A legal institution that pitted the government of President Ian Khama against the African Union and on which Botswana maintains a hypocritical position, has been described as a kangaroo court.“We cannot, we will not stand by as our people are threatened by a kangaroo court,” said the United States’ Secretary of State Mike Pompeo as the International Criminal Court (ICC) announced an investigation into potential war crimes by US forces during the years-long conflict in Afghanistan.
The ICC was established by the Rome Statute of the International Criminal Court in 1998, and began sittings on July 1, 2002 during the administration of President Festus Mogae. The court was created to investigate and prosecute individuals accused of genocide, war crimes, and crimes against humanity. In ratifying this treaty in 1998, Botswana undertook to support the ICC and cooperate with its operations. However, the country soon tied itself in knots when it signed a contradictory treaty with the US.
On June 30, 2003, Botswana became the second in Africa (after The Gambia) to sign the Bilateral Immunity Agreement (BIA) with the US. The agreement was signed by Foreign Affairs Minister and future Vice President, Mompati Merafhe, and United States Ambassador to Botswana, Joseph Huggins, 10 days before President George Bush paid a brief (six-hour) visit to Botswana. In terms of this agreement, Botswana has pledged not to extradite American citizens to the ICC tribunals unless those tribunals are established by the UN Security Council or if America expressly consents to the surrender.
In undertaking to do the latter, Botswana is undermining the ICC and violating its obligations under international law. Amnesty International says that these immunity agreements “seek to undermine and weaken the ICC which was created to end impunity for the worst crimes known to humanity”.However, it is important to understand why and how Botswana got itself in this position. The US had warned that it would cut military aid to countries which refused to sign the immunity agreement. The country is not itself opposed to the ICC because it has used the Court’s structurally flawed processes when the situation favoured it. In terms of the Rome Statute, the permanent five members of the UN Security Council can tell the court whom to charge.
However, three of those members (Russia, China and the US) are not signatories to the Rome Statute. That notwithstanding, they can instruct the ICC whom to prosecute and famously did do with former Sudanese president, Omar Al-Bashir.Mindful of the embarrassing situation Botswana had put itself into, President Festus Mogae never said anything about the ICC but his successor felt the need to. When other African countries complained that the ICC instruments were being applied unevenly, Khama reaffirmed Botswana’s commitment to the Court.“Botswana … remains committed to the International Criminal Court and international Criminal Justice system. We will continue to support the ICC and cooperate with its operations,” he said when opening a parliamentary year that followed calls for the arrest of al-Bashir.
Khama would later state that should al-Bashir set foot in Botswana, he would be arrested and handed over to the ICC. He also marched in lockstep with the west when it sought the prosecution of another African president – Uhuru Kenyatta of Kenya. The latter was implicated in the post-election violence in 2007 that claimed the lives of more than 1000 people and displaced 600 000. Following Kenyatta’s election as president in 2013, Botswana’s foreign affairs minister at the time, Phandu Skelemani, said that if Kenyatta refused to go to The Hague to answer charges he was facing, then “he won’t set foot here.”
On the whole, Khama’s position on the ICC soured Botswana’s relations with African nations. Such relations are now being rebuilt by his successor, President Mokgweetsi Masisi who, while maintaining the BIA, has not made any public pronouncements about that court.