Ottilia Anna Maunganidze, Consultant - International Crime in Africa Programme, ISS Pretoria
On Wednesday 16 March 2010, the increasingly influential Economic Community of West African States (ECOWAS) Court of Justice announced that it would defer by a month its ruling on whether or not Senegal should try the former Chadian dictator Hissène Habré for crimes against humanity, torture, war crimes and other human rights violations. Habré’s lawyers brought the case before the ECOWAS court in 2008, alleging that Senegal should not be allowed to try their client as it had violated his human rights, most notably his right to a fair trial in Senegal. Senegal refutes these claims.
Habré is not the first former or sitting African head of state to be prosecuted or indicted for crimes committed while in office. Former Liberian president Charles Taylor and Sudanese president Omar Hassan al-Bashir are well known other examples that demonstrate the significant progress that has been made by international criminal justice in recent years. Efforts to end impunity for grave crimes in Africa are starting to bear fruit.
But efforts – locally, regionally and internationally – to bring Habré to justice have been ongoing since 1992. The matter has been riddled with delays, and for Habre’s victims, the wheels of justice have turned too slowly. It is therefore hoped that the ruling of the ECOWAS court will end the delays and pave the way for positive progress.
Habré’s rule of Chad in the 1980s was tainted by wide scale human rights violations that include allegations of torture and murder. In 1992, an official truth commission revealed that Habré’s regime committed up to 40 000 political murders. Moreover, it is estimated that hundreds of thousands more were directly affected, although the true scale of the alleged tortures is not known. Despite these damning findings, Habré has not been brought to trial. In fact Senegalese courts initially dismissed the case against him in 2001, but later agreed to have him detained under house arrest. It was only in 2003 that serious attempts to bring him to justice began when a group of Chadians, including some who had obtained Belgian citizenship, brought charges against Habré before Belgian courts.
In 2005, following a decision by Belgium to try Habré domestically for crimes against humanity and request his extradition from Senegal, the international criminal justice community was abuzz with talks about the impending possibility of a former head of state being tried by a domestic court abroad. However, in 2006 the African Union (AU), following a recommendation by the Committee of Eminent African Jurists, called on Senegal to prosecute Habré “in the name of Africa’’. This was part of broader rhetoric at the time which called for African solutions to Africa’s problems.
Senegal responded with apparent political support for the recommendation, and in 2008 its parliament voted for a constitutional amendment to pave the way for commencement of the prosecution before a domestic court. However, there was little progress beyond the political bluster. The Senegalese government claims that the reason for the lack of progress is financial, and that they require a staggering $40 million to proceed with the trial. Many doubt this claim, pointing instead to the meddling hand of politics in the decision.
Pressure is however mounting on the Senegalese government to move the process along. Both the ECOWAS court and the International Court of Justice (ICJ) are set to make rulings that could potentially push Senegal to commence with the trial. The ICJ’s impending ruling on Senegal’s alleged foot-dragging stems from a Belgian request relating to Senegal’s duty to either prosecute or extradite Habré (a well-known obligation under international law), and the ECOWAS case turns on whether Senegal has jurisdiction to try the former president. These cases have yet again raised hopes that Habré will be brought to justice and have, at the very least, broken the silence about this important case.
Victims of Habré’s atrocities have much to be hopeful about. If the ECOWAS Court rules that Senegal should prosecute Habré, this will add much needed regional pressure on the county’s leadership to ensure that justice runs its course. Senegal has confirmed its commitment to international criminal justice and the rule of law in the past, and will hopefully remain proud of its stated commitment towards ending impunity for grave crimes. It should be recalled that it was the first African country to ratify the Rome Statute that created the International Criminal Court (ICC), and it is one of only four African states with implementing legislation on the ICC.
It should also be noted that a Chadian court has already sentenced Habré to death in absentia for crimes committed. This is commendable, but it is not enough. The Chadian officials have no way of enforcing the judgment of the court given that Habré remains exiled in Senegal. However the symbolism of this decision cannot go unmentioned. But the victims of the horrendous crimes committed in Chad need more than symbolic gestures. They need to see justice being done, if not by their country’s courts, then preferably by African ones at least.
The AU has made it clear that Senegal should step up to the plate to try Habré. Hopefully the ECOWAS Court will echo this call, and in so doing send a clear message to unscrupulous leaders in Africa and abroad that there is no room for impunity if they commit atrocities against their own people. Twenty years is indeed a long time for victims of Habré’s alleged crime to wait. For them, the more justice is delayed, the more it is denied.