African leaders congregating in Kampala in July for the 15thAfrican Union Summit once again seem to have been out of touch with reality on what the victims of mass atrocities in Africa expect from them. During the Summit part of the agenda was consideration of a request for the establishment of an ICC liaison office in Addis Ababa.

This request though having come from the International Criminal Court to the African Union had the strong support of the African State Parties to the Rome Statute, who have viewed the existence of such an office as necessary in order to bring the ICC closer home and improve on the its interventions and work in Africa.

This position was indeed advanced during the Rome Statute Review Conference held in June 2010 in Kampala where the 30 African State Parties to the Rome Statute collectively through the Attorney General of Kenya wrote to the ICC questioning the delay and slow pace in effecting their request for the establishment of the liaison office and requested the ICC to work with the AU and speed up the process of setting up a liaison office in Addis Ababa. The ICC in following up this request visited the AU headquarters in Addis Ababa on 9th July 2010 ahead of the AU Summit where the chairperson of the AU Commission reiterated the African Union’s commitment to the establishment of the office as it would encourage dialogue and exchange of information between the two institutions.

At the Summit and quite strangely the African leaders chose to ignore the fact that the request for the establishment of a liaison office was supported by African State Parties to the Rome Statute, and decided to tie their decision to the discontent they had with the existing arrest warrants issued for President Omar Al Bashir of Sudan by the ICC. The result of such a misguided approach was a decision to reject until a future time the request for the establishment of the liaison office. The focus of discussions that was intended to improve the relations between the ICC and the AU was reduced to a mere discussion on the arrest warrants for President Bashir and the non-support that some African State Parties were going to demonstrate to the ICC.

It was and has been irresponsible for African leaders to express their discontent with the ICC based only on the arrest warrants issued for the Sudanese president. Sudan is not the only country that the ICC is working on in Africa, especially bearing in mind that with the other situation countries before the ICC - the Democratic Republic of Congo, the Central African Republic and Uganda it is the leaders of those countries who invited the ICC to assist with the prosecutions of the perpetrators of gross atrocities conducted in their countries. The other situation country before the ICC is Kenya and its government has constantly pledged its support for the ICC and its willingness to cooperate. The victims from these situation countries as well as those of Sudan look forward to justice being realized through the interventions by the ICC, any initiatives that would work towards a more effective realization of this justice are most welcome. For the AU Summit to then ignore all these factors and to choose to operate from a non cooperation platform based only on President Bashir’s indictments is to misapprehend the real issues.

African leaders need to rise above cronyism that does not serve the interests of Africans and that does little to engender the confidence of Africans. It was therefore commendable to have seen the seriousness with which the government of Botswana takes its obligations to fight impunity under the Rome Statute. Botswana was the only country to publicly indicate that they would not relent or compromise their obligations under the Rome Statute just to serve misguided resolutions by the AU that the obligations under the AU surpassed those of to the ICC. No other country has come out to publish a formal rejection of this misguided move despite African countries having participated as a united force at the recent Rome Statute Review Conference and pledged their support to and cooperation with the ICC. South Africa and Ghana are also reported to have voiced their opposition during discussions at the Summit to any moves to discredit the ICC. It remains to be seen if this was just rhetoric and only Botswana was committed to the pledges made at the ICC Review Conference. African Union be assured that Africa is indeed watching.

By Stella Ndirangu

Legal Officer

ICJ Kenya