The Future of the ICC and Africa: the good, the bad and the ugly. The other far-reaching negative implication of the Summit is the continued politicization of the ICC’s judicial role. Primarily due to the prosecutorial policies of the former Prosecutor, Mr Ocampo, the victory of Mr Kenyatta and Mr Rutto in the most recent Kenyan election was construed as reflecting the Kenyan people’s indictment on the ICC and its activist Prosecutor. For many, the Kenyan presidential election was a contest between Mr Kenyatta and Mr Ocampo, with Kenyan voters serving as the jurors in a case that placed the ICC judges in the dock. In the eyes of many Africans, the ICC lost its case.
To be certain, an en masse withdrawal from the ICC will hurt Africans more than the ICC. With the highest incidence of systemic and human rights violations globally, Africa, more than any other continent, needs the ICC. As the largest bloc to ratify the ICC Rome Statute, Africa showed its staunch support for the ICC. Indeed, many Africans genuinely believe that they want an end to genocide, war crimes and crimes against humanity. The ICC can help in deterring political forces from committing these terrible crimes. That is the reason why one- third (34) of the 122 states parties to the Rome Statute are member states of the African Union. The ICC also needs Africa. Former President of the ICC, Mr Philippe Kirsch, stated in a meeting with the AU in 2006: “As far as I am concerned the ICC would not exist without the support of the African Members”. Africans, therefore, believe that the ICC is good for Africa. The current rough relations emanate from the activist prosecutorial policy promoted by the former ICC prosecutor Mr Ocampo and the referral and deferral powers of the UN Security Council.
For such reasons, the AU should continue to pressure the UNSC and the ICC to address Africa’s major concerns. The AU, through its member states, which are also states parties to the ICC, should make use of its regional bloc advantage to ensure that its repeated calls for reform are heeded. Thus it should focus on the following three issues: 1) developing a strict African mechanism for ensuring accountability of all state officials and leaders, particularly heads of governments; 2) change Mr Ocampo’s prosecutorial policy by persuading the Assembly of states parties of the ICC; and 3) more crucially ensure that the UNSC’s referral and deferral powers are withdrawn and conferred either to the Assembly of States Parties or/and the UN General Assembly.