The African Union has just held its annual heads of state and government summit in Addis Ababa. No one, in good faith, can say that the AU has not come a long way since its transformation from the OAU, that prodigiously inept body. The AU has made progress on a number of key fronts:
Political: The AU has shown it will not countenance egregious violations of democratic governance such as coups;Policy: Taking advantage of its continent-wide jurisdiction and, therefore, convening clout, the AU has pooled experts to draw up policies such as its social policy framework under which governments are obliged to invest in measures to cushion their most vulnerable citizens from extreme poverty;
Diplomatic: Its engagement with the UN and other multilateral actors, though ponderous at times and even misguided at others, shows a growing understanding of how it can influence policy towards Africa as opposed to Simply reacting to it;
Institutional: The AU commission is a satisfactory attempt at institutionalising and professionalising the continental body's work. Yet these progressive steps notwithstanding, there have been many moments when the AU's responses to national and international demands for justice and accountability by African governments sound disturbingly like echoes from the sinister days of the OAU. Take the AU's attitude towards the International Criminal Court, for instance.
Some years ago, the ICC indicted Joseph Kony, the crazed leader of the Lord's Resistance Army, for war crimes. The AU's reaction, expressed most prominently by then president Thabo Mbeki , was furious. The body's argument was that the ICC move would act as a disincentive for Kony to make peace. It was the same argument the AU used when the ICC indicted Omar al-Bashir, and more or less the same considerations it expressed when it lent its support to the Kenya government's ill-advised attempts to stop ICC action against six Kenyans suspected of crimes against humanity.
Reduced to its bare minimum, the AU argument presents a huge moral and legal dilemma. In the context of mass rape and killing, scorched earth terror tactics such as destroying crops and burning houses, use of children as soldiers and sex slaves, all of which the LRA has employed in its campaign, the argument obliges victims to choose peace and reconciliation over justice and accountability. This is nothing short of sacrificing human lives and unimaginable suffering at the altar of appeasement and expediency.
The argument is not legally tenable either. The Universal Human Rights Law and its constituent conventions and treaties do not provide for those accused of war crimes and crimes against humanity to be excused as an inducement to sign a peace deal or on grounds that they have signed one. The trade-off between peace and justice is to be allowed only in circumstances of an extreme nature.
But even this AU formula for ending conflict cannot guarantee peace. Promises of appeasement, reconciliation and rehabilitation (usually meaning positions in government) could act as a perverse incentive to commit crimes. There is every indication that rebel groups, when the tide of war turns against them, often abandon classical military goals, and increasingly use gruesome methods in order to terrorise their opponents and the international community into suing for peace.
The other argument against the ICC hinges on sovereignty and cultural autonomy. This was an OAU staple when even calls for multiple parties were dismissed as Western interference in the political and cultural affairs of Africa. This, however, is a Machiavellian distortion of the meaning of sovereignty, and culture. Sovereignty from the perspective of the AU argument means government in general and the president in particular. But sovereignty, as the new Kenyan Constitution so clearly stipulates, resides with the people. And culture, again according to the argument, presupposes an eternally rigid entity that admits no new ideas and practices.
An aspect of globalisation, enhanced as much by social media as by growing global interdependence, is the increasing universalism of democratic principles and practices. This will mean universal human rights laws being upheld by an increasingly assertive transnational justice system. To remain relevant, the AU must embrace, and add value to, this brave new world.
Tee Ngugi is a social and political commentator based in Nairobi