independent sovereign states and their citizens since the creation of the ICC and not a single Western war criminal has been indicted.’

The truth is, ‘immunity’ disenfranchises the ICC.

The African Union reveals a deep-seated discontent against the ICC and her ‘inequality’ and ‘targeted’ indictments and prosecutions. The body argues that although the ICC is an ‘International Criminal Court’ (in meaning); cleaning up leaders from Africa and not any other corner of the world, is her ill ambition.

Every Rome Statute signatory has a duty to follow the law it provides; yes, including withdrawing from the Statute.

Who bears blame?

If there is clear suggestion that only Georgia (Eastern Europe) and Africa have tasted ICC’s roving eye, then honestly, the Court is to blame, somehow.

Many propose that she indicts as many suspects as she has received complaints against.

Also, that ICC ought to respect the ‘immunity’ defence for sitting presidents during and after their tenure just like some have enjoyed on the Western bloc. However, the ICC, a funded body, of course, risks biting her donor’s hand.

Africa Union’s Chairperson, Mr Hailemariam Desalegn statement that, ‘….The intention was to avoid any kind of impunity…but now the process has degenerated to some kind of race hunting…’, shows that discontent is on the procedure, not the law. He argues the issue is with practice by the Court, and not than the law.

The system, is failing the Court.

Does this mean that South Africa could have easily honoured the Court’s arrest warrant?

 Yes and no.

Yes, to the extent the process respected and followed principle.

No, to the extent that South Africa recognises ‘immunity’ which it accuses the Court of not recognising therefore the clash.

So, what next?

 The ICC’s mandate to prosecute ‘individuals’ means that other like individuals or intending individuals will try to avoid any prosecution for acts they may commit while in the same position. Perhaps, withdrawing of nations from the ICC will allow a peaceful exit of some leaders. Withdrawing, however will create a loophole for the ‘untouchables’ on the continent.

Question is: Is the African Union ready to disenfranchise and replace the ICC?

 Yes, and no. If yes, it could simply be a move from Old Trafford to Nyayo. That since ‘the big boys’ fund the ICC and therefore receive favour, making it look like the former plays the latter; the African Union will do the same because it is her member states (yes, leaders) who will fund it and possibly also be the ones to prosecute.

What are the odds?

 There is smoke and fire at the ICC. If some African Union leaders accuse the ICC of being ‘corrupt’, acting for some and against others, something is amiss.

And this too: the ICC is addressing sensitive issues on the African continent, issues affecting Africa and perpetrated by her leaders, which issues are under the Court’s direct mandate.

That said, a member state of the Rome Statute has every right to opt out of the treaty. Unfortunately for such member, there is no opting out of recognising and respecting basic human rights where crimes against humanity, war crimes and genocide are intolerable by the domestic and international courts.

Therefore, Aisha Buhari’s opinion has a good foundation. If she belongs to all rooms he says she does, she still can refuse to vote for impunity despite her ‘wife’ status.

With or without the ICC, African leaders can opt out of what they may call a system of ‘impunity’ and ‘bias’. But they cannot opt out of the social system of accountability and responsibility for offences and crimes against humanity, once committed by them.


This article appears in our weekly digital law magazine, The Deuteronomy Vol 7, Issue 4 of October 28th, 2016

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