AU wants justice delayed -- but not, it says, denied

AFRICAN Union Commission chairwoman Nkosazana Dlamini-Zuma held an urgent meeting with UN Security Council envoys in Addis Ababa just three days before the start of the recent AU summit in an attempt to avert what looked like an inevitable crisis - the withdrawal of African states from the International Criminal Court.

For Dlamini-Zuma, who as South African foreign minister had been intimately involved in the diplomatic processes that led to the formation of the court in 2002, a decision to pull out would have been a serious setback.

Although the court is much criticised by continental leaders for what they say is a bias against Africa , it was set up with the active participation of African states . It was almost a decade after the horrific 1994 Rwandan genocide and African leaders - along with the UN and world superpowers - had been accused of doing nothing to stop the slaughter of more than a million people in three months.

For Africa, the court meant the end of a shameful international history of impunity in which leaders and organisations responsible for gross human rights were never punished.

African Renaissance proponents, including then-president Thabo Mbeki, saw respect for human rights as one of the key pillars in the struggle to make the 21st century "the African century". Institutions such as the court, they argued, would help to discourage violent conflicts in Africa and elsewhere and so create conditions for peaceful growth and development.

But a decade after the court was formed, Dlamini-Zuma and other like-minded continental leaders found themselves last week desperately searching for ways to keep 34 AU member states from withdrawing from the court en bloc.

At the centre of debate were the controversial criminal trials of Kenya's President Uhuru Kenyatta and his deputy, William Ruto, who are facing war crimes charges related to the 2007 Kenyan post-election violence that claimed more than 1000 lives. They are accused of orchestrating the violence against rival groups.

Supporters of the two men argue that the cases should be tried by Kenyan courts and say the international court process is an attempt by "Western powers" to impose their own preferred leaders on Kenya.

The international court cases have proven to be a headache for both men since their election this year because of a real prospect of them spending much of their term of office attending court proceedings in the Hague.

The court conceded that Kenyatta and Ruto would not need to be physically present in court during all the proceedings. A recent appeal against that decision by deputy prosecutor Fatou Bensouda has enraged the Kenyan government and the AU.

Their argument, supported by President Jacob Zuma, was that the Kenyan government would collapse with both men in court, because the East African nation's constitution does not allow for the president and his deputy to be out of the country at the same time.

Given the recent terror attacks at a Nairobi shopping mall, the AU argues that the country cannot afford political instability.

"We should not allow Kenya to slide back for any reason, and the AU is keen to see stability and an improved security situation in Kenya. This requires the undivided attention of its leadership to consolidate and create conditions for lasting peace, security and reconciliation," said Dlamini-Zuma at the start of the heads of state summit on Saturday last week.

The relationship between Africa and the court is a complex one, with some heads of state charging that it targets African leaders but turns a blind eye to human rights abuses in other parts of the world.

But even though the AU took off the gloves last week as it prepared for a major confrontation with the court over Kenyatta and Ruto, the summit revealed deep-seated differences among the continent's leaders over how to relate to it.

After much debate behind closed doors, the AU eventually decided not to back Kenya's call for a withdrawal - but demanded that the court defer the cases for a year. It also demanded that no future heads of state should be tried by the court until after the end of their term of office.

Dlamini-Zuma and other AU leaders must now lobby the support of the UN Security Council on these positions. It is not clear yet whether they will succeed, because there are fears that granting incumbent leaders immunity from prosecution could encourage those who fear being charged for human rights abuses to stay in power permanently as a way to avoid being hauled to court.

The fact that Kenya, despite all the anger against the court and its alleged preoccupation with African leaders, failed to convince its counterparts to withdraw demonstrates that the AU is not a homogeneous club bent on protecting its members at all costs.

The truth is that the AU remains largely divided between the Francophone and English-speaking countries. This is further complicated by ideological differences that have existed between pro-Western countries, such as Senegal, Liberia and Botswana, and those led by former liberation movements, such as Zimbabwe, Tanzania and South Africa, who are always wary of any foreign involvement in African affairs.

The position becomes even trickier because a number of current members have the court to thank for the political stability they now enjoy.

Leaders such as Liberia's President Ellen Johnson-Sirleaf benefited from the transfer of her predecessor, Charles Taylor, to the Hague. Ivory Coast's President Alassane Ouattara would also not dump the court, because it is currently prosecuting his old rival, former president Laurent Gbagbo.

AU leaders recognise that they cannot boycott the court without a strong alternative legal body in place, because this would plunge the continent back into the era of impunity.

Even though AU leaders resolved to give teeth to the impotent African Court on Human and People's Rights - to try criminal cases and war crimes against individuals - that may never materialise. An African court of justice has not taken off precisely because not enough African countries (15 are required) have ratified the 2008 protocol to establish it.

The Arusha-based human rights court has achieved little since its founding in 2004, having only successfully tried one case. Fewer than half of the 54 member states have ratified it.

As Dlamini-Zuma marked her first year as AU Commission chairwoman on Tuesday, she would have been happy that she had helped to avert a withdrawal that would have put Africa's commitment to human rights into question. But she now has the difficult task, alongside leading figures in the AU, of convincing the court and the UN Security Council to buy into Africa's call for the Kenyan cases to be suspended.