Promoting International Criminal Justice in Africa: The Role of Civil Society
In the past the African Union (AU) has both in rhetoric and action expressed its uncompromising commitment to ending impunity on the continent.
In the past the African Union (AU) has both in rhetoric and action
expressed its uncompromising commitment to ending impunity on the
continent. This commitment is reflected in article 4(h) of its
Constitutive Act which states that “it is the right of the Union to
intervene in a Member State pursuant to a decision of the Assembly in
respect of grave circumstances, namely: war crimes, genocide and crimes
against humanity”. This commitment was exemplified by dozens of African
leaders who rallied together as an untempered force in support of the
creation of the International Criminal Court (ICC). Since then 30
African states have ratified the Rome Statute, the Court’s founding
treaty. Africa has also supported the development of a number of
regional criminal justice initiatives, including the International
Criminal Tribunal for Rwanda and the Special Court for Sierra Leone.
These efforts have been driven by the reality of war and its
associated atrocities in several African countries: the prevalence of
unruly bandits; regular coups, the widespread abuse of human rights and a
culture of impunity.
Unfortunately, the AU’s and many leading African countries’ recent
faltering commitment to cooperate with the ICC (exemplified by
subsequent criticism of the court by some leaders, particularly on its
endeavours in Sudan) has only served to undermine African commitment to
ending impunity. This could be seen as a complete betrayal of trust of
the victims of the very crimes for which the ICC stands to prosecute – a
betrayal of African victims and citizens. The AU is made up of African
leaders who in their own utterances are against impunity and are
committed to upholding the rule of law. However, when the application of
that very law poses a direct threat to the security of their regimes
and seeks to probe their conduct, they attack it and are willing to
overlook the conduct of their peers for other ends. Herein lies a
contradiction.
The apparent obsession of African leaders to shield each other from
reproach has obscured their sense of responsibility to their own people.
As elected representatives, they forget that they are accountable to
their citizenry rather than to their counterparts and other senior
officials that they occasionally meet with at regional events. We can
justifiably conclude that many African leaders have disregarded the rule
of law by supporting and respecting a leader like President Robert
Mugabe – a man who presided over a regime that wantonly violated the
rights of its citizens. Despite efforts to establish a government of
national unity in Zimbabwe, thousands of victims have yet to see justice
for the horrendous crimes committed against them.
The waning support for the ICC on the part of African leaders serves
only to perpetuate the culture of impunity, and sets a bad precedent
that creates the impression that the rule of law and justice are
circumventable.
There are several reasons to support the ICC’s work in Africa. As an
institution that seeks to prosecute crimes against humanity and gross
violations of human rights, the ICC stands to promote the development
objectives of African states and supports their efforts to build
domestic capacity. The obligations imposed by the Rome Statute compel
governments to realise that they are not above the law. Since the rule
of law is an indispensible pillar of democracy, international criminal
justice can therefore be seen as a welcome addition to the democratic
machinery, especially in fledgling democracies.
Democracies are buoyed by the existence of independent institutions, a
separation of powers within the state machinery and most importantly a
citizenry that is educated enough to understand its workings. It is the
responsibility of citizens to ensure that those elected to these offices
remain accountable and committed to the protection and promotion of
their interests and to the preservation of democratic ideals. Just as
the various struggles against colonialism, discrimination and injustice
on the continent were undertaken by ordinary citizens, Africans will
only derive the benefits of international criminal justice – that of
striving to end impunity the most serious crimes, achieving retribution
for gross human rights violations, and the rehabilitation of victims –
by making every effort to make the ICC and other regional justice
mechanisms work.
The ICC’s work is greatly dependent on the principle of
complementarity, which creates the expectation that domestic legal
systems will play a role by ensuring free and fair criminal justice
responses. In light of the reign of impunity in Africa, who will ensure
that the aims of international criminal justice are achieved? Civil
society must take this responsibility upon itself: that of exerting
pressure on their governments to live up to their international,
regional and domestic obligations with regard to the application of
international criminal justice. Their role is also to encourage the
involvement of ordinary citizens by educating them and informing them
about how they can access and engage with these processes.
Ordinary African citizens should exercise their own discretion as to
whether the ICC’s work unabashedly seeks to discriminate against
Africans or rightly seeks to restore the dignity of victimised people.
Mpumi Sibalukhulu, Junior Researcher, International Crime in Africa Programme, ISS Tshwane (Pretoria)
