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| Gambian President Yahyah Jammeh declares Gambia to Leave ICC |
In the wake of recent
news that Burundi, South Africa and now Gambia are to withdraw from the Rome
statute of the ICC, there are, justifiably, tense moments among the legal and
wider fraternity that constitutes the so called international criminal justice
project: are the steps taken by these nations the beginnings of a mass walk-out
by African states (which constitute the single largest continental membership
bloc), and can the ICC survive an event of such proportions, or would such a
walk-out even matter? The OTP’s Fatou Bensouda, herself a Gambian has already
provided an answer to the latter question. In a typically dismissive fashion, she
has noted that the ICC will march on regardless. However, a more politically grounded
president of the ASP, Sidiki Kaba, has signaled that dialogue should be
embraced by all parties to avert a potential disaster, and this is as it should
be.
The prevailing
narrative on the intended withdrawals and any further potential cases from Africa
is the much repeated and equally robustly rebutted notion that the ICC is
unfairly targeting African nations in its fight against global impunity, the so
called African bias. Both sides of this argument have been so exhaustively
prosecuted in contemporary legal and political discourse that any further
pronouncements on the argument here would be rather futile. What I propose here
is that the problem between the ICC and the disaffected African states lies
quite outside of this oft repeated premise, and any attempts to understand it
must look both to the attitude of the ICC and to the internal political
dynamics of the states concerned.
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| SA. President Zuma Recently Implicated in State Capture Report |
Accordingly, South
Africa’s notification of its intention to withdraw has been linked by some to
the difficulties surrounding the government after its own courts embarrassed it
by declaring its reception of Al Bashir, the ICC’s most wanted fugitive, a
breach of the law. The government’s own protestation that it had to choose
between loyalty to the AU and pandering to the ICC rings hollow. However, the
decision comes at a time when the composition and integrity of the current ANC
leadership faces a mounting political existential threat: the prospect of
damaging corruption revelations in a report on state capture by the outgoing
public protector has sent Zuma’s government clutching for straws. Further, an
apparently politically motivated and ill advised decision by the SA National
Prosecuting Authority to go after the current finance minister has, as widely
expected, ended in fiasco and reinforced perceptions of a Zuma government
engaging in a witch-hunt. I venture to suggest that SA’s decision will eventually
unravel as a poor attempt at political diversion with little if anything to do
with the government’s official position and everything to do with Zuma and the
ANC’s political calculus, and the SA opposition and civil society are likely to
successfully petition the courts to declare it null and void on administrative
procedural and constitutional grounds. Similarly, the Burundi and Gambia
decisions must be understood within the context of their internal political
dynamics. This does however not absolve the ICC from its role in building up
the perception of bias towards African states. The ICC and in particular the
OTP has by its attitude and political stance provided ammunition for local
political players and given them enough reasons to legitimize their actions in
front of their local supporters.
The ICC claims to be
non-political (and only legal) when the opposite is clearly the case. More than
anything else, it is its claim to being a purely legal entity that does not
engage in any politics that exposes the ICC to claims of dishonesty and bias. A
quick look at the actions of the ICC in Kenya, Uganda, and Ivory Coast for example
reveals its political hand in at least three ways: overtly as when it engages in direct negotiations with Uganda in
obtaining its self-referral; the ICC was thus effectively co-opted by Museveni
in his personal pursuit of Kony et al, and bringing the ICC dimension into the equation was meant
to up the stakes against Kony and the Lord’s Resistance Army ; covertly when it gets itself inserted into
and manipulated by local politics as we saw in the Ivory Coast situation where
some political contestants sought to tip the balance of power in their favor by
‘accepting’ the sovereignty of the court while in actual fact putting their
opponents away; and indirectly when
its inaction and/or inefficiency with regards to prosecutorial decisions and
case turnover creates cause for concern with serious ramifications on its
legitimacy and universal acceptance. Thus, insisting that it is an institution
concerned solely with the law while overtly making political considerations and
allowing itself to be manipulated by politicians in furthering local political
interests only serves to legitimize the anti-ICC crusade. This stance has
simply straight-jacketed the ICC into a self-defeating legal formalism and held
it back from engaging with the AU in a politically viable manner.
