Last week, South Africa set in motion steps towards withdrawal from the Rome Statute which established the Hague-based International Criminal Court (ICC). First was the announcement of a cabinet decision that Africa’s asymmetrical power would be leaving the ICC. The minister for international relations and cooperation Maite Nkoana-Mashabane made good on the decision by signing and dispatching an “Instrument of Withdrawal” in a move that got observers in and out of South Africa flat footed. Barring unforeseen challenges, South Africa will be a non-ICC member state in a year’s time.

This is a development with significant international relations ramifications. On account of its sway on the continent South Africa will likely persuade other African countries to join it in rejecting the ICC. It is unlikely that South Africa would want to suffer the ignominy of being one among few African countries sitting outside of the ICC. South Africa would leverage various assets at its disposal such as the 43 diplomatic missions in Africa alone, it’s hosting of the Pan African Parliament, a large representation in international organizations of any other Africa countries and well-positioned foreign policy institutions such as the South Africa Development Partnership Agency (SADPA) and South African Council on International Relations (SACIR). This potentially sounds the death knell for the ICC much more than previous anti-ICC initiatives.

Countries such as Sudan, Kenya, The Gambia and Burundi that have had troubled relations with the ICC would be emboldened by the South African impetus. Indeed, the announcement came hot on the heels of a vote by the parliament of conflict-prone Burundi to leave. The Gambia followed suit this week. Uganda president Yoweri Museveni was quoted terming the ICC “useless”. While the African Union has backpedalled from leading the ICC-quit campaign in recent times, South Africa – which has a big say in the AU – would lead the campaign by other means.

South Africa-Kenya parallels can be drawn. For Kenya, the bad blood with the ICC emanates from the arraigning of President Uhuru Kenyatta and his deputy William Ruto in The Hague for supposed crimes against humanity. Kenyatta, Ruto and journalist Joshua arap Sang have since been let off the hook. It will be recalled that Kenya launched a massive international campaign against the ICC dubbed “shuttle diplomacy”. Coming after a recent official state visit by South African president Jacob Zuma to Kenya, the South African decision suggests a coordinated anti-ICC approach by the two nations in the coming days. While Kenyatta and Ruto have been acquitted, the caveat that the charges could be revived at a later date still hangs over them.

In both the Kenyan and South African dimensions, Sudanese President Omar al-Bashir looms large. Bashir was indicted by the ICC in 2009 for charges of war crimes, genocide and crimes against humanity in Sudan. Member states such as South Africa and Kenya are obligated to arrest and hand him over to The Hague for prosecution should he set foot in their country. In the South African case hosted Bashir at an AU Summit June last year. This triggered public spirited persons to lodge a case at the South African high court compelling the government to arrest Bashir. Bashir was whisked out of the country in the most dramatic of circumstances. The government then lost a Supreme Court ruling over the matter and has been facing a case in the Constitutional Court case slated for November. After commencing the withdrawal process, the South African government has indicated that it no longer needs to go through the Constitutional Court process. There are indications that some civil society organizations will contest the decision, meaning that the South African government will have to wait longer to know if it will be exempt from a legal process at home. The upshot worth emphasizing is that the civil-society-led cases against the government accelerated South Africa’s departure from the ICC as there is neither charges nor warrants of arrest against the country’s leadership per se. Views are indeed divided as to whether South Africa is withdrawing from the ICC on principle or as a means of forestalling the court case.

Similar circumstances played out in August 2010 when Bashir attended the adoption of the new Kenyan constitution. Bashir’s visit touched off hullabaloo with the civil society organization, International Commission of Jurists (ICJ) eventually obtaining a court ruling obligating the government to arrest Bashir should he set foot in Kenya again. In the South African context, the court cases against the government were led by civil society organizations, among them the African Centre for Justice and Peace and the Centre for Human Rights. As in the recent South African case, the Kenyan government argued that sovereignty including diplomatic immunity and privileges for leaders such as Bashir overrode ICC obligations. In both countries, civil society organizations and the political opposition disagree, shooting for the upholding of internationally ratified law.

In principle, South African, Kenyan and a host of other African leaders are in agreement with aspects of the Rome Statute dealing with genocide, crimes against humanity and war crimes. Their point of departure is that the approach used by the ICC can serve to escalate animosities in fragile African states in addition to the charge of specifically targeting African countries. Instead, the African argument goes, local and continental – the African Court of Justice and Human Rights – approaches should be evolved to deal with African peace and security matters.

While similarities between South Africa and Kenya can be drawn, there are distinctions. The South African decision was reached by the cabinet with a proviso that parliament will have to endorse the decision. The most recent Kenyan approach has been essentially parliamentary. A bill for pulling out of the ICC was tabled by Bumula MP Boniface Otsiula in June. The trajectory is that should the bill pass muster in parliament, it would be ascended to by President Kenyatta, leading to the commencement of the formal withdrawal process. All things remaining equal, South Africa is ahead of Kenya in attempts to pull out of the ICC. Similarly, the Burundian parliament has voted for withdrawal and President Pierre Nkurunziza has signed the bill into law. In both South Africa and Kenya, ruling coalitions have the requisite numbers to push through withdrawal decisions. The bigger continental question is whether or not we shall witness executive and/or legislative arms in African governments triggering ICC withdrawal in the near future.

In both South Africa and Kenya, the ICC question is an emotive political issue. In Kenya, ICC question may not be as hot button an issue as it was at 2013 General Election. It will however form a background to the campaigns particularly with respects to foreign policy. In South Africa, the rise of the ICC debate comes at a time of intense political battles ahead of the 2019 elections. While it might not form a major plank at the local level, it is likely to feature in terms of South Africa’s external relations. Already, the main opposition party, the Democratic Alliance, has sought legal redress over the decision a bellwether of a battle of wills over South Africa’s foreign policy architecture in the coming months.

Article by Bob Wekesa