By Hafiz Mohamed
October 14, 2013 - The African Union Leaders convene an extra- ordinary summit to debate the continent future relation with the International Criminal Court (ICC), the participants include the two indicted African leader president Omer Bashair of Sudan and the Kenyan president Uhuru Kenyatta. The two cases are different with regard to Sudan The ICC intervention came after the United Nation Security Council (UNSC) referred the report of the UN investigation committee for crimes committed in Darfur regional of Sudan as Sudan is not member to the ICC and the UNSC referral was under chapter 7 of the UN charter, the intervention in Kenya came after the Kenyan parliament shot down several attempts to establish a local investigation committee in accordance with a power-sharing agreement brokered by former UN secretary-general Kofi Annan.
There are some differences between president Bashir case and president Kenyatta , the Kenyan to some extend cooperating with the ICC and also in other regional and international matters such as Somalia, war against terrorism, that why president Kenyatta managed to attend the international summit on Somalia in London but president Bashir is not allowed to travel to any place even within the African continent at the time when there is decision from the African leaders not to cooperate with the ICC regarding the indictment of president Bashir , but he still facing many problems that clear when he visited Nigeria to attend the AU summit on Malaria.
But to the surprise of everyone the Kenyan president and his deputy both accepted to stand trial in The Hague, but the Sudanese government is lobbying since 2010 for the African country to collectively withdraw from the ICC and they are hoping to get such decision from the summit but the decision is very disappointing to them and they realised that they stand alone on this issue. The summit resolution came with nothing new as the AU is going to send a request to the UNSC asking it to intervene using Article 16 of Rome Statute which allows the UNSC to defer the prosecution to 12 months and the request may be renewed by the council under the same condition.
I think the African leaders got it totally wrong from the start as they all aware that the ICC only intervene if the national government is unwilling or unable to hold the perpetrators of serious crimes to account it is a complementary process and not replacing the national justice system if it can serve justice. The International Criminal Court Intervened by opening investigations into eight cases, all of which are in Africa including Uganda, the 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 case was opened at the ICC prosecutor’s request after the Kenyan parliament refused to establish investigations.
The African head of states supposed look at the justice systems and the law enforcement agencies into their own countries and ensure that they have enough safeguard to hold the perpetrators of such crimes to account but that isn’t the case in most of African country, as those countries are ruled by dictators and have corrupt systems with their security apparatus kill with impunity.
In the case of Sudan the AU head of states decided to establish the African Union High Implementation Panel chaired by president Mbeki with the membership of two former president and other 7 members mainly to look at the issue of Darfur and come out with recommendations to bypass the ICC, the AUHIP came out with the set of recommendations which include establishment of Hybrid court that was in 2009 , the question is where are those recommendations why the AU leaders are not able to force the Sudanese government to accept those recommendations and implement them, and that clearly shows everyone that they are either unwilling or unable to persuade justice for victims of those crimes and the GoS know how to manipulate the AU system and they keep doing that in many other occasions .
I think before holding extra-ordinary summit to discuss this issue they need to hold many extra-ordinary summit to answer very simple question Why after more than 13 years from the approval of the AU Constitutive Act still more of its provision not implemented , some provision don’t need money as that always an excuse Article 4(h) clearly stated that( the right of the union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and criminal against humanity) why the AU waited for the UNSC to established an investigation committee to look at the claims of grave violations of human rights in Darfur at the time when they sent in peace keepers.
Article 4(m) (respect for democratic principles, human rights, the rule of law and good governance) what is happening the most of Africa countries is in total contradiction with this Article. Those two sub articles need more than one extra-ordinary summit because if they properly implemented African people will be hundred times better off.
Where is the African Court of Human rights and the role which Africa people supposed to play within the union through civil society and other non- governments’ actors?
The main reason for transforming the Organisation of African Unity (OAU) into the Africa Union (AU) was because Africa has moved from the liberation face to more social, economic integration and democratic principles, the African project is very ambitious , aimed to create United States of Africa more economic cooperation , social and political integration will embitter the lives of millions of African still impoverished and lack basic services , at the time when our corrupt and unaccountable leaders smuggle millions of dollars abroad benefiting themselves and their cronies.
Even the AU mediation and peace keeping in Sudan faces many problems , it intervene in 2004 in Darfur we welcome that and thought we will find African solutions to the African problems but the mission failed and it had to be replaced by the join AU/UN mission even its consisted of more African troops but under the UN hat . the role of AUHIP in resolving the outstanding issues between Sudan and Republic of South Sudan at the same time act as mediator to the conflict between GoS and Sudan Liberation Movement- North(SPLM-N) which fighting the government in Blue Nile and South Kordofan, it is clear from following the progress of those two issues that without the intervention of the big actors in the International Community by using their sticks no progress will be made as the government of Sudan sign agreement after agreement and not implementing them , and in the case of the two areas in many occasion the GoS ignore the AUHIP invitations to start negotiations without any reasons and they know that no punitive measures will be taken against them that why they pick and choose what part of the agreement they want to implement and what they want to ignore . They managed to water down UNSC resolution 2046 specially in the case of Abyei by declaring that they accepted it but in reality they managed to prevent the AU Peace and Security Council from referring the case back to the UNSC, that why they prefer the African Union.
I understand the difficulties Africa faces but there is no excuse for corruption and mal-practices. The African leaders need to ask themselves why after more than 50 years of the independent of most of the African countries national government failed to run the affairs of their nations, leaving millions of young African looking for better life in Europe, USA and other western countries, they are hopeless to the extend they risk losing their lives instead of staying in the continent.
Just within the first week of October 2013 more than 350 young African lost their lives when their boat capsized between Malta and the Italian island of Lampedusa. The European Union is holding special meetings to discuss this matter but the AU doesn’t move one inch as if the dead young people are from other planet. What issue is more serious than this ,it need more that one extra-ordinary summit as those young people represent the future of the continent and they prefer dying looking for better future outside the continent and our leaders are meeting to give themselves licence to kill their people with full impunity, are our African leaders think African life is more cheaper and not deserve to be preserve and instead of governments serving the people in Africa people are servant to their rulers for nothings.
There are many issues which need immediate attention of the African leaders more far than the two ICC indictments, the issues such as:
1- The democratic progress in Africa and why after more than 50 years of the independent of most African countries we still have very few genuine democratic countries.
2- Fighting corruption in Africa and more openness and transparency.
3- More African economic cooperation and creation of African Single Market by removing barriers.
4- The progress towards achieving the Millennium Developments Goals (MDGs).
5- Clear peace and security strategies to stop the on-going wars in the continent and the devastating impact that have in the lives and livelihood of millions of African.
6- Many others issues.
Those are the issues which are matter to millions of African people, and the AU must give them the priority 50 years after the establishment of the OAU which later turned into AU.
The African Union supposed to be the people union and not a dictators club, but it seems to me it will remain as it’s for very long time.
The author is civil society activist and the director of Justice Africa Sudan can be reached at email@example.com