The imminent mass exodus from the ICC by African member states: A turning point for justice in Africa?

 Author: Thabang Mokgatle
Candidate Attorney, Rushmere Noach Incorporated, Port Elizabeth, South Africa

This post originally appeared on LinkedIn.

After several months of reading headlines, scholarly articles and opinion pieces about the International Criminal Court (ICC) and its alleged anti-Africa agenda, news that Senegal had taken a decision to prosecute former Chadian leader Hissène Habré for, amongst others, crimes against humanity was welcomed.

Implementing the international law principle of universal jurisdiction, the Extraordinary African Chambers (EAC) were opened in Senegal in 2013, giving the domestic courts of the country the authority to try the former leader for war  crimes committed in Chad from 1982 to 1990. Universal Jurisdiction, and particularly the jurisdiction of the EAC allows for the African member State to prosecute persons responsible for international crimes, irrespective of whether they are a former or sitting Head of State. As Thulasizwe Simelane of ENCA News aptly puts it, the trial is “‘one small step for a country (Senegal) and one giant leap for the continent” .The move is indeed revolutionary for Africa. Revolutionary because one need only refer to media headlines to deduce that the gripe African leaders have with the ICC is underscored by its persistent ‘targeting’ of African leaders in office.

When Kenya indicated that it would soon be cutting its ties with the ICC in 2013 (following charges against President Uhuru Kenyatta and Deputy President William Ruto for post-election ethnic violence in Kenya circa 2008), a number of the ICC’s member States on the African continent followed, humming a similar tune. This announcement was met with mixed reactions, as those pro the decision to leave the Court cited bias and unfair treatment of African cases, insisting that several other nations across the globe were equally eligible to have their human rights records interrogated.

Those averse to Kenya’s decision to leave the ICC, in particular human rights organisations and observers both in Africa and abroad, employed the late Martin Luther King Jnr’s sentiment that “Injustice anywhere is a threat to justice everywhere”- nullifying talk of abandoning the court due to the existence of human rights abuses elsewhere.

In an editorial piece for the Kenya Daily Nation, African member States were encouraged to remain signatories to the ICC and instead demand that their concerns be addressed, as the decision to up and leave would leave millions of Africans without the safety net of a court with International jurisdiction – one capable of addressing the most heinous international crimes in lieu of domestic courts lacking in resources and powers to effect justice.

The Habré trial has been hailed a great victory towards the victims’ justice. Beyond political wrangling on the agenda and bias of the ICC, the trial signals the end of an eight- year chapter littered with horrific accounts of violence, torture and the irreversible loss of thousands of lives. And for that, we have the AU and the EAC to applaud. Is this finally the light at the end of the very long, gloomy tunnel of human rights abuse on the continent?

Word of an African Court of Justice (ACJ), to have been established by an AU protocol in 2008, presented a hopeful end to the ICC and Africa debate. However, eight years later, eleven African member state signatories to the ACJ and no clarity on the future of the proposed court, the hopes of having an independent African court to interpret human rights treaties and tackle war related crimes on the continent have dwindled.

ICC, EAC, ACJ or not, the crux of the matter is that Africans need assurance from their governments and leaders that the rule of law will be observed and respected whilst remaining free from political hindrances and agendas. Africans need to know that the grievances of the ordinary citizen can be addressed by the law and the courts, without fear or favour. To boil down the conversation of Justice on the continent to the problematic position of the ICC on all matters Africa, does not re-assure that the basic freedoms and rights of citizens will be protected and upheld.

Namibia is the first African country to formally confirm its withdrawal from the ICC, with its Minister of International Relations Netumbo Nandi-Ndaitwah stating that the nation no longer needs the services of the court. Namibia’s entry into the ICC was as a result of unsteady domestic institutions, prior to it receiving independence. This indicates that Africa is in the midst of a significant turning point concerning justice. That the rumblings of change towards belief in our own institutions, our own resources and mechanisms to address the human rights disputes within national and cross-national boundaries have begun.

Perhaps for the time being, whilst bearing witness to the great feats towards justice on our beloved continent, we the citizens can throw caution to the wind on the proposed mass exodus of African member States from the ICC. Perhaps we can give African member states the benefit of the doubt in light of the events unfolding in Senegal at present, and choose to remain hopeful that our governments and leaders are indeed looking to strengthen local institutions in the spirit of protecting and maintaining the fundamental human rights of their electorates.

About the Author:
Thabang Mokgatle is a final year Candidate Attorney at Rushmere Noach Incorporated in Port Elizabeth. She obtained her BA in Legal Theory and Political Studies (2013), as well as her LLB (2015) from Rhodes University.  In 2013, she was selected as one of two representatives from her Alma mater’s Law Faculty to participate as a Judge in a Moot simulation of the International Criminal Court – hosted annually by the Kreisau-Initiative in Berlin Germany. She was invited back as a co-trainee for the Judges team in 2014. She is also currently a board member of Junior Chamber International (JCI) Nelson Mandela Bay Chapter – an international youth lead movement for active citizenship. She takes keen interest in human rights and international humanitarian law issues, amongst others. She is passionate about justice and development on the African continent.