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The case of Simone Gbagbo: a test for domestic jurisdiction
22 October 2014

As the long-awaited court case against Côte d’Ivoire’s former first lady, Simone Gbagbo, and a large number of party officials starts in Abidjan this week, Ivorians will be reminded of the dark days of the 2010/2011 post-election crisis.

For weeks, inhabitants of the capital city were holed up without water or electricity while war raged in the streets outside. Former president Laurent Gbagbo refused to hand over power to his election rival and eventual successor, President Alassane Ouattara, in a struggle that led to the deaths of several thousand people. At the time, Simone Gbagbo was described as Côte d’Ivoire’s ‘Iron Lady.’ She was accused of war-mongering as the presidential couple hid from the air attacks by French and United Nations helicopters.

The trial of Simone Gbagbo and her 82 co-accused – on charges pertaining to ‘threats against the security of the state’ – is expected to start in Abidjan today, 22 October. Pascal Affi N’Guessan, the head of Gbagbo’s Front Populaire Ivoirien (FPI), and several high-ranking former government officials are also among the accused. The case is going ahead despite an arrest warrant issued against Simone Gbagbo by the International Criminal Court (ICC).

It is a way for the Ivorian government to show that the state can act fairly

Observers say this case will be a test for the Ivorian judicial system – and indirectly for those of other African states – in their assertion that post-conflict crimes should be heard at home, rather than at the ICC. There are doubts about the impartiality and capacity of the Ivorian justice system, still accused of applying victor’s justice in Côte d’Ivoire. N’Guessan, for example, during a press conference on 18 October claimed that the trial against him and other opposition leaders is a move by the government to neutralise political opponents.

However, one high-level source believes if Simone Gbagbo were sent to the ICC, it could strengthen the resolve of hard-liners and radicals inside the country who accuse the Ouattara government of a one-sided approach to ‘political prisoners.’ ‘It could lead to an outbreak of violence,’ said the source.

This week’s court case is also clearly linked to the presidential elections in Côte d’Ivoire slated for October next year, when Ouattara will be seeking a second mandate. The case could be a way for the government to try and close a chapter before campaigning for the elections.

Simone Gbagbo has been held in custody in Odienné in the north of the country since her arrest, together with her husband, in April 2011. Ivorian authorities have refused to hand her over to the ICC, where her husband Laurent is on trial for crimes against humanity. He was transferred to the ICC in November 2011 and charges against him were confirmed in June this year.

Charles Blé Goudé, a former leader of the youth wing of Gbagbo’s FPI party, is also being held in The Hague and charged for his part in the violence that followed the election dispute, in which over 3 000 people died.

According to Ottilia Maunganidze, a senior researcher at the Institute for Security Studies, the pre-trial chamber of the ICC still has to make a final pronouncement on the application by the government of Côte d’Ivoire to try Simone Gbagbo locally. According to the Rome Statute, where a state is ‘willing and able’ to handle cases itself, such matters can be referred back to the national jurisdiction for prosecution.

The case is pending, but the ICC Office of the Prosecutor has not yet opposed prosecution at national level, which means there is no confrontation between the ICC and the Ivorian government on this issue, she says. While the exact contents of the charge sheet in the upcoming trial of Simone Gbagbo has not yet been made public, it is also difficult to comment on whether there is any possibility of ‘double jeopardy,’ she says. The ICC charges against Simone Gbagbo relate to crimes against humanity.

So far, no one from the Ouattara camp has been charged

‘Everyone will look very closely at this trial to see if it is conducted fairly. It is a test for the Ivorian justice system,’ says Maunganidze. For the last number of years, the African Union has been engaged in a battle with the ICC, claiming that Africa is unfairly targeted by the court. The case of Kenyan President Uhuru Kenyatta, who appeared before the ICC earlier this month, has become emblematic of this battle.

Following the post-conflict violence in Kenya in 2007/2008, authorities there had been given a chance to pursue those charged of orchestrating the violence, but did not do so. The prosecution of Kenyatta (who was not the president at the time) and others had then been referred to the ICC.

Maunganidze says much rests on the Ivorian case for Africa to prove that trials such as these can be held domestically if the state has the political will and the capacity to do so. Meanwhile, Paris-based political commentator Francis Laloupo says the case has huge political implications for Côte d’Ivoire.

It is a way for the Ivorian government to show its citizens and the international community that the state can act fairly and that it is capable of carrying out justice at home. ‘It is about proving the judicial sovereignty of the country. The fact that the trial is taking place before that of Laurent Gbagbo at The Hague is hugely significant,’ says Laloupo.

He explains that the government is eager to get the case out of the way before election campaigning starts. Still, accusations of double standards won’t go away as long as only those in the pro-Gbagbo camp are seen to be made to pay for the 2011 violence. So far, no one from the Ouattara camp has been charged for their responsibility in the conflict.

Laloupo says he doubts whether this will happen while Ouattara is still campaigning for a second mandate. However, he suspects a light sentence for Simone Gbagbo and her co-accused could appease the atmosphere in the run-up to the election. According to him, the judiciary in a post-conflict situation like the one in Côte d’Ivoire is ‘naturally politicised.’

While emotions around the fate of the former president and his wife are still running high, the political class in Côte d’Ivoire is increasingly divided. Laloupo says for the majority of Ivorians, the issue of reparations for the victims of the post-election violence – from both the pro-Ouattara and pro-Gbagbo camp – remains a priority. Transformation of the security sector, dominated by Ouattara’s former Forces Nouvelles, is also one of the crucial issues to be addressed before there can be real reconciliation and lasting peace in Côte d’Ivoire.

Liesl Louw-Vaudran, ISS Consultant

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