Africa Watch

Is Africa’s own pan-African Criminal Court possible?

AfricanJudges1.jpg

The Al-Bashir debacle has fast-tracked the growing conviction that Africa should discard the International Criminal Court (ICC) in favour of an African equivalent, but prospects for that are looking less than promising.

The view that the ICC is biased towards Africa, and only serving Western interests, has been gaining momentum on the continent for some time now.

The Al-Bashir debacle brought it all to a climax. The call for the 34 African ICC member states to terminate their membership has become loud and clear.

The South African Government (SAG), caught up in the middle of the Al-Bashir affair, has already indicated it might be contemplating such a move, despite having played an important role as a founding members of the ICC in 1998.  

On 25 June 2015 Jeff Radebe, Minister in the Presidency, told reporters during a post-cabinet meeting briefing: “Cabinet decided that it will review South Africa's participation in the Rome Statutes of the International (Criminal) Court.”

He, however, added that the SAG would only leave the ICC as a “last resort” after “South Africa has exhausted all the remedies available to it”.

The present SAG position is less radical than the demand championed by current AU chairman, Zimbabwe’s President Robert Mugabe: Africa should find its own immediate alternative.

African Court on Human and People’s Rights          

Advocates of this approach say the framework for such an alternative already exists, in theory at least, in the form of the African Court on Human and People’s Rights (AfCHPR).

In this regard Deputy Minister in the Presidency and chairman of the ANC's sub-committee on international relations, Obed Bapela, is on record that South Africa is committed to having AfCHPR, rather than the ICC, prosecute war crimes and crimes against humanity on the continent.

There is, however, a few stiff challenges to be overcome before the AfCHPR could be considered a viable alternative to the ICC.

Challenges

Headquartered in Arusha, Tanzania, the AfCHPR was established 11 years ago with the objective of making judgements on AU states’ compliance with the African Charter on Human and People’s Rights. But it still boasts only 27 signatories out of the 54 member states of the AU.

This indifference of half of the AU member states says, as one observer remarks, “... a lot about the commitment of our leaders to finding an African solution to an African problem, which they claimed this court would do”.

In 2014 the AU, at its summit in Equatorial Guinea, agreed to transform the AfCHPR into the principal court of the AU with the adoption of the Malabo Protocol.

The Malabo Protocol allows for the transformation of the AfCHPR and expands its reach to include the crimes the ICC was created to prosecute: genocide, crimes against humanity and war crimes.

But nullifying any future effectiveness by the AfCHPR, the Malabo Protocol grants immunity from prosecution to sitting heads of state and senior government officials, a dramatic departure from the Rome Statute and the ICC, and clearly a ruling Al-Bashir would appreciate.

This conspicuous protection of offenders in high office will render the AfCHPR ineffective to dispense justice without fear or favour.

It also remains unclear for what reason African leaders and their governments will submit to the judgement of the AfCHPR. Only because it is an African court based in Africa for Africans? 

Example

In this regard the history of the South African Development Community (SADC) Tribunal is a sad reminder. 

Based in Windhoek, Namibia, it was established in 1992 under the Treaty of the SADC, but was only inaugurated in 2005.

It has jurisdiction over disputes among SADC member states as well as between individuals or corporations and member states.

Article 4 of the treaty requires the SADC and its member states to act in accordance with the principles of human rights, democracy and the rule of law.

But the SADC Tribunal committed the cardinal sin of giving judgement against a sitting head of state, Robert Mugabe, and therefore had to be “punished”.

In 2010, in record time, the Tribunal was dissolved and with a new, cunningly crafted protocol, emasculated from acting against transgressing politicians.

Why would the AfCHPR receive different treatment?

The failure or more precisely, the reluctance, even refusal, of African leaders to hold one another accountable for crimes against their people, is unfortunately an undeniable reality.

Africa is littered with examples of leaders committing crimes against their own people – crimes for which they are not prosecuted by the same AU that now wants to claim moral righteousness in its criticism of the ICC and the West in general.

Al-Bashir is the latest in a long list. It is also not the first time that the SAG has forsaken its responsibility. To its eternal shame the Mbeki administration will forever be remembered for its failure to stop Robert Mugabe from the devastation he inflicted on his country and people.  

Neither a reformed ICC nor an AU-sanctioned legal entity such as the AfCHPR will bring an end to the abuse of power, persecution and disregard for basic human rights in Africa.

It is the people of Africa that hold the key to an effective and lasting solution to stop individuals like Al-Bashir.

The people of Africa have both the opportunity and responsibility.

Democracy and the demand for leaders in Africa to limit their stay in office to two terms are fast gaining ground, and the people of Africa hold the ace: the power and the right to call perpetrators to order at the ballot box.

by Garth Cilliers

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