South Africa’s intention to withdraw from the Rome Statute of the International Criminal Court: Time to seriously consider an African alternative?

rodger_owisoAuthor: Rodger Owiso
LLB – Nairobi, PGD Law – KSL

While the decision by South Africa to commence the formal process of withdrawing from the Rome Statute of the International Criminal Court is shocking, honest observers will admit it was not entirely unforeseen. African countries through the African Union (AU) have long voiced misgivings about the International Criminal Court (ICC) and it was just a matter of time before the usually slow-moving AU clock started ticking. The AU had earlier this year urged its members to consider withdrawing from the Rome Statute.[1] This was triggered by the refusal by the United Nations Security Council and the ICC to accede to the AU’s requests for suspension or termination of the cases against Sudan’s president Omar al-Bashir and his Kenyan counterpart Uhuru Kenyatta and his deputy William Ruto.

While South Africa’s decision should be condemned, nothing much is likely to come of such condemnation. Treaties are a product of state consent[2] and it follows that withdrawal is equally a unilateral act of the state.[3] Even if an argument could be advanced against such unilateralism, the process is still a political one which rests almost entirely with the political class, at least in imperfect democracies. South Africa’s move is likely to embolden other African countries to commence similar processes. South Africa is Africa’s biggest economy and the AU’s largest member contributor. It is also arguably one of Africa’s better-off imperfect democracies. For these reasons, it is often the case in continental affairs that other African countries hold on to their cards until South Africa plays after which they emerge from their cocoons and play theirs in more or less similar fashion. With the possible exception of ‘righteous’ Botswana and perhaps Mauritius that considers itself African only when the situation suits it, the possibility that other African countries will follow South Africa’s lead on the ICC cannot be ruled out. In light of such possibility, how then does Africa assure its citizens that the fight against impunity as is entrenched in its founding instrument[4] is still top of its agenda, if at all it ever was?

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Rethinking the North-South divide in international criminal justice: Reflections from an African viewpoint

francis_dusabeAuthor: Francis Dusabe
Legal Researcher

‘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.

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The 2016 Zambia presidential election petition: How not to handle election petitions

rodger_owisoAuthor: Rodger Owiso
LLB – Nairobi, PGD Law – KSL

If the drama that was Hakainde Hichilema v Edgar Chagwa Lungu (2016/CC/0031) has any lessons for the continent, it is how not to adjudicate upon a presidential election petition. Three judges of the court effectively succeeded in making an unfortunate mockery of their bench and risking the otherwise good image Zambia’s electoral process has enjoyed for a few decades now. We should, however, not be too quick to cast aspersions on the court and the learned judges. In order to understand what transpired in the Constitutional Court of Zambia, we have to look at the relevant legal provisions guiding presidential election petitions.

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The right to happiness in Africa

saul_lealAuthor: Saul Leal
Vice-Chancellor Postdoctoral Fellow, Institute for International and Comparative Law in Africa (ICLA)

Leopold Sedar Senghor said: emotion is African.[1] This emotion has been channeled to constitutions. Happiness is a core value in many African constitutions. It was explicitly mentioned in Liberia, Namibia, Ghana, Nigeria, Swaziland, and Egypt.

Article 1 of the Constitution of Liberia, 1986, proclaims that all free governments are instituted by the people’s authority, for their benefit, and they have the right to alter and reform it when their safety and ‘happiness’ require it.[2] The preamble of the Egyptian Constitution, 2014, cites ‘a place of common happiness for its people’.   The Namibian Constitution, 1990, assures the right ‘to the pursuit of happiness’. In this regard, Frederick Fourie defends the preamble of the Namibian Constitution, explaining that it is coloured by the struggle against colonialism and racism; that it is built around the denial of the ‘right of the individual life, liberty and the pursuit of happiness’ by colonialism, racism and apartheid.[3]

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The conviction of Hissène Habré by the Extraordinary African Chambers in the Senegalese Courts: Bringing justice in cases of serious human rights violations in Africa

Juan Pablo Perez-Leon-AcevedoAuthor: Juan Pablo Pérez-León-Acevedo
Vice-Chancellor Postdoctoral Fellow, Centre for Human Rights, Faculty of Law, University of Pretoria

Background

On 30 May 2016, the Extraordinary African Chambers in Senegal (EAC) found the former Chadian dictator Hissène Habré criminally responsible for crimes against humanity, war crimes and torture. The EAC condemned Hissène Habré to life in prison. The EAC indicated that the defence would have 15 days to appeal the conviction. Accordingly, the defence lawyers proceeded to appeal the conviction on 10 June 2016. During the trial that started on 20 July 2015 and ended on 11 February 2016, 96 witnesses, victims and experts participated, and 5600 transcript pages and over 56 exhibits were examined. The trial concerned crimes committed in Chad between 7 June 1982 and 1 December 1990, which corresponded to Habré’s rule. The EAC Trial Chamber convicted Habré, as a member of a joint criminal enterprise (involving, among others, directors of his political police aka the Direction de la documentation et de la sécurité (Documentation and Security Directorate (DSS)), of crimes against humanity of rape, sexual slavery, murder, summary execution, kidnapping followed by enforced disappearance, torture and inhumane acts committed against the Hadjerai and Zaghawa ethnic groups, the inhabitants of southern Chad and political opponents. As a member of a joint criminal enterprise, Habré was also convicted of torture. Additionally, the Chamber convicted Habré, under the modality of superior or command liability, of the war crimes of murder, torture, inhumane treatment and unlawful confinement committed against prisoners of war (international armed conflict), and of the war crimes of murder, torture and cruel treatment (non-international armed conflict). War crimes were examined, on the one hand, in the context of the non-international armed conflict between the Forces Armées Nationales du Tchad (National Armed Forces of Chad (FANT)) and the Gouvernment d’Union Nationale de Transition (Transitional Government of National Unity (GUNT)), and, on the other one, in the context of the international armed conflict between Libya, allied to the GUNT, and Chad supported by France and the United States. Nevertheless, the Chamber acquitted Habré of the war crime of unlawful transfer.

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The idea of an African passport and the freedom of movement of persons in the continent: Only wishful thinking?

cristiano_dorsiAuthor: Cristiano d’Orsi
Post-Doctoral Researcher and Lecturer, Centre for Human Rights, Faculty of Law, University of Pretoria (South Africa)

“Hail! United States of Africa-free!
Hail! Motherland most bright, divinely fair!
State in perfect sisterhood united,
Born of truth; mighty thou shalt ever be.”

This is the incipit of the poem Hail, United States of Africa, composed in 1924 by M.M. Garvey, a famous Pan-Africanist leader.

This poem is considered to have initiated the concept of United States of Africa (USAf), a federation, extensible to all the fifty-four sovereign states, on the African continent.

In 2002, at the launch of the African Union (AU), President T. Mbeki, its first chairman, proclaimed that: “By forming the Union, the peoples of our continent have made the unequivocal statement that Africa must unite! We as Africans have a common and a shared destiny!”[1]

After that occasion, the concept of USAf has been highlighted in a more concrete way by other African leaders, such as A.O. Konaré in 2006,[2] M. Gaddafi in 2009 –the first to mention the possibility to issue a unique passport for the entire continent-[3] and, more recently, by R. Mugabe.[4]

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