African Union agrees protocol for court of justice ahead of ICC Kenyatta trial

As the International Criminal Court (ICC) meets today amid claims that Kenya has deliberately obstructed the trial of its president, Uhuru Kenyatta, the African Union (AU) is pressing on with establishing its own court, which would give immunity to serving heads of state.

At a summit in Equatorial Guinea last week, the AU – which claims the ICC is pro- Western and has been "hunting" African leaders – agreed a draft protocol for the new African Court of Justice and Human Rights, just months before the scheduled start of the Kenyatta trial on October 7th.

The new court will be a combination of the African Court on Human and People’s Rights, which came into effect in January 2004, and the long-proposed African Court of Justice, and will have a wide mandate to try serious human rights violations, war crimes and major breaches of international law.

The decision to go ahead with a regional replacement for the ICC follows the AU's failure to convince the UN Security Council to defer the trial of Mr Kenyatta (52) and his deputy, William Ruto (47), who deny orchestrating post-election violence in 2008, in which some 1,200 people died.

The AU is also demanding the deferral of charges against the Sudanese president, Hassan al-Bashir, who in 2009 became the first sitting president to be indicted for genocide, for allegedly directing a campaign of mass killing, rape and pillage against civilians in Darfur – charges he says are “lies”.

Arrest

President al-Bashir has refused to co-operate with the ICC and has never appeared in The Hague, though there were suggestions that an attempt might be made to arrest him if he attended the UN General Assembly in New York last September, which in the end he did not.

By contrast, Mr Kenyatta and Mr Ruto have pledged to co-operate, despite AU calls to boycott the court. If the Kenyatta trial goes ahead, he will be the first sitting president to appear in the ICC dock – which is why the case is so crucial to the credibility of the 12-year-old court.

Under the terms of the new African court, those three accused could never have been charged, because the draft protocol agreed last week gives immunity from prosecution, not just to sitting heads of state but also to “other senior state officials based on their functions” – a catch-all regarded as broad enough to include the entire senior echelons of a government.

Amnesty International's Africa director, Netsanet Belay, described that immunity clause as "a backward step in the fight against impunity, and a betrayal of victims of serious human rights violations".

“At a time when the entire African continent is struggling to ensure accountability, it is impossible to justify this decision,” he declared. “It undermines the integrity of the African Court of Justice and Human Rights in a single stroke, even before it becomes operational.”

Simon Allison of the South Africa-based Institute for Security Studies, while acknowledging “there are enough compromised African leaders who might stand to benefit from the immunity on offer”, argued, however, that guaranteed immunity might encourage some leaders to engage with the new court.

“By agreeing this immunity provision, Africa’s leaders are basically saying ‘it’s never our fault’. On the other hand, if those leaders are not worrying about their own fate; they won’t have anything to lose by co-operating.”

Case uncertain

The fate of the Kenyatta case is uncertain. ICC prosecutor, Fatou Bensouda, admitted last December she no longer had enough evidence to prosecute President Kenyatta.

That was partly, she alleged, because the Kenyan government had refused to co-operate, but also because one key witness would no longer testify, while another had admitted giving tainted evidence.

At today’s status conference, judges will hear if co-operation with Nairobi has improved, and whether the Kenyan government has handed over Mr Kenyatta’s telephone and bank records, which the prosecution claims could show he bankrolled the 2008 killings.

Kenya's attorney general, Githu Muigai, who will attend today's hearing in The Hague, has denied government obstruction and maintains the prosecutor now has "all the data relevant to the case".

Mr Kenyatta’s lawyers want the judges to dismiss the case for lack of evidence.