The International Criminal Court's (ICC) decision to grant Kenyan PresidentUhuru Kenyatta leave not to attend all of his trial in November, on charges of crimes against humanity, is a sign that the ICC was not after regime change in Kenya as many observers had speculated. Kenyatta will only be required to attend the opening and closing sessions of his trial, along with hearing when victims present their testimony in person. Kenyatta had argued that attending the trial in The Hague would prevent him from governing  his country.

The ICC decision followed a hastily called AU summit in Addis Ababa, where the African body criticized the ICC of bias against African leaders, specifically because Kenyatta is the first incumbent head of state to stand trial before the ICC. Both Kenyatta and his deputy William Ruto are charged with organizing violence after the 2007 Kenya elections, in which an estimated 1,200 people were killed. Ruto's trial began in September and his exemption from attending the entire trial is under an appeal suspension. 

Kenyatta's case has understandably been the cause of much discussion, criticism and finger pointing. At the AU summit that sought to examine Africa's relationship with the ICC, the AU was adamant in declaring that heads of state in office ought not to be indicted by the ICC, saying that "sovereignty, stability and peace [of member states] would be undermined."

The irony of the case is that of the 122 states that are members of the ICC, 34 are African, all having pledged to protect equal treatment for individuals in cases involving criminal responsibility for international crimes. Kenyatta's case has subsequently blown a dark cloud over the the biggest regional membership of the ICC.

African leaders, meanwhile, say that while they acknowledge the functions of the ICC are needed to oppose global crimes against humanity, they should not be targeted and "so-called superpower leaders with UN veto-power" who arbitrarily invade weaker nations should also be brought to account. Seeking to balance affairs, AU Commission Chairperson Nkosazana Dlamini Zuma told the summit, "It is critical that we remain within the legal framework of the Rome Statute" (which governs the ICC). Her words indicate that a mass withdrawal of African members from the ICC is unlikely.

Currently the ICC is investigating eight cases, all in Africa – Uganda, the DRC, Central African Republic, Darfur, Kenya, Libya, Cote d'Ivoire and Mali. Based on this, it must be asked if the opposition of ICC prosecution by African leaders is a process of closing ranks to protect each other. While the message from Africa that the continent wants to be treated fairly has been made unequivocally, reluctance from African member states to cooperate with the ICC would threaten its ability to effectively try these cases, and without African cases it has no work and its entire future is put in doubt.

THE EDITOR