The African Union celebrated its 50th Anniversary in Addis Ababa with salvos being fired at ‘western’ forces that were keen on meddling with our internal affairs. Within the same breath, Rwandan President Paul Kagame told off those who thought aid was extremely critical to Africa that after all, Rwandese could go back to their hills and cultivate their potatoes.

The African leadership is certainly correct to say, Africans have to be in charge of their own destiny. But it is certainly wrong to impute that that necessarily means ridding ourselves of associations with certain parts of the globe, especially the west.

It is naïve to imagine that geopolitical interests are nonexistent or they do not influence municipal politics, indeed they are and history suggests that sometimes they lead to extensive arm twisting. However, 50 years on; Africa’s woes cannot be entirely blamed on the west.

Are geopolitics interests necessarily bad? No. The international arena is becoming heavily intertwined that it is an issue of prudent caution for nations to extensively audit their potential partners. This audit may from time to time lead to preferences but as long as the interference is not material, there is absolutely no illegality even if a country expressed its direct support for candidate A, or even sponsored candidate B.

African Presidents are acting hypocritical yet some of them have their campaigns bank rolled by foreign donors.

Africa cannot afford to continue believing that sovereignty means having the domestics entirely left to the locals, that Palmas notion has certainly been modified by globalization. It is time to know that as ultimate human civilization is neared, humanity becomes one and so will the caution about who sits on the international table increase.

The concept of sovereignty in my opinion does not exclude scrutiny.  In fact Africa should rise up to the international calling of shaping opinion even in other jurisdictions if it wants its interests best served. It is absolute naivety for the African leadership to demand that the west retreats and leaves African politics to Africans. That cannot happen, and it should not happen. As a member of the International Community, Africa must endure scrutiny as this is inevitable.

It is not in the interest of anyone, not nationals of African states or international allies to have persons who may jeopardize foreign relations at the helm of states. And expressing opinion about municipal politics by international allies is a sign of honest engagement which should not be demonized.

As the African leadership seeks to run away from scrutiny, it has visibly started shifting east. This is desirable in my opinion, as overreliance on one partner may make us beholden to them.

However, if this is motivated by assumptions that Eastern Allies do not question our propensities, time is certainly bound to erode that assumption.

China’s economic growth for instance firmed up when it opened itself to the rest of the world. And as it accomplishes the modifications to its own systems, reality is beginning to dawn that to protect its interests, allies have to be determined with caution.

The inevitability of globalization calls for Africa to endeavor to assert her influence instead of calling for other to withdraw their influence.




Sovereignty as a principle of international law denotes the right to exercise, to the exclusion of any other state, the functions of a sovereign, as explained in Island of Palmas Arbitration case. A sovereign here meaning the modified Austinian notion of he whose pronouncements are habitually respected. In modern times, this would refer to the institutions of law which exercise state authority on behalf of the people. 

In Kenya, our collective social contract is codified in a constitution, passed overwhelmingly by the Kenyan people in 2010. In the Kenyan Constitution, the sovereign authority is delegated to, the Parliament and legislative assemblies in the counties, the national executive and executive structures in the county and the judiciary and independent tribunals, per Article 1 (3) of the Constitution of Kenya 2010

Sovereignty is a sub-structural cardinal at the centre of international relations that every state, so legally recognized, should be respected and should not have its internal affairs and decisions interfered with by external interests. It would be naïve of anyone to say such a basic rule should be waived under any circumstances whatsoever. 

Here, we must note that our Kenyan municipal institutions and we as a people have made decisions unique to our contexts and which could actually be inconceivable in other jurisdictions. Kenya’s constitution for instance, allows criminal proceedings to be started or continued against a sitting President in instances where immunity against such a crime is prohibited by a treaty to which Kenya is part of. 

This is the constitutional basis that obligates President Uhuru Kenyatta and his Deputy William Ruto to continue cooperating with the ICC on the cases against them before the court. 

The African Union, meeting in the Addis Ababa to celebrate its jubilee, I must really wonder what they were celebrating, passed a resolution urging either termination of the ICC cases or that it be referred to either the Kenyan “reformed” judiciary or the African Court of Justice

The discussion was emotive, with the ICC standing accused of being a neocolonial tool to “humiliate African leaders.” My good friend Elliston Macharia quipped thereafter, he almost got convinced, but will when ICC goes for Jakaya Kikwete or Joyce Banda.” Perhaps the few discernible faces of the African aspirations. 

The African Union is justified to debate any issue affecting Kenya. We are a continent with a shared common destiny, a similar history and problems. But one indubitable thing is that the rate of social and economic progress in African countries is extremely at differing paces that it seems the continent’s leadership is incapable of having any shared progressive position. They find root, common purpose and passion in retrogression, excusing their inability to deal with the rot and impunity in their countries by blaming external geopolitical interests. 

Immunity against prosecution given to a sitting president has traditional been justified on the basis that it will bring disrepute to the institution of Presidency, who in all fairness is a states, first citizen.


Kenya’s progressive view, espoused in our constitution, allows suspicion that a president has done a crime under national or international to be a basis of their impeachment, Article 145 (b) of our Constitution. This notion is inconceivable to some countries where Presidents are deities. In particular the sponsor of the debate, Uganda is incapable of ever imagining such a law in its instruments. 

In all fairness, a man who will close down a media house because it is about to expose an alleged scheme to install his son as president is incapable of understanding why a Kenyan President would go to the ICC. 

Daily Monitor Paper Under Siege

Daily Monitor Paper Under Siege

It is however important to question the hypocrisy of Museveni as person when it comes to the ICC. On 12th July 2013, Moreno Ocampo visited Uganda and after a meeting the Ugandan government through its then minister of International Affairs Henry Okello issued a statement that Uganda was to arrest Sudanese President Omar El Bashir should he set foot in Uganda. 

It is understood that this was a silent means of compelling Bashir to help in the arrest of the Northern Uganda warlord Joseph Kony believed to be hiding in Sudan then under the protection of Bashir. Indeed, even after ICC issued an arrest warrant against Kony, Museveni agreed in a cabinet resolution that if Kony was to agree to sign a peace accord, he would negotiate with the ICC to rescind the warrant. This is a bloated imagination of his influence, disregarding the fact that the ICC is a judicial process, perhaps operating differently from the patronized Ugandan judicial system. 

The most chorused phrase in Addis Ababa was than Africa can solve her own problems, and that the ICC was a tool to humiliate African leaders. 

First what informs universal jurisdiction on some things like Piracy and International Crimes is the knowledge that sometimes we Well let us look at the esteemed African leaders indicted by the ICC. 

Omar El Bashir is accused of financing the Darfur conflict. Since the start of the conflict, it is estimated that close to 200,000-400,000 thousand people have lost their lives. Assuming that Bashir did not even participate in the conflict, what else can be a basis of illegitimacy of a government if such en masse atrocities are committed under a President’s watch? Others indicted from Sudan include, Bahr Abu Garda, Abdallah Banda and Ali Kushayb. 

From Uganda, they include Joseph Kony, Vincent Otti and Dominic Ongwen all leaders of the Lord’s Resistance Army. These people are accused of using child soldiers, holding women as sex slaves, torture, rape and other gross violations, is their indictment a humiliation of the African leadership.


An argument against the ICC has been that all its indictees are from the African Continent. The Rome statute has 120 state parties, with 33 cou
ntries being from the continent of Africa. The others are Asia-pacific, Eastern Europe, Northern and Latin America and the Caribbean


For the period when the Kenya post election violence occurred 2007, Africa accounted for 88% of the world’s conflict related deaths, followed by Asia pacific at 6% and Middle East 4%. If a continent accounts for 88% of conflict related deaths, why would it not account for 100% of persons indicted for international crimes? 

This is absolutely possible regarding the fact that the ICC is a last resort mechanism that only becomes operational when local systems fail to take action. 

What is even more important however, is for the African Union to know that the relationship between the ICC is not foreign. The ICC is a domestic court both under the Constitution of Kenya and the International Crimes Act No. 16 of 2008. 

The Constitution passed by the Kenyan people in the direct exercise of their sovereign power to determine their own destiny. The Kenyan people, in their wisdom agreed in Article 2(5) and 2(6) of The Constitution of Kenya that all treaties ratified by Kenya will be part of our laws. 

Our constitution, passed by ourselves, and not under the compulsion of neocolonial interests waived the immunity of our president for crimes under international law. Our local traditions as a Kenyan people disallow negotiations for settlement on crimes. This we enacted to ourselves through our sovereign legislature. 

More importantly however, the African Union needs to understand the unique circumstances that led to the ICC process. 

Kenya domesticated the Rome statute by an Act of Parliament in 2008 after the post election violence had occurred. Both the current President and his deputy had substantial influence in the August house. This domestication by law obligated the government to cooperate with the ICC; it makes it mandatory for the Kenyan government to enforce sentences issued by the ICC. 

In the same 2008, the Kenyan parliament enacted a Truth Justice and Reconciliation Act to look into historical injustices and do a report which will be implemented. The TJRC Report, Volume 2A from page 511 makes damning allegations against President Kenyatta as regards the Kenya post election violence. 

The report adopts the views of the Kenya National Human Rights commission the President may be linked to activities undertaken by the outlawed Mungiki sect during the period. 

However, unlike other persons named, the report recommends that no other punitive process parallel to the ICC should be commenced against the President and the duo. This further reaffirms our sovereign commitment to the ICC process. 

The African Union has no mandate whatsoever to purport to make a declaration that extensively usurps our local commitments. If this was urged by the executive, the Kenyan Executive was then attempting to use external pressures to circumvent our laws an act which is a constitutional nullity.


The African Union is interfering with our sovereignty; Our Parliament refused two attempts to set up local tribunals and opted for The Hague. As a matter of unquestionable fact, the Deputy President is on record having urged the ICC process to commence. If this case is fatally weak and founded on falsehoods, there can never be a more legitimate forum to ascertain that than a court of law. 

The acts above were undertaken by a parliament in discharge of its constitutional mandate, a parliament that had balanced political preferences. Our Constitution which embodies our collective aspirations was passed by a free nation in celebration. We were aware, that we would suffer both the convenience and the inconvenience of that law. 

As a people, Kenya must remain committed to the shared destiny of the African continent, but certainly, in the eyes of our laws, that quest does not involve collective support to impunity. 

Sovereignty must remain what it is, that nations have a right to self determination, that acts of national institutions must be respected by our external allies. And that Museveni and Salva Kiir must stop believing that they can best interpret Kenya’s predicaments than our Parliament.


The AU does not need to worry about the shame that will befall Kenya when our President appears before the ICC. Many of us do, but we are also aware that our laws must be respected both when they further our interests and when they bring relative discomfort. Our President has undertaken to respect Kenya’s international obligations, and in his words, the ICC is a personal problem like many Kenyans have personal problems.


Why would a Union with Mali to deal with, Somalia to rebuild, Hunger to eradicate involve itself in the personal problems of three Kenyans?


But we all know what the AU’s record as to the rule of law is. One only needs to see the support it has given to its own African Court of Justice. An institution conceived decades ago which barely has a functioning secretariat talks of the union of a people committed to the rule of law.


By the way, the President of South Sudan talked of a reformed Kenyan judiciary, we cannot be surprised. With South Sudan still reporting abductions, torture and unlawful detentions, a Supreme Court that delivers its verdict before National TV must be the hallmark of reforms.


But as a nation we still have our problems. We still have Justices being taken before the judicial Service Commission; we still have a Supreme Court that misquotes our own constitution; we still have files that disappear in our registries and many still believe we have many steps to undertake before we say we have a reformed judiciary.











Democracy the African Way

the excerpt is true to the fact that liberty is inalienable and that liberty expresses itself in a pronounced manner in the way people choose government; and that when the government derogates from the expectations it is the right of the people to alter or abolish it.

In my opinion, democracy as a concept has never been clear. Just like all forms of freedom, it is not entirely “free”. In fact, the idealness of someone being free is nonexistent. Freedom has a relation with concepts such as rights, liberties and what have you. Liberties for instance have responsibilities attaching thereto and in many cases, these responsibilities partially negate the very liberty that brings them forth. That is why for instance, while humanity largely believes that everyone has a right to determine their form of government, and that the determination largely comes forth through voting; the very belief in a vote comes with a responsibility of respecting the outcome, which in turn means, if your favorite candidate lost, you are led with a government you did not choose.


Choice is a word centrally embedded in human life with actions and consequences revolving around it. Choice, I believe is self regulated in the ultimate, but for purposes of human coherence, and the knowledge that individual “ultimate” vary with individuals, even before the threshold of self regulation is reached, human choice is subjected to restraint through custom, law and conventionalities. When men exceed “the ultimate” we see extremism, when they exceed the conventionalities and customs and laws, we see deviance.

It was not my intention to delve into philosophical nuances of choice, but neither does it hurt to have a firm substructure in anything. Prudently, humanity gives forth some of its rights to get protection. We give up personal liberties to create societies, states and nations and give to ourselves leaders who exercise those rights for us and in turn guarantee the protection of the rights we retained.

In turn as civilians we remain cautious of the liberties we have foregone. We demand with growing persistence for prudence in their exercise and we create social contracts with wielders of state authority in forms of constitutions and laws and require that they be faithful to our expectations, and us to our responsibilities.

The creation of states has not, however, been a willful agreement between leaders and the led. The world, records of ages when states emanated from conquests or royal lineages. People obeyed thrones because they were thought to be reserved for certain persons. Submission to state authority was default as such, the veneration inborn. My ancestors perhaps thought if you castigated a throne you would call the wrath of the gods upon you.

In Africa, colonization merged villages and clans and kingdoms; implanting notions of sovereign boundaries. As clan leaders fell by the baron, my ancestors might have been awed by the power of the baron. They were “triggered” into submission I would say.

It did not take long before Africans realized that this was not a “willful” submission to authority. And since anytime “freewill” is negated, man is no longer obligated to respect the state, they took clubs and machetes, some took bows and some opted for negotiating tables to reclaim their liberties.

One of the maxims I consider sincerely true is found in the American Declaration of Independence. In part it says: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”


Though drafted slightly over 236 years, the excerpt is true to the fact that liberty is inalienable and that liberty expresses itself in a pronounced manner in the way people choose government; and that when the government derogates from the expectations it is the right of the people to alter or abolish it.


Africa has exercised this variously. We have seen multiple changes of governments, through rigged and fair ballot exercises, military and civilian coups and transition governments established through regional bargains. But in the end, Africa’s inalienable desire to have a say in her own way of forming government has never diminished, even when her expression through the ballot or otherwise is disregarded by wayward sons.


Is democracy an alien subject to native Africa? I doubt that. If choice is the central concept in democracy, and participation in both social and economic endeavors of the society form part of a democracy, then even in our dark days, Africa has been splendidly democratic. Africans have always freely given themselves to thrones and chieftaincies and clan headships, they trusted the ability of these institutions to execute judgment, to determine boundaries and lead into mass clearance of farms to grow yams and sow sorghum.


I have always resisted the finger pointing nature of African scholars who trace our problems to colonization and neo-colonization. My holding is influenced by knowledge that colonization afforded Africa diversity and that diversity can never go wrong in entirety. However, I almost believe that we can trace mistrust of government to the alterations occasioned by colonialism.


The immediate post independent leaders who fought for our restoration stand out in the legacies of our history because they sought our lost glory of being free. As a continent we hail almost all our independence leaders one thing, independence, but equally trace almost all our problems to them or the immediate successors.


Consider that 21 Independence leaders in Africa were deposed from rule by a coup with 8 being killed either through assassination or execution. Most of the presidents who were deposed from power began as statesmen and later degenerated into egocentric individuals who forgot that state authority belongs to the people.


Neo colonial interests might account for suspicious deaths of Moshoeshoe II of Lesotho, Samora Machel of Mozambique, Patrice Lumumba and a couple more, but the bulk was shoved out of office due to imprudence. Which I posit might have been due to the incoherence of African values and the art of bossiness they acquired from settlers. I will not make the fatal attempt of excusing all coups we have witnessed in the continent, but some of them were deservedly so.


This insatiable greed was incompatible with African values. They had to go. The last two years has seen a wave of demonstrations forcing out of power modern autocracies; Muamar Gadhafi  (Libya), Hosni Mubarak (Egypt), Ben Ali (Tunisia). These are not new phenomenon, many presidents have been forced out of office through civilian strikes. Hubert Maga of Benin for instance was forced out of office due to riots long before some African nations gained independence.

The people of Africa have always and will always have a desire to determine their own form of government. And After two decades of trunk pounds and gun shots, I saw hopeful Somalis waving placards in what in Kenya might have been confused for college congressional elections. It was a beautiful sight. These Somalis did not have a voting card, I even doubt whether they have identity cards, in fact most of them were children, but they were happy, happy that they had freely chosen to give 250 Mps whom they did not elect a trust to determine their next president.

It was a mockery to the extremists who thought they could impose government based on religious misconceptions, terrorism or barrel might. That after they brought Mogadishu down to its knees, riddled its walls with bullets, established courts and raised extremist flags, the last wave, and the last shout will always belong to the people.

A democracy the African way; my ancestors danced to the politics that ran in their blood, joined hands to pull tree trunks as they constructed foot bridges, They sat by trees to determine whether people should be excommunicated. I wish we could translate the same spirit into our modernity; to participate in entirety in the creation of our dream. I wish we could defy the echoes of war trunks and sights of bullet ridden walls to wave placards of those who embody our future. This is our legacy.


Long live President Hassan Sheikh Mohamud. You embody the Somali hope. A restart, a trouncing of extremism. Sheikh, you embody the African spirit that it is the people who will always have the last wave, that trunks will scream but it is the resilience of an African person that wins. Long live Somalia.

Somalia’s new president Hassan Sheikh Mohamud, a political newcomer, speaks at a ceremony after being elected by the Parliament over outgoing President Sheik Sharif Sheikh Ahmed who conceded defeat, in Mogadishu, Somalia Monday, Sept. 10, 2012.
Photo by Farah Abdi Warsameh

Writer is ELC secretary General