It is this obnoxious trait in African politicians that is responsible for the challenge facing the African Court on Human and Peoples’ Rights, established by the African Union to “complement and reinforce the functions of the African Commission on Human and Peoples’ Rights.”
Emma Emeozor
The International Criminal Court’s choice of President Muhammadu Buhari as guest speaker at the body’s 20th anniversary of the Rome Statute came at a time when it is still struggling to fix its sagging image in Africa, following accusations of bias made against it by some ‘rebellious’ African members.
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There could not have been a more qualified candidate to deliver a keynote address than the president of Nigeria, who is also the chairperson of the African Union’s anticorruption committee. Nigeria is the voice of the continent in international fora, including the United Nations. It has both the largest population and economy on the continent.
Contrary to the argument that it was an honour for Buhari because he was the only head of state invited, the president’s invitation was a strategy to lift the public image of the court. Also, it was a mark of recognition of Africa’s predominance in cases brought before the court.
However, beyond that argument, inviting an African leader as a guest speaker at the august event threw a challenge at the governments of African countries, the African Union and the regional blocs, it called for sober reflection on the judicial system in Africa, especially respect for the rule of law.
African leaders overwhelmingly embraced the Rome Statute when it was created in 1998, and 34 African countries ratified it. The ICC has 124 members. Some scholars have argued that the interest shown by African leaders was inspired by the Rwanda genocide. The thinking then was that a body like the ICC, with its noble objectives, was needed to stem a repeat of the Rwanda experience.
The court was established “to help end impunity for the perpetrators of the most serious crimes of concern to the international community, namely, war crimes, crimes against humanity, genocide and the crime of aggression.”
Africa has remained the court’s biggest client since it started functioning, even though the crimes for which African countries have become the big catch in the court’s net are not peculiar to the continent. The crimes are also committed in the other continents of the world. But while the other regions have put in place strong institutions to address “the most serious crimes of concern to the international community,” Africa has not been able to do the same, even as issues of human rights, equality, genocide, crime of aggression and the need for judicial reform are always on the top of the agenda of political leaders during campaigns and elections.
Oftentimes, after victory is secured, the first institution that is manipulated or stifled is the judiciary, apparently to allow the ruling party have the leeway to use the machinery of government to silence the opposition and civil society organisations. The consequence is leaders trampling on the peoples’ right
to freedom of speech, movement, information and the safety and security of persons. Victory at the polls immediately transforms African politicians into ‘superior beings’ who are unquestionable over their actions.
It is this obnoxious trait in African politicians that is responsible for the challenge facing the African Court on Human and Peoples’ Rights, established by the African Union to “complement and reinforce the functions of the African Commission on Human and Peoples’ Rights.”
Though “the court was established by virtue of Article 1 of the protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights” in June 1998, records show that “only eight out of 30 states parties” to the protocol, which came into force on January 25, 2004, “had made declaration recognising the competence of the court to receive cases from NGOs and individuals”as at April 2018.
The eight countries are Benin, Burkina Faso, Cote d’Ivoire, Ghana, Mali, Malawi, Tanzania and Tunisia.
The countries that are yet to make their declaration are: Nigeria, Algeria, Burundi, Cameroon, Comoros, Gabon, Gambia, Kenya, Libya, Lesotho, Mali, Mozambique, Senegal, Togo, Uganda, Sahrawi Arab Democratic Republic, Rwanda, Mauritius, Niger, Chad and South Africa. The leaders of the countries who are yet to make their declaration may have to explain the dilly-dallying and for how long it will last.
It is worrisome that decades after the Organisation of African Unity, now African Union, was founded, it has not been able to put in place a judicial structure that could effectively address cases of impunity, rule of law, and other crimes that make life unbearable for the citizens of the continent. It is ridiculous that, in 2018, the AU has no court that can effectively sit in judgement over cases arising from member states, NGOs and individuals.
Still, it was ridiculous for the AU to have requested the United Nations Security Council to grant immunity to serving African heads of states brought to the court. The tacit support the AU gave some countries who had expressed their intention to withdraw from the ICC was shocking too.
So far, the only acclaimed case that has been prosecuted on the soil of Africa was that of war crimes, genocide and rights abuse brought against former Chadian President Hissene Habre. It was made possible by the bravery and support of Senegal, where the case held. The successful trial of Habre showed that, but for lack of political will, atrocious cases could be tried on the soil of Africa and the intervention of foreign bodies like the ICC would become minimal.
Interestingly, Africa has produced eminent jurists of world class. They have proved their mettle in the dispensation of justice without favour in the developed countries of the world. The current president of the ICC, Justice Chile Eboe-Osuji, and the court’s prosecutor, Fatou Bensouda, are Africans after all. Even with all the legal luminaries it has produced across the globe, Africa has not been able to take the bull by the horns and establish an internationally-recognised continental court.
Oftentimes, good intentions are politicised, to the extent that they become moribund even before execution. This has been the bane of the continent. Certainly, Africa needs a new crop of young and pragmatic leaders who can awaken the continent to face the realities of the times.
It is inexcusable for the continent to always come last in global development indices.
But if the continental level is wobbling, how about the regional blocs? It is a story of distasteful tales too. The Economic Community of West Africa States’ Community Court of Justice, established in 1991, ought to be a shining example for the rest of the continent. But in 2018, it is still limping. It is faced with inadequate funding and flagrant disregard for its rulings by the governments of member states. Official sources say “only 35 of the 64 decisions” of the court “have been enforced by member states due to a variety of reasons, including the preponderance of states that have not designated their focal points for the enforcement of the decisions of the court.” Only recently, the vice president of the Court, Justice Yussif Kaba tacitly indicted member states when he said, “a court whose decisions are not enforced is not worth its salt.” He was addressing a joint delegation of the Pan-African Lawyers Union (PALU) and the Swedish-based Raoul Wallenberg Institute, who had visited senior officials of the court.
The court, PALU and Raoul Wallenberg Institute are collaborating “to develop strategies for improving on the enforcement of the decisions of the Court.” But how successful the effort will be is another topic for debate. The worry of the court’s officials is how “to sustain its credibility among citizens who
see it as the last resort for the resolution of cases relating to the violation of their human rights.”
And on the eastern front, the East African Court of Justice, established by the East African Community, was a fiasco. The embarrassment suffered by Kenya President Uhuru Kenyatta and his vice president, William Ruto, following their arraignment before ICC, might have been avoided if the court was in existence and empowered accordingly. In Southern Africa, the South Africa Development Community (SADC) Tribunal, created in 1992, though officially established in 2005, was suspended in 2010 “after several judgements against the Zimbabwean government.”
The court was, originally, established to enforce “adherence to, and proper interpretation of the provisions of the SADC Treaty and subsidiary instruments and adjudicate upon disputes referred to it.” Attempts to set up a new tribunal in 2012 failed. The bloc has since remained without a regional court.
There are no indications that the tribunal will be set up in the near future. Reports said that its building in Windhoek, Namibia, “is now used as an ordinary domestic court.” Akin to all other dreams expressed by leaders of the other regions, at its inception, the hope was that the tribunal would provide a “strong impetus to hold SADC governments accountable,” among others.
“Many believe that the disbanding of the SADC Tribunal in 2012 was reflective” of the organisation’s “hierarchy of values” in which its “formal commitment to human rights and a legal order is subordinate to the political imperatives of regime solidarity and respect for national sovereignty,” another report said.
The report further noted that “whereas states have traditionally been willing to relinquish sovereignty with regard to direct trade and economic matters, human rights have remained a sensitive and neglected issue,”adding that the case of the SADC Tribunal “showed a lack of appreciation for the idea that the decisions of regional courts could take priority over national courts.” It is this same mentality that informed the decision of African countries that were opposed to the decision of the ICC. And all African countries are guilty of this charge.
Following the eloquent keynote address delivered during the ICC 20th anniversary of the Rome Statute, it is expected that President Buhari will begin to consider workable solutions to the challenge of establishing a truly independent continental Court. It is believed he is already pondering over the capacity of the AU to fight corruption in the continent. The task on his shoulders is an onerous one that could either rubbish his current records or earn him further accolades at the continental level and indeed globally.
In his address, he urged “all states not to politicise the decisions of the court but to always bear in mind the rationale for the establishment of the court in the first place.” It is expected that he will urge African leaders not politicise the decisions of the regional courts.