Arusha. President Jakaya Kikwete has cautioned the African Union (AU) member states over attacks against The Hague-based International Criminal Court (ICC), lest they were perceived to condone impunity.
As some African countries push for the establishment of an own court with a mandate to try crimes against humanity, Mr Kikwete said aggression against the ICC was sending a negative signal to the rest of the world.
Many countries in the continent are however yet to adopt resolution AU/Dec.213 (XII) that seeks to grant jurisdiction to the African Court on Human and People’s Rights (AfCHPR) to try international crime. The court’s sit is in Arusha, Tanzania.
But unlike the ICC, the AfCHPR will grant sitting Heads of State and Government immunity from prosecution against such crimes despite a spirited effort by rights campaigners in Africa to have the common people sue their leaders in the African court.
President Kikwete’s tacit support for ICC yesterday is likely to raise eyebrows, especially considering that like many other countries, Tanzania is yet to sign the AU resolution on the extension of the African court’s jurisdiction to try crimes against humanity.
President Kikwete’s stance will also be viewed as a turn-around following his recent public criticism of the ICC for what he said it was biased towards African leaders.
In Tanzania, where the opposition coalition (Ukawa) have threatened to seek ICC’s intevention over what they view as human rights violation in the ongoing General Election campaigns, Mr Kikwete’s apparent defence of ICC will most likely raise eyebrows. Regionally, it will also not stand well with the contrasting views that have been expressed openly by Tanzania’s neighbours and members in the East Africa Community Kenya and Uganda.
President Yoweri Museveni of Uganda is on record as condemning the ICC for its trial against his Kenyan counterpart Mr Uhuru Kenyatta and deputy Mr William Ruto.
Mr Museveni contends that it was a blatant disregard of the African norm and customs for ICC to hound sitting presidents for whatever reason. He has branded the court imperialist and vowed to lead in the push for AU members to withdraw from the Rome Statute.
Mr Kenyatta who was indicted by the ICC in connection with the post-election violence in Kenya during the 2007/08 elections had his case dropped for lack of enough evidence to prosecute him. ICC then complained over the Kenyan government’s lack of cooperation in handing over key evidence against Kenyatta.
But his deputy Ruto and local television journalist Joshua Sang’ are still facing trial in The Hague over the same violence which left nearly 1,300 people dead and over 600,000 others internally displaced.
Kenyan leaders are currently engaged in a public campaign to defend Mr Ruto and Mr Sang’ from possible jailing in the foreign court. ICC’s Prosecutor Fatou Bensuda has rested her case against the two but her successful application in the court to use recanted witness evidence to continue the Kenyan case has sparked a vitriol against ICC back in Nairobi.
But in his address to the African court in Arusha yesterday, President Kikwete said: “I believe it is not in our best interest (to attack ICC). This would be an anomaly that will need to be corrected,” he stressed of the need by African leaders to align their act with the dictates of the court. He, however, did not directly refer to any country or leader by name.
President Kikwete explained during his one-hour tour to bid farewell to the court that by adopting the resolution on international crime, Africa would strengthen the institution. He spoke only two days after receiving the African Achievers Award in the category of Good Governance in Africa that was granted recently in South Africa.
But last month, President Kikwete castigated the ICC for what he termed as discriminately taking African leaders to task while turning a blind eye to European culprits.
Speaking at the the Annual Southern Africa Development Community (Sadc) Lawyers Association General Meeting, Mr Kikwete was particularly tough on ICC with regard to the Kenyan case he termed unfounded.
“ICC should immediately stop persecuting African leaders,” he was quoted as saying.
“There is quite a number of European leaders with records of crime against humanity but they are neither questioned nor stand trial,” he said, adding that African leaders were dragged to court for lighter offences.
He said ICC has been in the fore in persecuting African leaders like Sudan’s President Omar al-Bashir who avoided arrest in South Africa on charges of masterminding genocide in Sudan’s Darfur region.
“Powerful nations deserve prosecution the same way as the weaker ones,” he said.
Justice Augustine Ramadhani, the AfCHPR president, paid a glowing tribute to Mr Kikwete for his determination to have the seat of the court in Arusha and provide it with office accommodation, 20 acres of land for the construction of its permanent premises, and a $100,000 contribution to the court’s Legal Aid Assistance fund. “It’s just befitting that the court should be hosted in this country to continue to its logical conclusion the noble mission embarked on in 1960s of protecting and enforcing human and peoples’ rights,” Justice Ramadhan said.
Mr Kikwete had during the tour also launched a Kiswahili version booklet containing basic facts on the court with a view of promoting the continent-wide legal facility among Africans speaking the language.
He said the booklet would go a long way in promoting public interest and ownership of the court, as the language, which was spoken in Eastern, Central, and Great Lakes African countries, was official to the East African Community, the International Conference on the Great Lakes Region, the AU, and by implication, the AfCHPR.
Since its inception a decade ago, the AfCHPR has received 50 applications of which 22 have been filed against Tanzania, five against Rwanda, two against Burkina Faso and Cote d’Ivoire each, and one against Malawi and Mali each.
According to Article 5 of the protocol establishing it and its rule 33, the court may receive complaints or applications submitted to it by the African Commission of Human and People’s Rights, or state parties, or the continent’s intergovernmental organisations.
Non-governmental organisations (NGOs) with observer status before the AfCHPR and individuals from states which have made a declaration accepting the court’s jurisdiction can also institute cases directly before the court.
But barely 29 out of 54 African states have to date ratified the protocol of which only seven — Tanzania, Burkina Faso, Ghana, Cote d’Ivoire, Mali, Malawi and Rwanda — have made the declaration to allow their citizens and NGOs to file their applications to the court.
Judge Ramadhani once told The Citizen that the AfCHPR was persuading the AU heads of state to revoke the law requiring them to make declaration accepting jurisdiction of the court. Judge Ramadhani said unless law stipulated in the Protocol establishing the court was amended the doors would remain closed to ordinary Africans wishing to access the court.