Africa and the ICC: Which way forward?

The International Criminal Court (hereafter the ICC) is the world's first permanent international criminal court. The ICC was established pursuant to the adoption of the Rome Statute on the 17th of July, 2002. Senegal was the first country to ratify the Statute. Prior to coming into force of the ICC, the international community responded to specific conscience shocking situations around the world with the setting up of 'hybrid' courts. The earliest of these tribunals were the Nuremberg and Tokyo Tribunals after the end of the Second World War, to trial Nazi war criminals. These hybrid courts were the precursor to the ICC. They were constrained mainly because of the very limited agenda that informed their existence. More recently, The International Criminal Tribunal for the former Yugoslavia (ICTY); the International Criminal Tribunal for Rwanda (ICTR); the Special Court for Sierra Leone (SCSL) and the Special Tribunal in Lebanon and Cambodia. These were all attempts by the comity of nations to respond to specific egregious violations of international human rights law, the laws of war ( the 4 Geneva Conventions of 1949 and 1950). These courts were designed to confront state impunity and atrocious acts that shocked the conscience of the international community.

The ICC unlike these ad hoc tribunals is a permanent court. It is headquartered in The Hague. Of the 110 countries that have so far ratified the Rome Treaty, 30 are African State parties. Nigeria ratified the Treaty on the 27/09/01. Nigeria operates a dualist system with respect to the doctrine of incorporation of Treaties, thence, though Nigeria has ratified the Rome Statute, it has not yet become part of Nigeria domestic law. Under the Nigerian constitution, it requires the passage of a local legislation by both Houses of the National Assembly, as well as the assent of the President for the Statute to have municipal force of law within Nigerian courts.

The ICC has no 'universal jurisdiction'. The jurisdiction of the court is either invoked or triggered. The ICC's jurisdiction is invoked where a State Party to the Rome Statute makes a referral to the court. Of the 4 situations presently before the court, 3 arose from such 'self-referrals' by Uganda, Central African Republic (CAR) and the Democratic Republic of the Congo (DRC). The ICC Prosecutor can also trigger a case in exercise of his pro priotu (on his own initiative) powers i.e. by initiating investigation with a view to prosecution. This power has never been exercise by the Prosecutor. The Prosecutor is presently investigating several situations with a view to commencing prosecution if the State Parties in question fail to take steps. This is currently the situation in Kenya. Finally, the jurisdiction of the court can be triggered by the United Nations Security Council in exercise of its Chapter VII powers, referring a situation to the Prosecutor, even if such a country is not a signatory to the Rome Statute. This is the basis of the present situation in the case of Sudan, following the report of the Darfur Commission into crimes of genocide, war crimes and crimes against humanity alleged to have been committed in the Darfur region of Sudan.

The ICC operates on the principle of 'complementarity' or 'subsidiarity'. This means that recourse to the ICC is secondary and that States are primarily encouraged to put in place national judicial systems for dealing with persons who are alleged to have committed or 'bear the greatest responsibility' for the commission of war crimes, crimes against humanity and genocide. The ICC in a sense, should be a court of last resort where national authorities are 'unable or unwilling' to prosecute those who commit such heinous crimes.

The ICC is at a crossroads. The Rome Statute falls for review in 2010. Kampala the capital of Uganda will host the review conference in May. It will be a defining moment for the court. The agenda of the review conference amongst others will attempt to resurrect the definition of the crimes of aggression. This was deferred at the negotiation of the Rome Statute as States could not reach a consensus as to what constitutes crimes of aggression. The review conference will also review the powers of the Prosecutor to initiate prosecution. For Africa, the review conference it appears is set to pitch African States and non State parties to the Rome Statute as to the future of the court vis-à-vis what is being considered in some quarters, as the court unduly 'picking on' African countries. Prof. Mahmood Mamdani is a leading advocate of this school of thought. Prof. Jalloh on the other hand, although acknowledges the primacy and desirability of the ICC for Africa, is somewhat cautious and advises that Africa’s' relationship with the court must develop taking into consideration the peculiar nature of the African situation. He opines that if this delicate balance is played out, the ICC could be a 'win win' situation for Africa, given the internecine wars and conflicts, gross abuse of human rights and poor governance presently in Africa.

The ICC's recent warrant for the arrest of President Omar Al-Bashir of Sudan also provides the context and background for the forthcoming review conference. Al-Bashir is now an international pariah. To date, he has not succeeded in visiting any of the State Parties to the Rome Statute. Only recently, there was the real threat that he would come to Nigeria for the AU Peace and Security Council (PSC) meeting, where the Mbeki report was to be discussed. The combination of unfavourable public opinion and the concerted efforts by civil society organizations, prevented this from happening. The Nigerian Coalition on the international Criminal court (NCICC) launched a major advocacy blitz both in the print and electronic media to forestall the said visit. Thankfully, the Federal government of Nigeria harkened to wise counsel and this did not happen.

The Al Bashir arrest warrant has split African countries down the middle. At the recent African Union Preparatory meeting on the 3rd to 6th of November, 2009 - in advance of the review conference - the AU attempted to juxtapose the question of justice with those of peace and security. In the result, it is unclear whether African countries will be speaking with one voice or discordant voices. It would be interesting to see how these issues pan out. What implications it would have for Africa. The implications for the ICC given that African State parties constitute the largest continental bloc that have ratified the Rome Statute. On a broader level, it will bring to the fore the question of addressing state impunity, conflicts and wars, and the larger questions of the violations of human rights and implications for good and democratic governance in Africa.

Daniel Ehighalua
Senior Programme Officer CDD
Secretary NCICC

USING TREATIES TO IMPROVE ELECTORAL DEMOCRACY IN AFRICA

From 11th to 14th November, African academics, human rights activists and a number of partners met in Accra to reflect on best practices for advancing electoral democracy in Africa. At the end of the 1980s, struggles against authoritarianism led to democratic transitions and the return of pluralist democracy in Africa and other parts of the world. Since then, more and more countries have joined the democratic train and to consolidate the journey, regional and continental organizations have enunciated a number of democratic principles to guide the process of democratic consolidation. It was in this context that ECOWAS, and later, the African Union formulated constitutional and democratic principles through the use of two specific legal instruments; namely the Supplementary Protocol on Democracy and Good Governance as well as the African Charter on Democracy, Elections and Governance to advance the cause of deepening democracy.
Over the last five years however, democratic consolidation has been challenged by many incumbent Presidents and a clear pattern of democratic reversals is now emerging. The first indication was a series of constitutional amendments aimed at securing tenure elongation for African Presidents seeking a return of the old autocratic culture of “President for life”. In addition, a despotic monarchical element has emerged in which life presidents arrange for their children to succeed them. Monitoring democracy in Africa today reveals a sombre picture. In West Africa for example, the Gambia has shown disdain for human rights and its President was recently on television threatening to shoot human rights defenders. Côte d’Ivoire has been embroiled in civil war and has been unable to organise elections over the past five years. Guinea has suffered a coup d’état and the military junta is refusing to step aside for free and fair elections to hold. In Guinea Bissau, the army shot dead the President and although presidential elections have taken place, political stability remains fragile as the army controlled by drug smuggling generals continues to hold the country to ransom. In Niger, the President has just carried out a civilian coup d’état, postponed elections by three years and is ruling by decree. In Nigeria, the organisation of three successive elections has been fraught with rising fraud and rigging. In this context, it is vital that African citizens use the democracy instruments their leaders have signed or ratified to re-energise the struggle for democracy and free and fair elections.

ECOWAS Protocol has outlined the key principles that must be defended: the separation of powers, effective parliaments, the independence of the judiciary, freedom of the bar. The protocol considers elections as the only way for the assumption of power, condemns anti-constitutional changes, advocates for the principle of popular participation in decision making, the cantonment of the army, the secular state, respect for fundamental rights and freedom in the establishment of political parties. In order to ensure respect for the provisions by the states, the protocol contains a clause on sanctions for the non respect of these principles by the states.
The African Charter and the Supplementary Protocol have proposed clear principles that augur well for the future of democracy and good governance. Their implementation however requires certain conditions including the ratification process by states. The Protocol has come into effect as ten states have ratified it. The Charter has however been ratified by only two countries, Ethiopia and Mauritania.
By Jibrin Ibrahim
Director CDD

Welcome to CDD Blog

Established in 1997 to mobilise global opinion and resources for democratic development, the Centre for Democracy and Development has over the years done research, capacity building and training on issues of democratic and economic development within the West African sub region.

With a mission of providing an independent platform through which issues of economic and democratic development can be presented. The centre has over the years provided its opinion on issues with the aim of objectively addressing the challenges that impede economic and democratic development within the West Africa sub region.
It is in respect of this that the CDD is presenting this platform of a blog site to enhance interactive debates on thought provoking issues within its area of work as a way to finding objective solutions in the quest to achieve economic and democratic development within the West African sub region.
Dr. Jibrin Ibrahim
Director CDD