A Litmus Test for Criminal Justice in Africa
The Hissène Habré case represents the failure of criminal justice in Africa and demonstrates how political considerations can perpetuate a culture of impunity
Martin A. Ewi, Senior Researcher, International Crime in Africa Programme, ISS Pretoria Office
The Hissène Habré case highlights the extent to which political dynamics may impact the successful pursuit of justice for international crimes. Unlike the indictment and arrest of former Chilean President Augusto Pinochet, which strengthened the conviction that time is on the side of justice and that no one – not even former heads of state – can get away with impunity, the case of Hissène Habré may give credence to the notion that justice delayed is justice denied. In this instance, time has been against the victims of this former Chadian President accused of crimes against humanity, war crimes and torture.
For more than two decades the international community and Africa, in particular, have watched with concern developments related to the trial of Habré. This case can be regarded as a litmus test for criminal justice in Africa. The Senegalese government, the Organisation of African Unity (OAU), the African Union (AU) and the Economic Community of West African States (ECOWAS) have all tried to bring Habré to justice in a case that has been packed with political intrigues.
Habré, who ruled Chad from 1982 until his forceful overthrow in 1990, fled to Senegal, where he has lived for the past 20 years in exile. While in exile, a Chadian Truth Commission, established in 1992, accused Habré of political repression and systematic torture that had resulted in 40 000 political assassinations. These accusations have been corroborated by a 2010 report released by the Human Rights Data Analysis Group, which found evidence of large-scale human rights violations, including the killing and torture of thousands of Chadians. These rights violations were the result, either directly or indirectly, of Habré’s policies and were perpetrated by his notorious Direction de la Documentation et de la Securité (DDS) between 1982 and 1990.
Despite numerous accusations, criminal complaints and a summons launched against Habré by victims of his political repression in Chad, efforts to hold him to account have dragged on for years without any tangible achievements. Stalled by political wrangling and confusion, a Senegalese court finally indicted him on 3 February 2000, and found him guilty of being an accomplice to torture, barbarous acts and crimes against humanity. Habré was subsequently placed under house arrest. However, the Court of Appeals soon overturned the indictment on the grounds that Senegalese courts have no competence to pursue charges against Habré because the crimes were not committed in Senegal.
Frustrated by the delays in Senegal, some of Habré’s victims appealed to a Belgian court. This court issued an international arrest warrant for Habré, charging him with war crimes, crimes against humanity and torture. In 2005 Belgium requested his extradition, a move that brought anti-colonial sentiments into the case. Again a Senegalese Court of Appeals ruling proved a barrier to justice as Senegal declared that it had no jurisdiction over the extradition request.
Lack of competence and jurisdictional limitations have been central to Senegal’s justification for failing to try Habré. However, Senegal is a state party to the United Nations Convention Against Torture (CAT) and Article 79 of its Constitution makes CAT an integral part of Senegalese national law. Under this provision, Senegal is obliged to try Habré. The UN Committee Against Torture found that by refusing to prosecute Habré, Senegal was in breach of Articles 5 and 7 of CAT, which promulgate the principle of universal jurisdiction. In addition to that, an AU summit decision of July 2006 mandated Senegal to prosecute Habré on behalf of Africa. An ECOWAS Court’s decision also requested Senegal to put in place the necessary mechanisms for Habré to be tried in Senegal.
Even so, Senegal’s efforts to prosecute Habré have been met by numerous hurdles, including resource constraints and internal politicking. In 2008 Senegal initiated a constitutional amendment to create jurisdiction to prosecute international crimes such as genocide, crimes against humanity, war crimes and torture, including those committed prior to the enactment of the law. However, the latter part, which was seemingly aimed at addressing the Habré case, met with bitter opposition on the grounds that it violated the principle of non-retroactivity enshrined in international law and Senegal’s constitution. Thus the law was effected without retroactivity.
With its attempts thus far frustrated, the Senegalese government announced last Friday (8 July 2011) that it was repatriating Habré to Chad. However, it quickly reconsidered its decision due to pressure from the international community. The UN Human Rights Commission warned that the action could expose Habré to torture and the death penalty, which would put Senegal in violation of CAT, as Habré has already been tried and sentenced in absentia in Chad. At this stage, the only way forward is for Senegal to prosecute Habré on the basis of CAT, which it ratified in 1986.
Senegal’s foiled attempts at bringing Habré to trial highlight the challenges of criminal justice responses to impunity in Africa. While resource limitations are often to blame, the Habré case demonstrates that political challenges, particularly a lack of political will, are often a major impediment to effective enforcement of criminal justice. In Africa, this is further complicated by the exceptionalism of heads of state and government that characterises African politics. As a result African leaders are reluctant to prosecute or sanction one another. This is evident in the controversy brought about by the ICC’s indictment of African sitting heads of state President Omar Al-Bashir of Sudan and Colonel Muammar Gaddafi of Libya. The immunity of African leaders remains a challenge to be overcome in the pursuit of criminal justice in Africa.
The Habré case has emphasised the importance and necessity of a tiered and complementary system of international criminal justice. Such a system provides for varying levels wherein justice may be pursued, with domestic courts having primary jurisdiction and with regional and international mechanisms available to take over where national jurisdictions are limited to act either due to capacity or political dynamics. The absence of extraterritorial options for bringing to account alleged perpetrators, especially those occupying high-ranking political positions, creates a context where impunity thrives.
It is from this perspective that all efforts to create credible regional judicial mechanisms that have competence to try international crimes in Africa, working to complement domestic initiatives as well as in support of international mechanisms such as the ICC, should be welcomed in order to entrench a strong culture of accountability on the continent as is envisioned by Article 4(h) of the AU Constitutive Act. The Habré case therefore provides useful lessons that may inform on-going efforts to expand the jurisdiction of the African Court of Justice and Human Rights to address crimes such as those that Habré is accused of, particularly in situations where national mechanisms are unable to do so.
