THE vote earlier this month by the Burundi parliament to pull out of the International Criminal Court was not taken as much of an event in Africa or outside.
When its President Pierre Nkurunziza last week endorsed that vote, it was generally greeted with cynicism as the act of a despot trying to escape international scrutiny and accountability for human rights violations.
It was the decision by South Africa on Friday last week to also formally announce that it was pulling out which gave The Hague-based tribunal a shock therapy. And the reasons given for the pull-out speak to a major fault of nations for a long time under colonial rule and used to being led and getting documents to append their signatures without reading, let alone demur.
Kenya, Zimbabwe, Uganda and Namibia have also indicated they might want to reconsider their membership.
The Rome Statute, the treaty to establish the ICC, was adopted in 1998 amid hope it would deter or at least allow the international community to hold to account leaders accused of genocide, war crimes or crimes against humanity. It has become a victim of good intentions gone awry, but ill-fated from the beginning. The treaty was signed by 124 nations, but there were notable absentees – those with the power to enforce international statutes – the United States of America, India, China and Russia. Since its signing, only African leaders have been arraigned before the ICC, creating a feeling that while all nations should be equal, some are more equal than others.
Burundi decided to quit the ICC after it announced that it wanted to investigate reports of violence in the Lake Region country which were sparked by Nkurunziza’s decision to extend his presidency. He went on to win a subsequent election, but violence has not abated and hundreds have died.
If President Robert Mugabe had announced after Burundi that Zimbabwe was also pulling out, that would have been treated with derision in the West where his repossession of land from white farmers to give to poor blacks turned him into a dictator overnight.
During his joint chairmanship of SADC and the African Union last year, Mugabe challenged Africa to form its own tribunal to try European leaders suspected of human rights violations.
“There should be justice for all,” said President Mugabe. “You set up the ICC, we set up our ICC to try Europeans, to try Mr Bush and Mr Blair.”
But it is President Jacob Zuma of South Africa who has stolen Mugabe’s thunder after he felt his country had been slighted and its sovereignty undermined by a voluntary institution which big nations refused to subject themselves to. Zuma was attacked home and away after he refused last year to arrest Sudanese leader Omar Hassan al-Bashir, an ICC inductee, when he attended an Africa Union summit in Johannesburg.
Africa has long argued for immunity from prosecution for serving heads of state. But that failed to save Charles Taylor of Liberia or Uhuru Kenyatta from ICC indictment, only the latter had his case collapse for lack of evidence.
In a document signed by its International Relations minister Maite Nkoana-Mashavane on Friday, South Africa said it found “its obligations with respect to the peaceful resolution of conflict at times are incompatible with the interpretation given by the International Criminal Court”.
South Africa’s Justice Minister Michael Masutha also told media in Pretoria that the country’s laws giving diplomatic immunity to sitting heads of state were inconsistent with (its) obligations under the ICC.
“The implementation of the Rome Statute of the International Criminal Court Act, 2002, is in conflict and inconsistent with the provisions of the Diplomatic Immunities and Privileges Act 2001,” said Masutha.
We do not feel there will be much lost if Africa chose to leave the ICC, an institution where its leaders are paraded for shame and ridicule as in the days of slavery.
It is up to African nations, individually or collectively, to set up institutions which deal with their peculiar cases of transgression instead of signing up to international treaty obligations which turn out to be in conflict with national constitutions. At the recent CITES conference in Johannesburg, South Africa, Namibia and Zimbabwe found themselves barred from selling their huge ivory stockpiles because of a treaty they signed in good faith with nations which no longer have a single elephant.