Africans seek alternative court to ICC, face challenges

Sunday October 30 2011

By Paul Amoru

Johannesburg, south africa

The Fifth Ordinary Session of the Pan African Parliament (PAP) a fortnight ago closed in South Africa with legislators from over 40 countries urging African leaders to engender what they described as a homegrown criminal justice system.

The rallying call directly asks the African Union (AU) leadership to spearhead a process that can ensure the promotion of the work of the African Court on Human and People’s Rights. The Court is the judicial arm and one of the 10 organs of AU.

The Protocol establishing the Court was adopted in 1998 and came into force on January 2004, but only 26 countries out of the 54 AU Member States have so far ratified it. State Minister for Constitutional Affairs Fred Ruhindi confirmed to Sunday Monitor in a telephone interview that Uganda ratified the Protocol in 2002.

Without ratifying the Protocol, the Court would not have the mandate to pronounce itself on legal matters brought to its attention. According to PAP members, a vibrant African court would help address what they referred to as “selective prosecution” currently being pursued by the International Criminal Court (ICC) in Africa.

Uganda’s representatives to PAP argue that the ICC will instead hinder the development of an African legal framework. They fear ICC will also stifle local capabilities to try suspects of grave crimes and dispense justice.

The Leader of the Ugandan delegation to PAP, Ms Cecelia Ogwal, called the ICC role ‘duplicitous’, a reality she warned will erode Africa’s confidence in its work. “It should be noted that the ICC is quick to pursue African leaders suspected of committing grave crimes against humanity and yet so reluctant to issue indictments on leaders in the West, suspected of committing similar crimes,” Ms Ogwal said. She noted that before the gate is open for the ICC to try cases on the continent, an African justice system should first be exhausted. “This will enable Africa to deal with its own situation,” she said.

The MPs expressed their concern that little was known about the Court and its role. Concerns were also raised that the Court is often sidelined by some of the African opinion leaders and individual rights groups who often prefer to refer cases to the International Criminal Court in The Hague, Netherlands.

While presenting a report during the session on the role of PAP in promoting the Court’s work, the president of the African Court on Human and Peoples’ Rights, Mr Justice Gerard Niyungeko, asked the House to use its position to encourage respective Member States to ratify the Protocol establishing the Court.

An appeal to members
Justice Niyungeko appealed to the Parliamentarians to encourage Member States to submit a special declaration to permit individuals and NGOs to access the Court directly, as provided for in Article 34(6) of the Court. Currently, only five out of the 26 countries that have so far ratified the Charter, have made that special declaration allowing individuals and NGOs to petition the Court.

These are Burkina Faso, Ghana, Malawi, Mali and Tanzania. Uganda has not yet but Mr Ruhindi last week confirmed that a process is already underway to complete the declaration. He, however, did not give any time frame. Kibanda County legislator Sam Otada Amooti, one of Uganda’s representatives to PAP, however, said the delay by some States is unfortunate. “I am concerned that there is lack of political will to promote the court, they (African Presidents) have the majority of membership in their national parliaments, so they must be seen to drive this process,” he urged.

However, the last decade has witnessed significant advances in the human rights landscape in Africa. The recent Arab spring including the rise of revolutionary forces in Lybia, Egypt, Tunisia and Ivory Coast seems to usher in a new era of accountability with perceived African despots put on notice to learn from their fallen colleagues.

Former Lybian leader Muammar Gaddafi, who had already been indicted by the ICC died last week in a battle field with the Lybian revolutionary forces, before he could be subjected to the due process of the law.

At the request of the Prosecutor following his investigations, the Pre-Trial Chambers of the ICC have issued other warrants of arrest for 10 persons in total, four of whom have been successfully surrendered to the Court.

Cases are defined as “specific incidents during which one or more crimes within the jurisdiction of the Court appear to have been committed by one or more identified suspects” and entail “proceedings that take place after the issuance of a warrant of arrest or a summons to appear”. However, as observed by PAP members, the trials at the ICC, be it confirmation of charges hearings or trials, is only African leaders that are facing the charges at the moment.

Uganda’s representatives Beatrice Barumba Rusaniya (Kiruhura woman MP) and her Budaka counterpart Sarah Kataike Ndoboli urged AU to adopt a transparent mechanism of prevailing over African leaders to step down from power when they lose elections, to avoid the recurrence of the Ivory Coast experience.

Buikwe North MP, Kakoba Onyango, proposed stringent measures for consideration by the AU summit to enable Africa get rid of bad leadership. Some of the measures include diplomatic isolation, sanctions and a sustained campaign against bad governance, including prosecution in the African Court on Human and People’s Rights.

Restricted access to the African Court
Justice Niyungeko noted that the work of the Court to protect human rights was constrained by the restricted access, in the wake of growing human rights violations across the continent. He wants PAP to raise awareness about the Court’s work, both in their national parliaments and with the electorate. He proposed joint activities between the Court and the relevant parliamentary committees to promote human rights.

Under the Protocol establishing the Court, States Parties have automatic access to the Court, whereas individuals and non-governmental organisations (NGOs) can only institute cases before it if the State Party concerned makes a declaration accepting the competence of the Court to receive such cases.

Even so, the Court still has discretion to receive such cases. Moreover, states have no incentive to refer human rights cases to international human rights tribunals.