Rethinking the North-South divide in international criminal justice: Reflections from an African viewpointPosted: 25 October, 2016
Author: Francis Dusabe
‘Whatever you do for me but without me, you do against me’– Mahatma Gandhi, 1869-1948
More than ever before, Africa is at both sides of the coin; it is the subject of international criminal law because African states have steadfastly stood for the creation of the International Criminal Court and an object of international criminal law because of the unfortunate participation of Africans in atrocities that ravages their continent.
Unlike what many think, Africa has a lot to offer in the development of international criminal law, be it at domestic, regional and international level. Domestically, Africa leads other continents in the nationalisation of international criminal law either through domestication of the Rome Statute or the incorporation of main principles of international criminal law as enshrined in major conventions and treaties in national law.
Corruption is a threat to human rights in that it erodes accountability and results in impunity. Given the interdependence of human rights, the impact of corruption on the whole spectrum of human rights; economic social and cultural rights as well as that of the civil and political rights is significant. It fundamentally distorts the machineries necessary for the realization of human rights namely good governance and rule of law.
Corruption undermines a government’s ability to deliver goods and services. It results in discriminations in the use and enjoyment of human rights. It further undermines the ability of individuals to access justice and corrode their role as active participants in decisions that affect them within the public service. Corruption has a disproportionate impact on vulnerable groups such as women, children and the poor as it decreases funds available for the provision of basic services like education, health and social services that these groups are mostly dependent on.
Maternal mortality rates reflect disparities between wealthy and poor women, and between developed and developing countries. [i] Frequently, whether women survive pregnancy and childbirth is related to their social, economic and cultural status. The poorer and more marginalized a woman is, the greater her risk of death. [ii] Ninety–nine per cent (99%) of maternal deaths occur in developing countries, and most of these deaths are preventable. [iii]
While worldwide maternal mortality has declined – in 2013, the global maternal mortality ratio (MMR) was 210 maternal deaths per 100,000 live births, down from 380 maternal deaths in 1990 (a 45 per cent reduction) [iv] – unfortunately in Kenya maternal mortality has decreased very little, i.e., from 490 to 400[v] in the period between 1990 and 2013, compared to the Millennium Development Goal No. 5 (MDG) target [vi] of 147 per 100,000 births. [vii]
When we neither punish nor reproach evildoers, we are not simply protecting their trivial old age, we are thereby ripping the foundations of justice beneath new generations. – Solzhenitsyn
It is in the wake of the Public Protector’s findings regarding an upgrade to the President Zuma’s private residence in Nkandla that, the importance and our tolerance for Chapter 9 institutions comes to the fore. Having presented her findings to the public, the Public Protector was hailed by some as a heroin to a South Africa that is ridden with corruption, whilst some questioned her credibility and the integrity of her office. It is submitted that these debates are ordinary in a vibrate democracy like South Africa’s and should be welcome. However, what should not be welcome are unsubstantiated remarks aimed at undermining the office of the Public Protector, or any of the other Chapter 9 institutions, namely, the South African Human Rights Commission; the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; Commission for Gender Equality; the Auditor General; and Electoral Commission. These institutions, as provided for in section 181 of the Constitution, form a cornerstone to the sustenance of democracy and are important for the full realisation of other democratic principles such as accountability, respect for the rule of law and human rights.
Should the African Union be accountable and answerable to the African Court on Human and Peoples’ Rights?Posted: 11 July, 2012
The African Court on Human and Peoples’ Rights (the Court) has recently delivered a judgment in the case of Femi Falana v The African Union. The judgment is rather controversial on various levels. Firstly, the Court decided to interpret Articles 5(3) and 34(6) which, read jointly, imply that individuals or Non-Governmental Organisations (NGOs) can have access to the Court only if the state from which they are has deposited the declaration accepting the jurisdiction of the Court in accordance with Article 34(6). This was certainly not the issue in the Falana case. What had to be determined was whether the African Union (AU), which is not a state party to the African Charter on Human and Peoples’ Rights or the Protocol establishing the African Court (the Protocol), could be sued and such an interrogation required the interpretation of Articles 3, 30 and 34 (1&4) of the Protocol. Secondly, the Court, at the very onset, failed to consider whether or not it has jurisdiction ratione personae and decided to proceed to judicial consideration of the applications which is procedurally flawed.