While the AU Assembly of Heads of States just managed to agree to requesting the United Nations Security Council to ensure that the ICC defers its cases against sitting African heads of states, diplomatic sources at the meeting revealed that Kenya had wished AU withdraw from ICC or at least threaten to do so. It was learnt that the proposal was tabled both at the ministerial and heads of states levels of the AU summit in Addis Ababa.
Already, the Kenyan Parliament has voted to have Kenya withdraw from the ICC, but sources said the Kenyan delegation, even though had called for the extra-ordinary summit, was not very certain it would get the overall support of the AU leaders on its preference to have the 34 African nations that have signed up for ICC to withdraw their memberships.
Sources said the timely intervention of President Jonathan, followed by South Africa and a few other African heads of states “saved the day,” after the Kenyan delegation led by its President had made a very emotional appeal at the summit over ICC’s trial of the country’s President and Vice President. In fact, the Ugandan President who spoke after Kenya’s President, had also said Uganda was ready to pull out of ICC once the AU so decides.
For instance, at the AU Executive Committee level where ministers met on Friday, a day before the heads of states met, the Kenyan delegation “had made a very eloquent presentation of her case with a generous dose of emotion and sentiment, concluding that the ultimate goal of the ICC case was “to effect regime change in Kenya, pure and simple.”
But the ministerial meeting could neither reach agreement on a proposal that no AU member-state should refer any matter to the ICC without first informing and seeking the advice of the AU Assembly nor was there any agreement on the threat of mass withdrawal if the UN Security Council/ICC failed to accede to the request for deferral of the Kenya cases. Even there was no agreement for a proposal for another AU summit on November 25, 2013 to review progress on the matter. Also, there was no consensus on the demand that the Kenya trial be terminated forthwith. With that stalemate at the ministerial meeting, the Assembly of Heads of States meeting held the following day without a clear direction.
Normally, the ministerial meeting agreement would be what the heads of states would work from, but the Assembly of Heads of States opened without an agreed decision or declaration submitted for consideration by the Executive Council.
President Kenyatta reportedly delivered an equally sentimental speech, according to sources, causing a lot of emotional responses at the meeting, but no concrete or agreeable proposal on required action was directly tabled by the Kenyans, and many of the AU leaders were said to have been careful not to be caught on the wrong side.
According to a source in Addis Ababa, “heads of states were reluctant to take the floor after President Kenyatta spoke. President Museveni was said to have spoken next, endorsing everything President Kenyatta said, and after lampooning the ICC “in his characteristic style”, he informed of his singular mission to withdraw Uganda’s membership of the ICC/Rome Statute if the AU Assembly would so direct.
But sources said not until President Jonathan spoke was there a clear direction regarding what role AU leaders can and cannot play in the matter.
Jonathan, who had been expected to first deliver a formal address and was surprised the meeting was more of a closed-door session at the start, struck the nail on its head when he changed the tempo of the discussion by requesting “his colleagues to set aside sentiments.”
Jonathan, according to diplomats at the meeting, told other AU leaders that “no one could love the Kenyans more than the Kenyans themselves; no one could understand the Kenyans better than the Kenyans themselves; no one could solve the problems of Kenyans better than Kenyans and no external organisation could bring reconciliation and healing to Kenyans except Kenyans.”
Sources said Jonathan’s remarks then opened a floodgate of responses from other AU leaders, starting from South Africa threading the same path as the Nigerian president. A source said “immediately after the Nigerian President’s remarks, the entire electronic board was filled with requests for the floor, led by South Africa.”
It was then that the AU leaders eventually agreed that:
• African States parties to the Rome Statute should not withdraw from it;
• a demarche for deferral should be made to the Security Council;
• the problematic Articles of the Statute viz Articles 27, 63 and 98 should be amended;
• in addition, the Assembly agreed to establish a five-member Contact Group to interface with the UN Security Council on the deferral issue;
• Kenya’s decision that President Kenyatta will not attend court on November 12 as scheduled was endorsed;
• the decision that Deputy President William Ruto will cease to appear before the court should be endorsed; and
• the entire case against the two accused persons - Kenya’s president and his deputy - should be terminated.
Expectation that AU might decide to withdraw African nations from the ICC had actually caused a stir in western capitals around the world and at the UN headquarters where ICC was birthed. Human rights groups around the world had also formed a global coalition and spoke with one voice and with the support of two African Nobel Peace Laureates - Kofi Annan and Archbishop Desmond Tutu - all concluding that such a withdrawal by any African nation would be a shame.
In fact, after the meeting concluded without such a resolution that African nations pull out of the ICC, New York-based Human Rights Watch put out a statement over the weekend virtually applauding the fact that the AU did not call for withdrawal from ICC
According to the statement issued in New York by Elise Keppler, HRW Associate International Justice Director “at this summit, states reinforced the importance of the ICC when they didn’t bite on possible withdrawal.”
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