SALC is an active member of the African Network of International Criminal Justice, an informal network of African civil society organizations and international organizations with a presence in Africa working on Africa and the International Criminal Court (ICC). The Network has been doing some fantastic work. Its efforts demonstrate the importance of an active civil society in the fight against impunity in Africa.
More recently however, the Network has been monitoring Kenya’s wavering support for the ICC in the wake of the summons issued by ICC Prosecutor for those it believes to be most responsible for the post election violence, the ins and outs of which are available in the Networks briefing to the Kenyan government. Despite the Network’s call on the Kenyan government to support the ICC and comply with its obligations in terms of the Rome Statute the Kenyan delegation managed to convince the African Union at its January 2011 summit to support an article 16 deferral. The legal implications and the circumstances under which this article can be invoked have been set out quite clearly, first in relation to the AU’s support of a deferral of al-Bashir’s indictment and again in relation to a deferral of the Kenyan case (for an excellent overview of the circumstances in which an article 16 referral is applicable see Max du Plessis’ and Christopher Gevers commentary on the War and Law blog). In brief terms article 16 is not applicable to the Kenyan situation. In its declaration, the AU called on the Security Council to defer investigations and prosecutions of those implicated in the Kenya case. The AU went even further, calling specifically on the African members (South Africa, Nigeria and Gabon) on the Security Council to raise this issue at the Security Council.
Even if this issue makes it onto the agenda the United States and the United Kingdom have indicated that they would veto any request for a deferral. It would however still be extremely disappointing if South Africa, Nigeria or Gabon raised and supported this issue given that it is legally impermissible and would fly in the face of their international obligations as signatories to the Rome Statute
In response to the AU’s declaration the Network again mobilized and addressed a letter, signed by SALC, to the African members on the Security Council asking them not to accede to the AU’s request. Kenyan newspaper, the Daily Nation, published an article, highlighting the Network’s call on the African Security Council members. The text of the article appears below:
“States asked to reject calls for ICC deferrals
Thirty-six civil society organisations have appealed to Africa’s three permanent representatives to the UN Security Council to reconsider their support for the deferral of the International Criminal Court’s prosecution of post-election violence suspects.
According to a letter addressed to the Foreign Affairs ministries of South Africa, Gabon, and Nigeria, any deferral would be contrary to the law and would delay justice for victims of post-election violence.
The groups said there was no indication the ICC’s work in Kenya poses a threat to international peace and security.
“Rather than promote instability, the ICC’s investigations could counter a climate of impunity in Kenya, which many believe contributed significantly to the 2007-08 violence,” they said.
“Therefore, there is no merit in the suggestion that a deferral of the Kenyan case would act to prevent the resumption of conflict and violence,” they added.
The Assembly of Heads of State and Government of the African Union during its summit held in Addis Ababa, Ethiopia, endorsed Kenya’s request for a deferral.
This follows requests made by ICC prosecutor Luis Moreno Ocampo last year for summonses to try six Kenyans he believes bore the greatest responsibility for the violence.”
Kenya however remains persistent in its quest to secure a deferral. On Friday President Kibaki named his deputy Kalonzo Musyoka and six ministers as special envoys to lobby the United Nations Security Council member states to defer The Hague process for a year. Will South Africa or one of the other African members raise this issue? I certainly hope note. From a South African perspective South Africa’s voting has been spot on, let’s hope this positive pattern continues in relation to Kenya’s and the AU’s deferral request.