AU Commission under new leadership: what does this mean for the ICC and the AU?

Published 2nd February 2017

The 28th Ordinary African Union Summit has produced interesting developments. The election of a new AU Commission Chairperson and discussions pertaining to yet another International Criminal Court (ICC) withdrawal strategy are particularly intriguing.

The Summit, which ran from 22 January to 31 January, saw Chad’s Moussa Faki Mahamat’s election after seven rounds of voting in Addis Ababa. Ghana’s Ambassador Thomas Kwesi Quartey was elected Deputy Chairperson.

The AU Commission is a key organ that plays an integral part in the day-to-day management of the African Union. It is designed to protect and further the interests of the AU. This includes strategic planning, harmonisation of policies and the provision of operational support for all AU organs.

Given that the Commission wields so much power, the Chairperson is an individual who greatly shapes and influences the destiny of the AU. The Chairperson is considered to be the Chief Executive Officer, the legal representative of the Union and the Accounting Officer of the Commission.

The coveted Chairperson title was hotly contested. The AU was due to elect a new AU Commission chairperson in July 2016 but the election was postponed following three rounds of fruitless voting as candidates failed to obtain the required number of votes. In addition, more than half of the member states abstained from the second round of voting in 2016.

Contenders included Senegal’s Abdoulaye Bathily, Botswana’s Venson-Moitoi and Equatorial Guinea’s Mba Mokuy. Many commentators were of the opinion that Kenya’s candidate, Foreign Minister Amina Mohamed was likely to be elected.

Mohamed seemed to be a frontrunner for the position, however, Mahamat managed to secure the requisite two thirds and was declared the winner.

Mohamed has been one of the loudest ICC critics and her candidacy for AU Commission Chair invoked a sense of foreboding for the AU’s already strained relationship with the ICC.

It was the indictment of Sudanese President Al Bashir in 2009 that significantly influenced the evolution of the AU-ICC relationship. The AU prefers that sitting heads of state remain out of justice’s reach whilst the Rome Statute of the ICC, in seeking to prevent impunity, ensures that no one is above the law. Thus, unsurprisingly, the 2010 ICC cases against President Uhuru Kenyatta and his deputy William Ruto further incensed the AU.

The AU also accuses the ICC of targeting African leaders. Yet an objective assessment of the ICC cases in Africa will show that the vast majority of cases are self-referrals where African states have requested the Court’s intervention. Uganda, The Democratic Republic of Congo, and Central African Republic (CAR) referred themselves to the ICC in 2004. Mali did so in 2012, and CAR did so again in 2014. Gabon is the latest African nation to request the Court’s intervention in 2016 and that matter is in the preliminary examination phase.

This leaves cases from: Libya and Sudan, which came before the Court by way of a United Nations Security Council referral; the Kenyan cases which represent the purest form of the prosecutor initiating a process of his (at the time it was Prosecutor Ocampo) own volition; and Cote d’Ivoire which accepted the Courts jurisdiction and the prosecutor then initiated a process after obtaining authorisation from the ICC Pre-Trial Chamber. It is more accurate to say that Africans are making use of the Court they helped create.

In addition, the AU has concerns about the controversial United Nations Security Council referral of situations to the ICC. This is a reasonable concern as the 5 permanent members have veto powers. Given the highly politically charged environment in which the UNSC operates this means only referrals that meet their political objectives will survive. The AU, understandably, has a problem with this, as do all who seek the fair application of justice. These are just a few of the grievances that have led to the AU issuing calls of non-cooperation and encouraging withdrawal from the ICC.

To date, only South Africa, Burundi and Gambia have officially signaled their intention to withdraw. In any case, member states signed the Rome Statute as sovereign states and must “unsign” in compliance with their own domestic procedures not merely at the behest of AU. At every AU Summit the threats of mass withdrawal are presented yet, ironically, the loudest anti-ICC governments, for example Uganda and Kenya remain under the ICC’s jurisdiction.

Whilst calls for withdrawal are nothing new, fresh resistance to withdrawal proposals enlivened this Summit. Nigeria, Senegal and Cape Verde reportedly opposed the withdrawal strategy and Zambia, Tanzania, Liberia, and Botswana reportedly intend to remain as members. Whilst the ICC is by no means perfect, it requires support and constructive engagement from its members. Perhaps new AU Commission leadership could positively influence the situation though little is known about Mahamat’s stance when it comes to ICC issues. Time will tell.
** This article originally appeared in the Star Newspaper on 2 February 2017

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