Some reflections on the current Africa’s project on the establishment of African Court of Justice and Human Right (ACJHR)

Tefera Degu AddisAuthor: Tefera Degu Addis
LLM candidate, International Human Rights and Humanitarian Law, University of Essex School of Law, UK

It has been more than thirteen years since the ICC was established and started its operation on most serious crimes of international concern, namely genocide, crime against humanity, crimes of war and aggression. The court is established by virtue of the Rome Statute as a permanent international criminal tribunal independent from other UN bodies. To date, all cases that have been investigated by ICC are from Africa. African countries generally have cooperated in the early stages of the establishment of ICC.

Nowadays, however, it seems that the relationship between the ICC and Africa is turning into a growing trend of contention. It has been a point of discussion in the academia and in the international politics as to whether the court is indeed exclusively targeting Africa regardless of their contribution and cooperation in the creation and advancement of ICC. The AU and various leaders in Africa have expressed their dissatisfaction in different occasions that the court is “neo-colonialist policy” or “post-colonial court.” As a result, the AU in 2008 adopted a protocol on the establishment of African Court of Justice and Human Rights (ACJHR). The protocol is being circulated and so far 11 countries have signed the document. Last year at the AU Summit, the current president of Kenya urged for the immediate establishment of the court.

Notwithstanding the current uncertainty about the fate of the Draft Protocol and thereby the establishment of the ACJHR, it is worthwhile to examine some of the challenges and opportunities that the court might face and the future of international criminal justice in Africa.

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The SADC Tribunal: Concerted efforts for waves of change we want to see

Patricia_MwanyisaAuthor: Patricia Mwanyisa
Human Rights, Justice and Rule of Law Programme Officer, Open Society Initiative for Southern Africa (OSISA)

Victoria Falls in Zimbabwe is known for its spectacular and majestic water falls. In August last year it was not just water that was falling at Victoria Falls but the SADC Tribunal as we know it fell spectacularly as leaders from the Southern African Development Community approved a new protocol to reconstitute the SADC Tribunal. The new tribunal has a limited mandate. By adopting a new protocol, the leaders effectively buried the SADC Tribunal which used to operate under the 2000 protocol. They decided to ignore recommendations from their own legal advisors and attorney generals and created a new Tribunal whose mandate is limited only to the adjudication of inter-state disputes. Simply put, under the 2014 Protocol, citizens are deprived of their right to refer a dispute between themselves and their government to the SADC Tribunal. Without a tribunal, justice and redress will remain elusive for people of the region.

It is important to remember that central to the demise of the tribunal is the case of Mike Campbell and Others v Zimbabwe (Campbell Case) in which the Tribunal found in favor of Zimbabwean white farmers whose land had been compulsorily acquired and without compensation by the Zimbabwean government. In retaliation Zimbabwe strategically attacked the jurisdiction and operation of the tribunal, mobilized support for its suspension and ultimately, its eventual disbandment. By succumbing to the demands of Zimbabwe, SADC Heads of state have ultimately eliminated the access of individuals and groups to the Tribunal at the behest of one State [Zimbabwe] and consequently depriving the entire region of the benefits of such an important institution. Discussions and decisions on the utility of the Tribunal should rather surpass the opinion of one State’s argument based on just one case and personal short term gains. Even so, Zimbabweans themselves and particularly politicians and elected MPs who represent the people of that country must objectively review the wisdom in taking such a stance – more so at a time when Zimbabwe chairs the SADC bloc. They must never forget that they too are ordinary individuals who also depend on fair, transparent and accessible judicial mechanisms which they may need at some point in their lives regardless of their political affiliations. That is, at any given time the tide turns, politicians whether in opposition or in power are susceptible to becoming victims of State sanctioned attacks on the dignity of individuals, including political violence.

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Sexual violence against children: Are girls in Mozambique little angels or sex objects?

michael_addaneyAuthor: Michael Addaney
Student (MPhil Human Rights and Democratisation in Africa), Centre for Human Rights, Faculty of Law, University of Pretoria

Global statistics indicate that child sexual abuse is increasing with an estimated 150 million girls and 73 million boys under the age of 18 having experienced forced sexual intercourse or other forms of sexual abuse. According to the East, Central and Southern Africa Health Commission, one out of three girls in Sub-Saharan African experiences some form of sexual violence before the age of 18. In Mozambique alone, 33% of children between 12 and 15 years have been victims of sexual violence, one of the highest rates in the world.

Also, the United Nations Children’s Fund (UNICEF) observes that child prostitution is a growing concern in Mozambique. The Mozambican Ministry of Gender, Children and Social Affairs links the increased sexual violence with the country’s failure in the realisation of the child’s right to education with an estimated 36% of girls aged between 13 and 18 years married instead of being in school.

This situation is also attributed to the Mozambican civil war which weakened institutions particularly those protecting the rights and welfare of children. Despite major sector-specific strategic frameworks to combat sexual violence against children, these are often done with little consultation and coordination. This has had a deleterious effect on the enforcement of children’s rights through the existing legal and institutional arrangements.

Meanwhile, Mozambique is a state party to the Convention on the Rights of the Child (CRC), African Charter on the Rights and Welfare of the Child (ACRWC), African Charter on Human and Peoples’ Rights (African Charter), Convention on Elimination of all forms of Discrimination against Women (CEDAW) and all the relevant international human rights instruments. The domestic framework for addressing sexual violence against children includes the Children’s Act of 2008 and Juvenile Justice Act of 2008 which translate the CRC and the ACRWC into national child rights legislation.

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Rising against the silencing of the SADC Tribunal: Tanzania

Gertrude Mafoa QuanAuthor: Gertrude Mafoa Quan
Candidate Attorney; LLM (Multidisciplinary Human Rights) student at the Centre for Human Rights, University of Pretoria

‘We have created a monster that will devour us all’.

These were the words of Tanzanian President Jakaya Kikwete regarding the SADC Tribunal. This is at best an expression that is the epitome of the fear of SADC leaders of an existing and functioning Tribunal.

Like in many other regions, the SADC tribunal served as the mechanism through which the region’s dispute could be settled. One of the goals of the treaty was to establish a tribunal (which it did) and that the “[t]ribunal shall be constituted to ensure the adherence to and the proper interpretation of the provisions of this Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it” ( SADC Treaty, 1992, Article 16.1). Perhaps one of its most striking promises was in Article 4(c) which bluntly states that ‘ SADC and its Member States shall act in accordance with the principles of human rights, democracy, and the rule of law’. The implication is that all member States could indeed be held accountable should any of the said principles in Article 4(c) be violated. According to the Protocol on the SADC Tribunal, subject to the exhaustion of local remedies, all companies and individuals may approach the Tribunal to seek remedy if and when a member State has infringed on their rights (Article 15).

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