Reacting to the growing attitude of African leaders in using politics as an engine to flout judicial authoritiesPosted: 18 September, 2015
As a young person growing up in The Gambia, enjoying relatively peaceful personal development and knowing little or nothing about the Continent (i.e. Africa), I was optimistic of what the future holds for us. My optimism has somewhat changed after recently following some developments unfolding in the Continent. I became more skeptical when I listened to the African-born Chief Prosecutor of the International Criminal Court, Fatou Bensouda making exposition to the Darfur situation. She frustratingly advanced that:
“Innocent civilians continue to bear the brunt of insecurity and instability, in particular as a result of what appears to be an on-going government campaign to target them. The people alleged to be most responsible for these on-going atrocities are the same people against whom warrants of arrest have already been issued.”
These words made me more concerned that the political and legal atmosphere in Africa is becoming unsafe for human shelter. The friction between the two has become too chaotic and toxic for a peaceful and orderly coexistence. The breeze blowing to my observation is not only hostile to the citizens of the Continent but also to the legal frameworks and judicial institutions created for the implementation and protection of our rights.
Africa, the second most populous continent with the fastest growing population on the globe faces complex and integrated human security threats. From a broader perspective, human security is far more than the absence of violent conflict. It encompasses respect for human rights, good governance, access to education and health care and ensuring that each individual has opportunities and choices to fulfill his or her potential. In Africa, addressing these issues requires alleviating poverty, promoting economic growth, freedom from fear and access to a healthy natural environment as well as and preventing conflict. Characteristically, Africa is associated with war, poverty, genocide, diseases and grievous abuses of human rights, prolonged armed conflicts and rising terrorist activities. Conventionally, the African Union has adopted several instruments to deal with these peace and security threats. This article focuses on increased armed conflicts and terrorist activities on the continent.
Some reflections on the current Africa’s project on the establishment of African Court of Justice and Human Right (ACJHR)Posted: 29 June, 2015
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.
‘Statelessness is a profound violation of an individual’s human rights. It would be deeply unethical to perpetuate the pain it causes when solutions are so clearly within reach.’
– Antonio Guterres, United Nations High Commissioner for Refugees (UNHCR)
Statelessness as a legal problem has far reaching political and economic challenges which have attracted rising attention from scholars, human rights activists and international organisations in recent years. Officially, statelessness means a person who is not considered as a national by any State under the operation of its law. The UNHCR started collecting data on stateless persons in the world in 2006 and confirmed in 2011 that the number of stateless persons around the world is in excess of 10 million despite conceding that obtaining the actual statistics is difficult.
The most affected are regions that have suffered or are experiencing armed conflicts or economic migration. Large numbers of stateless population are largely due to policies and laws which discriminate against foreigners despite their deeper roots in the states concerned. For instance, more than 120 000 persons in Madagascar are stateless on the basis of discriminatory citizenship laws and administrative procedures. Moreover, about 170 000 Burundian refugees who fled their country in 1972 are recognised as stateless in Tanzania despite cogent attempts by international and local organisations to have the situation rectified.
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]
The globalisation of human rights and democratisation has gained significant momentum in the 21st Century. It has proved to be the linchpin of progressive and sustainable socio-economic and political development for other continental organisations such as European Union and Inter-American Organisation. It is unfortunate that the African Union (AU) has done little or nothing in the actualisation and application of these universal principles in its member states. There are plethora legal frameworks geared toward promoting and protecting human rights and democratisation in Africa. However, they have translated meaningless because their practical applications are neglected.
The establishment of the AU inter alia is anchored on the promotion and protection of human rights and democratisation in Africa. This is as a result of the inhuman and undemocratic experiences of the continent under the so-called colonial masters’ bad governance. In an attempt to correct the human rights catastrophes perpetrated by colonial institutions, the AU was created. Thus, the sole intent of the drafters of the Organisation’s legal framework and indeed the yearning and aspiration of the people of the continent was to create a continental institution to promote and protect human rights and democratisation which are essential for the development of Africa.
However, legally construing the AU Charter, it creates no legal binding obligation on state parties for promotion and protection of human rights and democratisation in Africa. Although, it requires member states to have due regard for human rights and democratisation as enshrined under international law; and also promulgated plethora continental laws aimed at mandating state parties to promote and protect these concepts.
On 13 October 2013, leaders of African states will meet in Addis Ababa, under the African Union (AU) banner), to consider a possible withdrawal from the Rome Statute creating the International Criminal Court (ICC). African leaders do not find favour with the ICC’s pursuit of Kenya’s “big men”- President Uhuru Kenyatta and Deputy President William Ruto. The AU draws links between the indictment of Kenyatta and Ruto with that of President Omar Al-Bashir of Sudan and Laurent Gbagbo of the Ivory Coast. Having drawn such links, the AU is of the view that the ICC is a western plot to finish-off African leaders. What is striking of the AU’s ICC analysis is the complete lack of consideration for the victims, 99.9% of whom are Africans. It seems as though grave crimes against humanity are of much less importance when a few “big men” stand accused. What seems to be of extreme importance in the minds of African leaders is that, once again, one of their kind is wanted for crimes against humanity.
African heads of states are rarely united on any issue relevant to development of the continent, such as a common currency, the free movement of people and products, military interventions in war torn regions, etc. However, when it comes to protecting the likes of Bashir and Kenyatta, the AU is zealously united – without regard to the victims of atrocities.
This article comes as result of the historical background on the status of immigrants in the western part of Tanzania where the expulsion of illegal immigrants is never stable (see a BBC report). The main reason leading to the expulsion of illegal immigrates is the fact that most immigrants are not aware of Tanzanian immigration. In turn, Tanzania reacts by deporting them back to various nations along the Great Lake States.
Illegal immigration in Tanzania may be legally assessed based on two perspectives. One, those immigrants who enter Tanzania without observing due processes and are then apprehended, detained and charged with breaching immigration laws, and two, those who are found to be residing with and married to Tanzanians without observing legal procedures.
Illegal immigrants, of whatever nature, as described above, are deserving of human rights as other Tanzanians. Thus, there is a great need for lawyers and non-governmental organisations to offer information and knowledge on issues relating to immigration, labour and citizenship so as to bring awareness amongst refugees of their rights.
On 15 March 2013 Chief Judge Merrick Garland of the United States (US) Court of Appeals Circuit in American Civil Liberties Union Foundation v Central Intelligence Agency (CIA) dismissed the CIA’s standard Glomar response to its expanded and clandestine programme to carry out targeted killings on suspected terrorist. Barely two months later, a High Court in Peshawar, Pakistan, held that drone strikes (and their continued use) “are a blatant violation of Basic Human Rights and are against the [United Nations] (UN) Charter, the UN General Assembly Resolution …and a violation of the sovereignty [of Pakistan]”. Whereas not fully specific on the human rights instruments violated, these judicial pronouncements point to an increasing dissatisfaction by the international community on the lack of a concise and regulated use of the “CIA’s angry birds”.
This note seeks to merely highlight possible violations of various rights including the right to life, right to fair trial as well as the right to privacy, which are all enshrined in the African Charter; and call upon the African Union (AU), through its various organs, to promote more transparency on the use of drones and foster the enactment of a continental regulatory framework to govern the use of Unmanned Aerial Vehicles by western nations on African soil.
The use of drones in African’s airspace has been on a steep rise. The latest documented incident was on 27 May 2013 when Al-Shabaab allegedly shot down a UAS Camcopter S-100 near the town of Buulo Mareer, southern Somalia. The London based Bureau of Investigative Journalism estimates that over 200 persons, mostly non-combatants, have been killed by drone strikes in Somalia since 2003. American drone support bases have been reportedly set up in Arba Minch (Ethiopia), Seychelles, Camp Lemonnier (Djibouti) and recently in Somali’s shell-crated international airport in Mogadishu. A 2012 study by Stanford Law School and New York University’s School of Law indicated that there were more civilians and innocent residents killed in the drone strikes than militants throughout the period of the drone program.