Every Assembly of the African Union affords Kenya the opportunity to reiterate our gratitude for the solidarity of this continent for chaperoning us during the period of our crisis following the 2007 elections. It was the wisdom and mediation of our union that helped us negotiate a reconciliation that led to peace, constitutional change and the transformation of our governance. The African Union continues to play this role throughout our continent – forging unity, reconciliation, peace and stability, in seemingly intractable situations.
In doing this, we have opened ourselves to partnerships and contributed to the creation of international institutions that would assist Africa to create an enabling environment for its development. It is this spirit that has guided our Union in its constructive engagement with the International Criminal Court.
At its 25th Session in Sandton, Johannesburg, this Assembly recommended the formation of an open-ended Ministerial Committee of Ministers of Foreign Affairs to follow up the implementation of our decisions on engagement with the ICC.
We are today called to consider the first report of the committee. I note that the Assembly also authorized the commission to file Amicus application in the ICC case against my Deputy President. I am happy to express our gratitude to the AU Commission and the Legal Counsel for submitting an excellent Amicus brief to the appeals chamber. The decision of the chamber is still pending.
The Ministerial committee was present at the 14th Assembly of State Parties at The Hague in November 2015, and supported the Kenyan delegation to get a resolution from the ASP that reaffirmed our common understanding that the amended Rule 68 could not be applied retroactively. It is my hope that this Assembly will re-state this understanding, which projects our common position on this.
At the ASP, we asserted through our committee, that the ICC existed within the larger context of global peace and security concerns. Africa’s powerful hope for economic betterment through development is threatened as never before by the global rise of terrorism. This is a global crisis, and every tool to reconcile communities and countries in conflict needs to be utilized. I believe that the world can learn from African values that embrace negotiation, consensus-seeking and reconciliation in the pursuit of peace.
This is the path that Kenyan chose and whose results you have commended and benchmarked for our continent.
When Kenya and the large group of African countries joined the International Criminal Court, it was to seek legal means to complement the other important tools that we have stood up. We sought to combat impunity while being sensitive to the reality our young and fragile democracies.
We have been sorely disappointed. Kenyans, including myself and my Deputy have been subjected to weak cases built with weak investigations and pursued with politicized zeal. There can be no recent illustration of this statement than January’s proceedings in the case against my Deputy William Ruto and Journalist William Sang. The Prosecution’s case in their proceedings came to a close with an opportunity granted to the judges to review all the evidence adduced thus far. Not surprisingly, the weakness of the case was exposed for all to see.
The Prosecution seeks for the court to proceed without evaluating evidence. In any criminal justice system, these cases would never have come to trial. It is our expectation that the law will be applied and cases terminated.
In the face of a mutating global terrorist threat that is costing us lives and great economic loss, in the midst of playing our part in mediating multiple peace processes in our region, we have to contend with an ICC pursuing weak and politicized cases. This has become a huge distraction from our duty to serve our people and this continent fully.
This is not what Kenya signed up for when we joined the ICC. I highly doubt that those of you that are its members expected this to be the way the court would conduct itself.
As a continent and a union, we have sought constructive engagement with the ICC and supported its reform. In previous decisions, this Assembly has supported amendments to Article 27 of the Rome Statute to align it to the norms of Customary International law on immunity for Heads of States.
We have supported amendments to give effect to complementarity as a cardinal principle of the ICC. We will not and must not tire in this effort to reform the ICC.
It is my sincere hope that our ICC reform agenda will succeed so that we can return to the instrument we signed up for. If it does not, I believe its utility for this continent at this moment of global turmoil will be extremely limited. In that eventuality, we will be failing in our duty if we continue to shore up a dysfunction instrument.
I therefore urge you to adopt the resolutions of the ministerial committee on ICC; and include a new mandate to develop a roadmap for withdrawal from the Rome Statute as necessary. We must reaffirm that the global standard for the immunity for Heads of State should also apply to Africa, and insist on the termination of the collapsed case against the Deputy President of Kenya. Together, we can make a powerful statement that reflects our refusal to be carried along in a vehicle that has strayed off-course to the detriment of our sovereignty, security and dignity as Africans.
Finally, Excellencies, we must reaffirm our commitment to the Malabo Protocol as our instrument for continental justice; and work to expeditiously operationalize it.