African leaders are set to pass a resolution urging the ICC to refer crimes against humanity trials against four Kenyans, including the country's president, back to Kenya. Human rights groups have opposed the move.
The draft proposal, which would allow local courts in Nairobi to preside over crimes against humanity cases, was agreed by AU foreign ministers on the final day of a summit of the 54-nation organization on Monday.
"We believe that it is time to let Kenyans move forward on the path they have started. They have a new constitution, they have reformed the courts, and that means the Kenyan courts should be left to handle the matter," James Mugume, a senior Ugandan Foreign Ministry official, told German news agency DPA.
"We are encouraging them [the International Criminal Court] to withdraw so as to strengthen the process of reform already underway," Mugume added.
In what is the latest sign of rising dissatisfaction on the African continent, where only a global court of war crimes exists, African Union Commission Chairwoman Nkosana Dlamini-Zuma told reporters that the ICC was a court of last resort and not the first port-of-call for legal matters.
Dlamini-Zuma was backed by Ethiopian Prime Minister and African Union Chairperson, Hailemariam Desalegn. "The chasing of this president [Uhuru Kenyatta] by the ICC is not clear to the African leaders, of all people indicted by the ICC 99-percent are Africans," the premier added.
Experts say the proposal would have no legal impact on ICC proceedings, but would significantly bolster President Kenyatta's standing on the continent if the case were to be deferred from The Hague.
“I think the question of how to handle the case will depend on the independence of Kenya's judiciary. I'm afraid that at the end, if these trials can be transferred, the political pressure to drop the processes will be very high,” Andreas Mehler, a political scientist from the GIGA institute in Hamburg told DW in an interview. Mehler believes the Kenyan judiciary system could suffer collateral damage as a result.
When the ICC launched in 2002, African nations were its biggest supporters, hoping that the creation of an international judiciary would help prevent conflict in the region.
Kenyatta is the second African leader to face trial at the ICC. In 2009 Sudanese President Omar al-Bashir was the first head of state to be charged for genocide crimes committed in Darfur.
This is the first time the pan-African body has formally moved against the European based ICC.
Charges and denials
Kenya's President Uhuru Kenyatta, 51, and his deputy William Ruto, 46, both face trial in The Hague for their alleged roles in orchestrating the country's 2007-08 post election violence. They both deny the charges and have agreed to cooperate fully in the ICC trial.
Kenyatta's hearing is scheduled to start on July 9, while no date for Ruto's case has been set down.
The ICC became involved in Kenya's case after the country's parliament refused to set up an exclusive tribunal to prosecute those responsible for the post election violence. The clashes left more than 1,000 people dead and hundreds of thousands displaced. East Africa's largest economy was on the brink of civil war with its image shattered as a beacon of stability in the region.
In 2009, former UN Secretary-General Kofi Anan who had been called to mediate gave Luis Moreno Ocampo, the then ICC's chief prosecutor a list of names of people his AU sanctioned investigation team believed to be the perpetrators of the worst violence witnessed in the country since it gained independence from Britain in 1963.
Rights group outraged
Human rights group Amnesty International had earlier urged leaders at the summit to reject the proposal.
The UK based organization said they were worried by the “Kenyan attempt to avoid justice.” Amnesty also called on the 34 AU members who have ratified the Rome Statute to take a strong stand to protect international justice. "The Organization of African Unity, the AU's predecessor organization, was founded to end the innumerable human rights violations meted out on Africans through the yoke of colonialism."
"The AU must stand firm with the victims of human rights violations allegedly perpetrated by their own leaders,” Netsanet Belay, Amnesty International's Africa Programme Director, said in a press release.
The ICC's chief prosecutor, Fatou Bensouda, has previously maintained she will not drop the cases, commenting recently that Kenya's attempt to drop the case "is a backdoor attempt to politicise the judicial processes of the court."
The European Union as well as the United States (even though the latter is not a member of the ICC) have been firmly advocating for Kenya's case to proceed in The Hague.
The announcement by the African Union comes amid growing calls for Africa to review its relationship with the ICC. To date, The Hague-based court has only issued warrants for African suspects.
South Sudan's President Salva Kiir said his country would never become a member of the ICC, saying it appeared to be preoccupied with prosecuting African leaders.
Sudanin particular has said it would be keen to see ICC cases take place off the continent, as its leader, President Omar al-Bashir as well as other top Sudanese officials, are wanted on crimes against humanity charges.
Other nations, including South Africa, reiterated that the proposals only called for a "review" of the relationship between African countries and the ICC.
The AU is holding a summit in Addis Ababa, Ethiopia, and is celebrating 50 years since the founding of its predecessor, the Organization for African Unity.