Zimbabwe’s 2008 elections and their implications for Africa
Simon Badza

Using Zimbabwe’s recent harmonised elections as an example, this paper argues that instead of being the necessary or ideal democratic tools for non-violent positive political transition in most young democracies of Africa, elections can be manipulated to prevent changes to an undesirable status quo. This is most likely if some strategic state institutions perceive their deeply entrenched positions and interests to be threatened by such necessary changes. It also argues that the harmonised elections have divided the Zimbabwean society, SADC, the African Union and the United Nations. Lastly, it also argues that flawed elections undermine prospects for democratic transition and consolidation in SADC and Africa. The SADC Principles and Guidelines are regarded as the key criteria for evaluating the harmonised elections. The paper recommends that credible democratic elections are the only viable solution to Zimbabwe’s current crises.

Chinese arms destined for Zimbabwe over South African territory: The R2P norm and the role of civil society
Max du Plessis

This paper discusses the recent litigation initiated by civil society groups involving a Chinese vessel which attempted to discharge a consignment of arms in Durban destined for the government of Zimbabwe. The author considers the litigation as an example of the emerging norm of the ‘responsibility to protect’ which has recently been developed within the United Nations, and he argues that the decision by the South African government to grant a permit for the transport of the arms over South African territory for Zimbabwe offended against the responsibility to protect (R2P) norm.

Elections and conflict resolution: The West African experience
Ismaila Madior Fall

The battle for democracy on the African continent has been long and arduous. In many African countries the absence of democracy was first experienced as political authoritarianism, enforced by quickly constituted regimes mostly characterised by their totalitarianism; their intent was to dominate practically the whole lives of their citizens, and not to tolerate any serious opposition to their aims and objectives. Under the pretext of needing to build fledgling nations, or to foster social and economic development, the political powers in charge showed little respect for civil liberties or the right to object. The seriousness of elections and their role in conflicts – and thus conflict resolution – in West Africa, can only be understood against the background of the role of elections as a primary source of conflict within these states. This paper outlines and explores that background.

The implementation of the African Charter on Democracy, Elections and Governance
Ibrahima Kane

Since the fall of the Berlin Wall and the end of Eastern Europe’s totalitarian regimes, a consensus seems to have emerged, worldwide, for the introduction of new standards into international standards, commonly called ‘democratic clauses’. The aim of these clauses is to promote the emergence of and contribute to the development of states based on respect for certain democratic principles in the world, particularly in Africa. However, the impact of these standards and principles seems to have been relatively limited. As a continent which, in 45 years, has experienced almost 85 coups d’état, as well as one-party regimes, states hooked into the ‘sacrosanct’ principle of non-interference in internal affairs, dictatorships known as among the worst in the world, and which was the theatre, between 1963 and 1998, of nearly 26 armed conflicts which affected about 61 per cent of its population, Africa urgently needed to call on these standards and principles in order to promote the return to peace, security and stability in certain of its regions.

‘God willing, I will be back’: Gauging the Truth and Reconciliation Commission’s capacity to deter economic crimes in Liberia
Rosalia de la Cruz Gitau

Liberia’s civil conflict spanned over two decades, causing incalculable damage in its wake. In 2005 the Government of Liberia established a truth and reconciliation commission (TRC) to address crimes committed during the war, to act as the sole adjudicator of war crimes in Liberia. It is the first TRC in the world with a mandate to prosecute economic crimes. Hence, the success of the TRC greatly affects prospects for peace in Liberia, and approaches to transitional justice the world over. However, several factors seriously threaten the efficacy of the TRC, including a weak legal framework for addressing economic crimes, internal power struggles at the TRC, lack of resources, and exclusion of public participation in the TRC process. The author argues that economic crimes are a principal cause of Liberia’s civil conflict, and that post-conflict efforts aimed at addressing these crimes are insufficient. She also discusses the administrative impediments that prevent the TRC from effectively deterring the commission of economic crimes. The author concludes by offering recommendations to the TRC that will strengthen its capacity to execute its mandate.

Essays

The conundrum of conditions for intervention under article 4(h) of the African Union Act
Dan Kuwali

The definition of the AU right of intervention, in its present formulation, is problematic and implementation is contentious. The question of how to determine the ‘deterioration’ threshold after which a situation ceases to be a matter essentially within the domestic jurisdiction of a state has not yet been settled. The various thresholds for intervention in article 4(h) are subjective given that the justice of warfare is such that one side’s heroes are regarded as the other side’s war criminals; there is still a lack of consensus on what constitutes genocide; and it is debatable if intervention, which is invariably reactive, would be effective in bringing perpetrators of crimes against humanity to justice. The AU right of intervention is potentially a pro-sovereign doctrine with the aim of reinforcing states’ responsibility to exercise their sovereignty. To realise this intention of the framers of the AU Act, there is a need to broaden the definition of the thresholds for purposes of intervention – or to put it starkly, prevention – while maintaining the international definitions for purposes of prosecutions.

Terror in the backyard: Domestic terrorism in Africa and its impact on human rights
Cephas Lumina

Although Africa has a long history of terrorism and a number of countries continue to experience acts of terrorism particularly in the context of conflict, scant attention has been paid to its impact on human rights. This paper seeks to contribute to an understanding of the impact of domestic – rather than international – terrorism on human rights in Africa. The article has a dual focus. First, it provides a brief overview of the human rights impact of acts of domestic terrorism in Africa and second, it examines state responses to domestic terrorism with the aim of assessing the implications of these responses for human rights.

Nuclear Africa: Weapons, power and proliferation
Gavin Cawthra and Bjoern Moeller

This paper examines the rather limited African experience of nuclear weapons, and the implications of global nuclear weapon possession and proliferation – and responses against it – for Africa. Because there is a contingent, but not necessary, relationship between civil nuclear power and nuclear weapons, it also touches on civil nuclear issues in Africa, and the implications of uranium production. Since the only country in Africa that has actually developed both nuclear energy and nuclear weapons is South Africa, much of the focus is on that country. As a result of its prowess in this field, South Africa also inevitably leads African diplomacy on nuclear governance issues. Before turning to African implications, however, it is necessary to contextualise these issues in the global framework.

Complementarity and Africa: The promises and problems of international criminal justice
Max du Plessis

The idea of an International Criminal Court (ICC) has captured the legal imagination for well over a century. It became a reality on 18 July 1998 with the adoption of the Rome Statute of the ICC, which entered force on 1 July 2002. After being in existence for just over a year, by November 2003, the court had received more than 650 complaints. A range of organisations and individuals that submitted the first complaints to the prosecutor seem to have fundamentally misunderstood the ICC; to have placed a false hope in the court as a means to provide them justice. The truth is that the court’s jurisdiction is limited temporally – it can only exercise jurisdiction on events after 1 July 2002 – and its jurisdiction is limited substantively – it can only consider the most serious crimes of international concern, being genocide, crimes against humanity and war crimes – and until a proper definition of aggression is agreed upon by state parties, it cannot consider complaints about the crime of aggression. Furthermore, the court’s jurisdiction is limited geographically. In the case of state parties, the court can exercise jurisdiction over their nationals wherever they may be in the world. But for non-state parties – like the US – the court can only exercise jurisdiction if the guilty American commits his or her crime on the territory of a state party. It is therefore critical to understand the topic that is at issue in this paper: complementarity. Complementarity is perhaps the key feature of the ICC regime. It is thus vitally important to appreciate its significance, and in so doing, to understand both the promises and problems of international criminal justice as exemplified by the ICC.