INTRODUCTION

In the ongoing heated debates on the tension between Africa and the International Criminal Court (ICC) it is easy to lose sight of what is most fundamental: the ICC was established to prosecute the most serious international crimes. The court had to fulfil the enormous expectation of fighting impunity on a global scale. Whereas it is clear that international criminal law lies on the fault-line of law and politics, the legal should still prevail and the court should, first and foremost fulfil its independent legal mandate. The tensions between the African Union (AU) and the ICC have however taken centre stage in the way the court has been perceived. The debates on the ICC have become almost entirely political. It will be argued here that, whereas it is impossible to separate law and politics entirely, the court should not be diverted from its primary purpose and mandate. It will further be argued that the work of the ICC is not the preserve of the ICC alone and can feasibly be shared by domestic, sub-regional and regional courts. Although prosecution in these for a are still hampered by significant constraints, recent jurisprudence from Southern Africa shows that the potential exists for an effective multi-layered international criminal justice system.

The tension between the AU and the ICC has been simmering for many years. The tension intensified when the politically powerful in Africa were targeted for investigations. This is clearly illustrated by the fact that the relationship between the AU and the ICC started to deteriorate dramatically when the ICC issued an indictment to arrest the Sudanese President Al-Bashir in 2008. The issue of Head of State immunity has become the main point of contention between the two sides. Some believe the adversarial stance has been channelled through, and encouraged by, the African Union. In 2013 the African Union asked its members to implement a policy of non-compliance and non-cooperation with the ICC. Although African states have not formally adopted such a policy, the non-cooperation of the Kenyan government illustrates the power of the African Union's strategy.