Before a fully packed courtroom at The Hague on January 28, 2009, the International Criminal Court (ICC) prosecution called its first ever witness, a young man from Ituri, north eastern DR Congo, a moment that offered meaning to the court which had lasted barely seven years.
While testifying under a pseudonym, ‘Mr Witness’ stated that he had been recruited as a child soldier when rebels under the command of Thomas Lubanga abducted him while he was going to school 10 years earlier.
Although critics questioned why prosecution had only charged the DRC rebel leader with conscripting child soldiers even when communities in Ituri accused him of orchestrating bigger atrocities such as mass murder and rape, prosecution responded that the charges reflected the strongest evidence it gathered.
The witness, however, stunned the court after a lunch break when he demanded to retract his entire testimony on grounds that a Congolese NGO the prosecution had tasked to find witnesses had coached him on what to say on the stand.
Everything ‘Mr Witness’ had claimed in the morning, he said, were false.
Ten years later, with ICC trying cases in eight African states, most of the problems that were apparent in the Lubanga case, including outsourcing investigations to and using local intermediaries by the prosecution, continue to bedevil the court.
At Kenyan president Uhuru Kenyatta’s inauguration in April 2014, President Museveni belittled the ICC as a tool “grabbed by a bunch of self-seekers and shallow minded people whose interests is to mint revenge on those who hold opposing views”.
President Museveni’s statement was followed by that of Ethiopian foreign minister Tedros Adhanom at the AU summit in Addis Ababa a few months later who said majority of African states who subscribe to the court have lost trust and confidence in it.
Mr Adhanom announced that African nations had agreed that sitting heads of state should not be put on trial by the ICC since the court was a “political instrument targeting Africa and Africans”.
UK-based scholar Phil Clark of the SOAS University of London has authored a book pointing out how The Hague-based court has been manipulated by state actors and how it has suffocated Africa’s existing justice mechanisms.
In an interview with this newspaper last weekend while launching the book, Distant Justice: The Impact of the ICC on African Politics, in Gulu Town, Dr Clark said the court is too far from reaching its goals of investigating and successfully trying war crimes and crimes against humanity in Africa.
Upon investigating the operations of the court in Uganda and DR Congo from 2006 to 2018, Dr Clark says the court is undoubtedly a raw deal for Africans.
The principal reason the ICC has failed to conduct effective investigations in Africa is the deployment of non-African investigators with limited experience in Africa, Dr Clark says.
“Across Africa, the prosecution choose to drop its investigators into crime scenes for only very few days and often dividing their time between multiple cases across several states. This also led to the collapse of the case against alleged FDLR [Democratic Forces for the Liberation of Rwanda] commander Callixte Mbarushimana in the DRC,” he says.
The case against FDLR’s Mbarushimana did not even proceed to trial because the evidence against him was too weak to get his charges confirmed by the ICC Pre-Trial Chamber.
Clark says to date, neither the ICC prosecution nor defence have hired a single investigator from any of the eight African states where investigations have taken place, whereas the investigators have struggled to gather evidence that can withstand scrutiny in the courtroom.
Much as foreign nationals are perceived to be more impartial, this has denied ICC the domestic expertise essential in investigating atrocities in difficult conflict environments.
“These shortcomings in ICC’s approach contributed directly to the acquittal of ICC’s two highest profile suspects to reach the dock; former Congolese rebel leader and vice president Jean Pierre Bemba and former president of Ivory Coast Lauren Gbagbo,” Clark says.
The problem with the Gbagbo case – which has bedevilled the prosecution’s investigations across Africa – is that it was based on second hand evidence (mainly reports from local media and NGOs) rather than eyewitness testimony, documents and other forms of evidence gathered directly by the prosecution, Clark says.
In Darfur and Kenya, the ICC’s inability to conduct effective investigations in the face of hostile governments forced the prosecutor to halt all proceedings and drop all charges.
In January this year, seven years after issuing an arrest warrant for Gbagbo for crimes against humanity during 2010-11 post-election violence in Ivory Coast that claimed more than 3,000 lives, ICC judges ruled that he and his former youth minister Charles Ble Goude had no case to answer.
As the only former head of state to have been prosecuted by the ICC, Gbagbo’s acquittal was the biggest blow to the court since its inauguration.
In December 2003, Uganda referred the situation in northern Uganda to the ICC, but before President Museveni agreed to it, there were substantial negotiations between The Hague and Kampala for nearly a year over the nature and ramifications of a state referral.
According to then Ugandan Solicitor General Lucian Tibaruha, ICC openly approached government to bring Uganda on board much as government was still discussing all the implications of the referral.
In 2005, the court issued arrest warrants for five top LRA commanders: Joseph Kony (LRA commander), Vincent Otii, Raska Lukwiya, Dominic Ongwen and Okot Odhiambo.
It is said that three of the commanders have since died, with only Ongwen (currently on trial at the ICC) and Kony remaining. But the court recently dismissed claims of Otti’s death, saying it will take his death into account if DNA tests proved it.
Connivance, conflict of interest
Heavily dependent on state cooperation, ICC has conducted investigations in lockstep with domestic governments, including travelling to crime scenes with members of the national army and police.
During pre-referral negotiations in Uganda and the DRC, Clark says he has evidence that the ICC prosecution assured the Ugandan and Congolese governments that it would focus only on rebel leaders and not state actors.
“Majority of respondents argued that such actions violate the social contract between the state and its citizens. In northern Uganda, State violations have included forced displacement, murder, rape, torture and failure to protect the population from LRA rebels,” he says.
Too often the ICC, especially the prosecution, wedded itself to African governments, seeking their cooperation in exchange for turning a blind eye to government crimes.
Clark says this happened in Uganda, DRC, Côte d’Ivoire and Mali where the ICC kept chasing after governments to refer to it their cases contrary to the known voluntary protocol of state referrals.
“After 17 years in operation, the ICC has proven structurally incapable of prosecuting heads of state or sitting government officials, encouraging malefactors to cling to power besides being unresponsive to local people who attribute great importance to prosecuting state crimes,” he adds.
ICC has a principle that the court will not intervene when domestic institutions have already initiated proceedings against specific suspects, as long as proceedings show a genuine willingness and ability to investigate and prosecute crimes.
However, pointing to the case of DRC rebel leaders Thomas Lubanga, Germain Katanga and Mathieu Ngudjolo, Clark says the ICC assumed jurisdiction over cases that were already being addressed domestically.
Similar dynamics have surrounded the Saif al-Islam Gaddafi case in Libya and the Simone Gbagbo case in Côte d’Ivoire – cases where the ICC has claimed jurisdiction despite domestic proceedings being underway against these individuals.
Only five of the 28 ICC cases in African have been completed, five collapsed before or during the trial while the remaining cases have not progressed due to insufficient evidence, and failure of states and peacekeeping missions to capture and transfer suspects to The Hague.
But Dr Clark recommends that new working methods has to be developed by ICC to show its capability in dealing with government cases by bringing in political and social experts from the countries in question who can advise on how to navigate power politics in a country like Uganda.
“The court needs to find better ways to gather evidence without relying so heavily on states. It has to develop better relations with UN and AU forces on the ground since it requires gathering different types of evidence gained without working with governments,” he added.
When contacted for this story, Ms Maria Kamara Mabinti, the ICC coordinator for Uganda and Kenya, declined to give a comment.
“I cannot comment on a document, or authoritatively respond to any issues in it because I have not read the book. I only hear about. I am yet to consult the office of the prosecutor whether they are aware,” Ms Mabinti said.
However, the deputy director of the Uganda Media Centre, Col Shaban Bantariza, disagrees with the claims made by Dr Clark of connivance between ICC and the Ugandan government.
“For him to say government of Uganda connived with ICC to avoid trial of State agents alleged to be involved in the LRA atrocities, he has to point out the name of these persons so that we can be able to authenticate his claims. Unless he does that, I can only narrow the book to an opinion he has penned down,” Col Bantariza says.
Bantariza also disputes claims that by referring the top LRA commanders to ICC, it undermined the credibility of the local courts.
“Uganda did not refer every key suspect in the LRA atrocities to the ICC except a few. As it referred those ones, the other key perpetrators were left to be dealt with by the local courts in Uganda,” He adds.
Mr Daniel Omara Atubo, a lawyer, says the ICC should not be disregarded as a useless institution since it was formed after weaknesses were revealed in the local courts within most African states.
“We need to give ICC time, most African leaders are dictators who claimed power through war and the level of democracy registered in these countries are too alarming and does not provide a strong base for independent judiciary systems,” Mr Atubo says.
According to him, the ICC should instead consider decentralising their courts and strengthening them in order to improve their level of investigations and evidence collection.
Mr David Martin Aliker, a political commentator, says Dr Clark’s arguments raise the strongest evidence as to why there is need to decolonise judicial processes in Africa.
“African leaders need to defend justice in a manner that Africans can understand. I don’t know how long it will take for Africans to open their eyes and realise that our problems require solutions from us alone who understand the causes better. Foreign parties will definitely use double standards,” Mr Aliker says.
Mr Solomon Muyita, the Judiciary spokesperson, says much as ICC and local courts in Uganda have been handling cases of similar nature (crimes against humanity), ICC has never had influence over the Ugandan courts.
“The ICC and ICD [International Crimes Division] are two different courts run by different systems. We have successfully tried ADF’s Jamil Mukulu, Rwenzururu King [Charles Wesley] Mumbere, and LRA’s [Thomas] Kwoyelo etc. without being hijacked or referring them to ICC,” he says.
Although he acknowledges ICC’s role in trying cases of alleged war crimes and crimes against humanity in northern Uganda, Mr Muyita says the local courts remain incapacitated due to poor infrastructure, funding and human resource.