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Political will is needed for equitable transitional justice
27 March 2018

The PSC Report spoke to Institute for Security Studies senior researcher Allan Ngari about the International Criminal Court (ICC), the issue of equality before the law and transitional justice in conflict situations in Africa.

There has been a lot of controversy over the death penalty meted out against a South African military advisor for South Sudan’s opposition, led by Riek Machar. What are your views on this?

The larger questions that need further interrogation are the efficacy and capacity of the justice system in South Sudan to dispense justice in a fair and equitable manner. There are serious doubts as to such efficiency and capacity. The Obasanjo report [commissioned by the African Union (AU) in 2014] speaks in detail of the need to reform the judicial and justice system of the country.

What is the difference between equality before the law and transitional justice?

Equality before the law is a core principle in human rights law and constitutionalism. In the context of the national application of the principle, it embraces the uniform application of the law and the institutions charged with enforcing the law equally to all people, with no distinction on any basis, whether ethnic, racial, gender or any other status.

Equality before the law is a core principle in human rights law and constitutionalism
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Transitional justice relates to the range of mechanisms employed by post-conflict states going through political change from autocratic rule to democracy, and/or from periods of mass violations of human rights to the respect for the rule of law. It includes criminal accountability, truth seeking, reparations and guarantees for non-recurrence.

The Obasanjo report recommended the setting up of a hybrid court for South Sudan. How far is this process?

Obasanjo’s commission recommended that an Africa-led, Africa-owned, Africa-resourced legal mechanism be established under the aegis of the AU and supported by the international community, particularly the United Nations [UN], to bring those with the greatest responsibility at the highest level to account. Although both sides in the conflict accepted the establishment of a Hybrid Court for South Sudan [HCSS] in their August 2015 peace deal, progress has been slow. Internal processes in South Sudan on establishing the court have led to a draft statute being approved by the South Sudan Council of Ministers and the AU Commission, but it has yet to obtain parliamentary approval. Meanwhile, the AU office of legal counsel is in the process of staffing key personnel to assist with the work of establishing the court.

From a transitional justice perspective, the establishment of the hybrid court, although welcomed, would not be useful without the proper implementation of the peace agreement and establishment of the other key institutions – the Commission for Truth, Reconciliation and Healing [CTRH] and the Compensation and Reparation Authority [CRA]. As a complementary institution, the CTRH would have a mandate to make recommendations for investigation and prosecution at the HCSS. The HCSS, on its part, is expected to have the capacity to make reparation orders in order to compensate the victims of the crimes within its jurisdiction. It would therefore be meaningful for the HCSS and CRA to make reference to each other in dispensing reparative justice in South Sudan.

The establishment of the hybrid court would not be useful without the implementation of the peace agreement
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Transitional justice during or after conflict situations has been a controversial issue in many countries in Africa, not only South Sudan, but also places such as Côte d’Ivoire. What do you see as the major challenges in achieving equitable justice following the end of a conflict?

Major challenges in achieving justice in post-conflict African states revolve around a lack of political will on the part of the state to establish transitional justice institutions that would effectively deal with the past. If these institutions are created, they often do not speak to the spirit of dealing with the past and states choose the mechanisms that best suit their political exigencies. For example, the composition and functions of Côte d’Ivoire’s reconciliation commission, the Commission Dialogue, Vérité et Réconciliation, and Kenya’s Truth, Justice and Reconciliation Commission were severely compromised. Ultimately they were unable to deliver on their mandates as transitional justice mechanisms.

The AU last year supported a motion for the collective withdrawal of AU member states that are signatories to the Rome Statute. Yet so far only Burundi has withdrawn from the ICC. Where do you see this process going?

Although the January 2017 summit decision on the ICC was couched as a ‘withdrawal strategy’ for African states parties from the ICC Statute, the contents of the strategy betrayed its title. The strategy presented legal and political avenues through which African states and the AU would engage the ICC and the UN Security Council on the AU or African states’ concerns over the work of the ICC.

The strategy presented political avenues through which African states would engage the ICC
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Since that decision, only Burundi has formally withdrawn, with The Gambia retracting its plans to withdraw following the fall of the Jammeh regime. South Africa withdrew its notice following domestic court rulings on the unconstitutional nature of the withdrawal from the ICC Statute.

The January 2018 AU Summit also pronounced itself by way of a decision on the ICC. Key to the decision is the proposal to submit the question of immunity from prosecution for heads of state to the International Court of Justice [ICJ] for an Advisory Opinion. This has been chief among AU/African states’ concerns with the ICC and, of course, is a significant proposal, which would offer some progress on the question of immunity before the ICC should there be some follow-through with an advisory opinion from the ICJ. This is a position that the ISS has championed as a global policy for institutions such as the ICC’s Assembly of States Parties.

The 2018 AU decision in this regard is seen as a positive development, given that there was a missed opportunity for the ICC Appeals Chamber to possibly discuss the matter following the July 2017 Pre-Trial Chamber decision on South Africa’s non-compliance with the ICC Statute.

Do you think South Africa will stay in the ICC, given that there is a new leadership in the country?

It is difficult to state at this time whether South Africa will continue with its withdrawal from the ICC
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The 2017 African National Congress [ANC] policy conference resolved to withdraw the country from the ICC Statute. This resolution was supported by previous decisions of key structures of the ANC in 2016. Following the election of a new ANC president and structures, it’s difficult to conclusively state at this time whether South Africa will continue in its trajectory on withdrawal from the ICC Statute. The ANC policies, however, stand unopposed at this stage.

What is also clear is that, following the announcement at the ICC’s Assembly of States Parties in December 2017 by the Minister of Justice and Correctional Services that South Africa would withdraw from the ICC Statute, a bill has been presented before the National Parliament to repeal the existing South African law that binds South Africa to the ICC Statute. If this bill is debated, passed and confirmed by the president, the executive will proceed with lodging its instrument of withdrawal from the ICC Statute with the secretary general of the UN, as depositary of the ICC Statute.

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