FromFrom: Judy Miriga

Good People,

No one is above the law whether big or small, and all must play by the same set of rules without discrimination or favor. The Law must remain a guiding principle where peoples Government must function and resolve problems conflict with injustices reign.

Kenyan victims and people after good leadership want to see justice to be serviced without delay. It is here where the constitutional responsibility must deliver service to people justly.

African Union in their fury call against ICC Hague had failed to realize that corruption and impunity is the cancer in Africa the reason why Africa has failed and are dug into extreme poverty and people daily live under fear of oppressive rule of death, crime, violation and abuse of Human Rights; and without good democratic principles where just rule of law is not readily applicable or made functioning. How will Unity for common good work if discipline, law and order is not a preserve for those in leadership and there are no room for good governance with just rule of law to thrive??

Africa is able to produce good results from Progressive Development Agenda, only if good discipline and respect is instilled in a democratic Governance. But if corruption and impunity, Pirating, currency trafficking, proliferation of arms, mushrooming of organized Militia groups, Land Grabbing, Government contracts are being dished out through cronyism; peoples government is threatened, then, leadership is in serious question and hopes for better future is very slim.

This is true with Kenya today which is why the position of African Union against ICC Hague comes as a shock to many. We are worried that AU is turn-coat and whether they will accomplish anything in their mission to address and fix corruption with injustices from growing and getting out of control looks unlikely.

Therefore, Africans all over the world will unite to fix their problems the way they know how since, the Constitutional Reform will remain far-fetched if leadership by crisis, are what African Union believe in and support.

It is time African Union leadership come clear from the wild attack on ICC Hague…….

Judy Miriga
Diaspora Spokesperson
Executive Director
Confederation Council Foundation for Africa Inc.,
USA
http://socioeconomicforum50.blogspot.com

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Africa: Desmond Tutu – ‘This Is a Fight for the Soul of the Continent’
By Kyla Herrmannsen, 13 October 2013

Photo: Boniface Mwangi/RNW

Post election violence in Kenya 2007

Desmond Tutu cackles loudly, his distinctive laugh filling the room, words of wisdom at the tip of his tongue. Just recently, I feel Tutu has less to laugh about than usual. He has been the driving force behind condemnation regarding Africa’s appeal to either leave the ICC or to insist that African leaders who are in office do not need to appear before the court while leading their country.

He has said candidly and simply, “The ICC has been a powerful force for justice, peace and accountability not just in Africa, but around the world. Far from targeting Africa, it has served and protected Africa”. He argues the ICC is far from the ‘white man’s witch hunt’ as disgruntled African leaders are insisting.

The situation has arisen – driven strongly by Kenya – out of a desire for newly elected Kenyan president Uhuru Kenyatta and his deputy, William Ruto, to avoid appearing at the Hague while they are serving their time as heads of state. The main argument has been ‘how can a head of state be expected to appear before the ICC? This has never happened before’. What everyone is potentially – or conveniently – forgetting under the haze of their rage is the pure absurdity that Kenyatta was elected in the first place.

Get out of jail free card

Being sworn in as president is not a ‘get out of jail free card’. If anything, a trial by fire – or by ICC – is necessary at this time. Surely you wouldn’t want a potentially convicted criminal, responsible for mass deaths and inciting tribal violence, to be the man who sits in office and makes key decisions that will affect your country for years to come? Many have argued Kenyatta and Uhuru’s campaign to avoid the ICC is childish and, more importantly, a slap in the face of those who died during the post-election tribal violence in 2007. I must say, I wholeheartedly agree.

The need for accountability

Tutu knows what he’s talking about when he speaks about operating with impunity and the need for some kind of accountability. He was a driving force behind the Truth and Reconciliation Commission (TRC) which sought to either punish or grant amnesty to those who had committed unspeakable hate crimes under the apartheid-era. While some remain critical of the TRC’s success or methodology, it can strongly be argued the TRC tirelessly negotiated a potentially explosive situation with the utmost tact and care. A true ‘African solution’ for an ‘African problem’.

But, times have changed, and the TRC model will not work for every country. It requires buy-in and support from a nation’s leadership. If a nation is lead by a tyrannical maniac, a process like the TRC will not be allowed to take place. Therefore, tyrannical maniacs need some kind of force – external to their country – that can intervene and point out their wayward ways and hand down warranted punishment. Hence, the argument in favor of the ICC.

The ICC doesn’t have a vendetta against African leaders

A quick perusal of the ICC website’s list of ‘situations and cases’ reads like a veritable encyclopedia of African misdemeanors. The current list includes situations in Uganda, the Democratic Republic of Congo, Sudan, the Central African Republic, Kenya, Libya, Cote d’Ivoire and Mali. A closer look, if you withstand reading through this list of purported crimes against humanity, reveals a small disclaimer-like statement at the bottom of the page noting “the OTP [Office of the Prosecutor] is currently conducting preliminary examinations in a number of situations including Afghanistan, Georgia, Guinea, Colombia, Honduras, Korea and Nigeria”. So, there you have it: the ICC does not solely prosecute African countries. It is not on some kind of blatant vendetta against African leaders.

While the moniker of ‘African solutions for African problems’ gets bandied about at a rate second to none, it must be said that African countries who are signatories to the ICC did so of their own accord. 34 nations in the continent signed the Rome Statute.

A lawless continent

The call by African leaders to remove themselves from the oversight clutches of the ICC reveals a disregard for law and a blatant desire to side-step justice. In this regard, embarrassingly, the call only further cements what I can imagine some Western nations already think of Africa – a lawless continent where leaders act with impunity and rape, and pilage and butcher their people without the fear or necessity of accounting for their actions.

African leaders removing themselves from being accountable to the ICC is essentially Africa shooting itself – or its people – in the foot. It is not a move for Africa, but rather against Africa. As Tutu says, “it would signal to those currently perpetrating crimes against humanity that they may continue with impunity, and it would remove a strong deterrent against those who would consider such horrible acts in the future”.

A license to kill

Tutu further hits the nail on the head saying poignantly, “Those leaders seeking to skirt the court are effectively looking for a license to kill, maim and oppress their own people without consequence. They believe the interests of the people should not stand in the way of their ambitions of wealth and power.”

Thank goodness for Tutu, a man who speaks past the rhetoric of African defensiveness, choosing rather to focus on what matters. It is after all, the silenced people in this situation – those maimed and killed by tyrannical leaders – who should be the ones given the agency to decide whether African leaders should be tried by an international court. In their silence, at least the piercing cackling jovial Tutu stands firm.

Tutu said of the weekend conference, “Today’s meeting is a contest between justice and brutal violence. Far from a fight between Africa and the West, this is a fight within Africa, for the soul of the continent. May righteous Africans raise their voices and affirm the ICC and the rule of law.”

Kyla Hermannsen is a journalist for This is Africa.

Sudan frustrated at AU for failing to pull out of International Criminal Court
Updated Sunday, October 13th 2013 at 11:43 GMT +3

President Uhuru Kenyatta confers with Foreign Affairs Cabinet Secretary Amina Mohammed during the just concluded extra-ordinary AU Summit in Addis Ababa. (Photo:PSCU)

Khartoum, Sudan: The Sudanese foreign minister Ali Karti has blamed the absence of certain nations from the African Union (AU) extraordinary summit that took place Saturday in Ethiopia, for the failure to call for a mass withdrawal from the International Criminal Court (ICC).

The two-day meeting which convened on Friday saw the participation of many African leaders including two who were indicted by the ICC namely Sudanese president Omer Hassan al-Bashir and Kenyan president Uhuru Kenyatta.

But unlike Bashir, the Kenyan president along with his deputy William Ruto has so far committed to cooperating with the Hague based court which charged them with crimes against humanity in connection with 2007-2008 Post Elections Violence (PEV).

After Ruto and Kenyatta ascended to the presidency in elections held earlier this year, they lobbied their peers in the continent to support deferring or dropping the cases against them.

Their calls drew sympathy from a continent that appeared to be generally frustrated with a court they perceive to be targeting Africans only.

The ICC has opened investigations into eight cases, all of which are in Africa including Uganda, Democratic Republic of the Congo (DRC), Central African Republic (CAR), Darfur, Kenya, Libya, Côte d’Ivoire and Mali.

Five of the eight cases were referred voluntarily by the African governments in question; two through a UNSC resolution supported by all but one African member in the council at the time and the Kenyan one was opened at the ICC prosecutor’s request.

The ICC intervened after the Kenyan parliament shot down several attempts to establish a local tribunal in accordance with a power-sharing agreement brokered by former UN Secretary General Kofi Annan. Furthermore, many MP’s said they wanted the cases investigated at the Hague.

Nonetheless, Kenya along with Uganda pushed the AU for a summit to discuss the continent’s relations with the ICC. African officials initially said that an en masse withdrawal of African countries from the ICC will be on the agenda.

But later the proposal appeared to garner the support of few states besides Kenya, Sudan, Rwanda and Ethiopia. The last three are not signatories to the court.

The meeting ended up calling on the United Nations Security Council (UNSC) to defer the trials of Bashir and Kenyatta under Article 16 of the court’s Rome Statute which allows for a delay of a year subject to renewal.

“If that is not met, what the summit decided is that President (Uhuru) Kenyatta should not appear until the request we have made is actually answered,” Ethiopian Foreign Minister Tedros Adhanom told journalists in Addis Ababa according to Reuters.

“We have agreed that no charges shall be commenced or continued before any international court or tribunal against any serving head of state or government, or anybody acting or entitled to act in such capacity during his or her term of office,” Ethiopian Prime Minister Hailemariam Desalegn said.

But Davis Malombe, deputy executive director of Kenya Human Rights Commission, expressed rejection to the idea of a deferral.

“The AU’s call for a deferral of the cases against Kenya’s President and Deputy President is nothing more than another attempt to derail and delay justice for Kenya’s victims and betrays the AU’s purported commitment to fight impunity,” Malombe said.

“Victims have waited for over six years for justice. The UN Security Council has turned down two previous requests and it should do so again if such a request is presented before it” he added.

According to Agence France Presse (AFP), Kenyatta attacked the ICC saying it has been “reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims”.

“It stopped being the home of justice the day it became the toy of declining imperial powers,” he said in prepared remarks, accusing the ICC of “bias and race-hunting”.

“It is the fact that this court performs on the cue of European and American governments against the sovereignty of African states and peoples that should outrage us,” Kenyatta said, urging the AU to unite in the face of a “divide and rule” policy.

“Africa is not a third-rate territory of second-class peoples. We are not a project, or experiment of outsiders,” he added.

Sudanese foreign minister said that the meeting saw many calls for withdrawing from the ICC including from his government. He added that some countries while expressing readiness to walk out, said the time was not ripe for such a move.

He said that calls for withdrawal almost succeeded but still requires support by stronger steps, disclosing that this may become a real possibility for African ICC members if the UNSC does not respond positively to AU request for deferral.

Karti disclosed that unspecified states on Friday ministerial meeting adopted stances that “generally weakened” the African position.

“But in my overall assessment the meetings affirmed previous positions on not dealing with the International Criminal Court regarding any head of state” Karti said.

AU, Kenya and ICC: Beyond impunity

October 13 2013 at 10:59am
By Horace G Campbell
Comment on this story

REUTERS

The writer is of the opinion that if Kenya s President Uhuru Kenyatta and his deputy are innocent, then they should not be afraid to get their day in court.

If the Kenyan president and his deputy are innocent they should not be afraid to get their day in court, writes Horace G Campbell.

Johannesburg – This week Africa’s political leaders met in Addis Ababa to discuss whether African states should withdraw en-masse from the International Criminal Court (ICC) because of the indictment of Kenyan President Uhuru Kenyatta and Vice President William Ruto.

The extraordinary session of the AU was called to deliberate on international jurisdiction, justice and the ICC. At issue is whether the ICC has discriminated against Africans and whether the killings of more than 1 100 people in 2008 and the displacement of over half a million should be dealt with by international criminal law.

To ensure that the original reasons for the case before the ICC are not forgotten, it is urgent that the assembly of the AU remembers its mandate and foundational doctrine of non-indifference embedded in Article 4(h) of the Constitutive Act of the AU, mandating the continental body to “intervene… in respect of grave circumstances, namely: war crimes, genocide, and crimes against humanity”.

As such the special session of the AU has far more serious priorities. If Kenyatta and Ruto are innocent, then they can have their day in court and their exoneration before an international court can only convey greater political legitimacy to them.

As already stated, one aim of the AU when it was formed was to ensure that there was no impunity for those who committed crimes against humanity in Africa. If indeed it is the position of the African peoples that the ICC has discriminated against Africans, then the most urgent matter before this assembly was for Africans to build regional and national mechanisms to bring to justice those who commit crimes against humanity.

Unless the assembly could demonstrably guarantee the African peoples that the AU has genuine political will and capacity to thoroughly enforce article 4(h) of the Constitutive Act, to stem the criminal activities of desperate and selfish political leaders in Africa, any discussion about mass withdrawal from the ICC could be tantamount to self-delegitimisation.

It should be remembered that leaders such as Yoweri Museveni of Uganda, Paul Kagame of Rwanda and Isaias Afewerki of Eritrea, the three pressing the case for this special session, do not have the political legitimacy to demand that the AU withdraw from the ICC.

The referral of the 2007-2008 Kenyan post-election violence case to the ICC came not from imperialists but from the Panel of Eminent African Personalities established by the AU – with Kofi Annan as chairman and Benjamin Mkapa, former president of Tanzania, and Graca Machel, former first lady of South Africa, as members.

The ICC charges that Kenyatta and Ruto helped to fuel the violence that followed the 2007 elections. Both men have declared that they are innocent.

In the heat of this post-election struggle, imperial states such as the US and Britain wanted the matter to be put aside so that international business could continue to thrive in Kenya. Condoleezza Rice, then the US Secretary of State, flew to Kenya to ensure that western interests were given priority. The US Assistant Secretary of State for Africa, Dr Jendayi Frazer, represented Kenya as a base for the global war against terror and did not countenance any discussion about whether the election results represented the will of the people.

It was the Panel of Eminent African Personalities that was formally mandated by the AU on January 29, 2008, to mediate between President Mwai Kibaki’s Party of National Unity (PNU) and Raila Odinga’s Orange Democratic Movement (ODM); the panel was charged with finding a peaceful solution to the crisis.

One important outcome of the panel’s work was the referral of the cases of those behind the violence to the ICC. There had been a demand for the courts in Kenya to investigate the authors of the crimes but six years after this violence only 19 homicide cases have been brought before the Kenyan judiciary.

In May, Africa celebrated 50 years of unity. While the plan of the assembly of the AU was to prioritise the next 50 years (Africa 2063) during the deliberations, the agenda of the meeting was hijacked by the energetic efforts of the political leadership of Kenya and their allies to discuss the matter of the cases of Kenyatta and Ruto before the ICC.

Museveni had been as aggressive as the Kenyan leadership in placing the matter of the ICC before the AU assembly. At the end of the May 25 summit the AU chairman, Ethiopia’s Prime Minister Hailemariam Desalegn, charged that 99 percent of those indicted by the ICC were from Africa, which left the body in no doubt that the international court’s prosecutors were intentionally targeting Africans.

Desalegn stated: “The African leaders have to come to a consensus that the process the ICC is conducting in Africa has a flaw. The intention was to avoid any kind of impunity, but now the process has degenerated into some kind of race hunting. We object to that.”

The debate on the ICC intensified within the corridors of power in Africa, with those opposed to the ICC trials couching their opposition in anti-imperial discourse.

The AU’s final decision and the summit proceedings reflected the line of the conservative media in Kenya. As noted by one analyst, the Kenyan conservative media view adopted by the AU holds that: “The ICC is a tool of Western powers that targets and discriminates against the continent; undermines African efforts to solve its problems, especially finding peace and reconciliation in post-conflict situations; and is shot through with double-standards, focusing its firepower only on African countries such as Sudan, Kenya and Libya but not on Iraq or the Gaza.”

Both Museveni and Desalegn carried the same arguments to the General Assembly of the UN last month when they lobbied for the UN Security Council to call on the ICC to drop the case.

It is clear that in the current diplomatic overtures to drop the case against Kenyatta and Ruto, there are many who have forgotten the origins and enormity of the case and seemingly ignored the fact that its referral to the ICC was made by a panel of Africans mandated by the AU and acting in tandem with the non-indifference doctrine of AU’s founding document.

Against this backdrop, the AU could be projecting a posture of confusion, self-triangulation and self-delegitimisation if it allows its platform to be used for mass withdrawal from the court by some African leaders, without first investing in workable structures that can impartially and decisively bring to justice powerful perpetrators of crimes against humanity on the continent.

It was in the middle of the intense diplomatic activities by Museveni, who was campaigning for Kenya to boycott the ICC, when the Westgate bombings took place on September 21.

International sympathy for the Kenyan people and leaders heightened until it was revealed by the country’s media that the Kenyan intelligence and military had forewarnings of the bombing. This information created even more disquiet as there were now questions from far and wide about the nature of the attack.

While mourning, concerned Kenyan citizens are now posing important questions: Why did it take so long for the Kenyan military and security forces to respond to the attack?

Why was it that certain people were warned to stay away from the mall on that particular day?

Koigi Wamwere, a long-time activist from the peace and justice wing of Kenyan society, stated in an op-ed article that “someone should take political responsibility for Westgate”.

He wrote: “Amazingly, instead of accepting blame and responsibility for this tragedy, President Uhuru, Deputy President Ruto and their government are positioning themselves to reap political capital and professional gain from their own failure.”

If the current leaders of Kenya were not seeking to reap political capital from this tragedy, then they should have joined the rest of Africa in calling for the cancellation of the AU special session to discuss the case before the ICC. Presently, the situation in Kenya is too delicate for the matters of killings, bombings and extra-judicial violence to be brushed aside.

Last week, Muslim cleric Ibrahim “Rogo” Omar and three others were shot dead in Mombasa as they drove home at night after preaching.

The next day, after prayers, there were eruptions in Mombasa as passions over the killings spilled out into the streets. Four people were killed during clashes between police and those angered at the killing of a Muslim cleric. Seven people were also wounded during the disturbances, while a church was set alight.

One other Muslim cleric rightly called for an end to the extra-judicial killings on the streets of Kenya. Abubaker Shariff Ahmed, known as Makaburi, said the police were behind the killings of Omar and the others. “They should tell us the truth about Westgate, not kill innocent Muslims in Mombasa,” he told reporters at the scene of the wrecked car.

It was in the midst of this instability in Kenya that both Richard Dowden of the Royal Africa Society of the UK and Jendayi Frazer waded into the debate about Kenya and the ICC.

Dowden, in his article “Kenya after Westgate: more trouble ahead”, pointed out that there was more trouble ahead for Kenya and that the west should rally behind the country’s political leaders. Without a whisper of the machinations of the British government in Somalia and the efforts to corner contracts for the exploration of oil, Dowden warned that there would be “more attacks like Westgate in Africa, spreading to countries on the southern border of the Sahara”.

He concluded that the attack on Westgate was the beginning of the end of the ICC and the case against Kenyatta.

“Western governments will need a stable, strong government in Kenya. There is no way the West is going to allow President Kenyatta, who has shown good leadership qualities during the crisis (and his vice-president William Ruto), to spend months at a trial in The Hague and then go to jail,” said Dowden.

Frazer, who had worked closely with Condoleezza Rice to ensure that Mwai Kibaki remained President in 2008, has also written that the West now needs Kenya as a partner in the fight against terror.

Writing in the pro-government newspaper in Kenya, the Daily Nation, Frazer argued that “attack will draw West, Kenya closer”. The key points of her argument were that: “It is now time for the West to fully embrace Kenya’s new democratically elected government and respect its institutions.

“Put more plainly, the ICC cases against President Kenyatta and Deputy President Ruto have become a distraction reflected clearly by the need to suspend Ruto’s trial for a week to allow his return home to attend to the Westgate crisis.”

Frazer represented the conservative Republican administration as a diplomat. It is questionable that the very conservative wing of the US political establishment is now coming to the defence of Kenyatta and Ruto.

The US is not a signatory to the Rome statutes, yet the conservatives are calling for Africans to forget the crimes committed in January 2008 in order for Kenyatta and Ruto to focus on the global war against terror.

The defence of Kenyatta and Ruto by Frazer and Dowden has complicated the two Kenyan leaders’ strategy of presenting themselves as anti-imperialists. When the AU meet this week to discuss the case for mass withdrawal, African leaders should bear in mind that it was the activism of the Caribbean and African states that brought the ICC into fruition. It will be important for the AU to join with the Kenyans to support the commission of inquiry into the Westgate bombings.

I share the opinion of Pan Africanists who believe that if Kenyatta and Ruto are innocent they should not be afraid to get their day in court.

The AU should be working hard to ensure that there is no impunity in Africa. Other organs such as the African Parliament and the Economic, Social and Cultural Council of the AU need to engage in this discussion about impunity in Africa.

* Horace G Campbell, a veteran Pan Africanist, is a visiting professor in the School of International Relations, Tsinghua University, Beijing. He is the author of Global Nato and the Catastrophic Failure in Libya: Lessons for Africa in the Forging of African Unity, Monthly Review Press, New York 2013.
** The views expressed here are not necessarily those of Independent Newspapers.
Sunday Independent