By Japheth Ogila
Published August 8, 2014
African Union (AU)â€™s proposed continental court to try war crimes, crimes against humanity and genocide could perpetuate impunity on the continent.
An AU Summit in Equatorial Guinea did not just agree to a protocol to set up an African Court of Justice and Human and Peoples’ Rights (African Court) in June 2014 but also granted serving African heads of state and â€˜senior government officialsâ€™ immunity from any trial.
Vincent Nmehielle, AUâ€™s Director of Legal Affairs told the media that the decision to create the continental court had been pegged on AUâ€™s right as a regional organisation to enact its own international laws.
An AU Summit had during the 50th Anniversary of Organisation of African Unity in Addis Ababa a month earlier accused the International Criminal Court (ICC) of being racist, imperialist and pursuing only African leaders. It wasnâ€™t lost on observers that AU had been campaigning for cases against Kenyaâ€™s President Uhuru Kenyatta and his deputy William Ruto at ICC to be terminated by prevailing upon the UN Security Council; only Botswana had objected to the campaign. The same AU had also been calling on the ICC to drop the genocide charges against Sudanâ€™s President Omar Al Bashir.
The quest by AU to withdraw African states from the ICC and to establish a regional court that would not prosecute sitting African heads of states has however been criticised by the civil society including former UN Secretary General Kofi Annan. Amnesty International has termed the AUâ€™s move as “a backward step in the fight against impunity and a betrayal of victims of serious violations of human rightsâ€.
Since its establishment in 2002, ICC has registered cases against 32 Africans on charges of perpetrating violence in their countries. The court has opened investigations of criminal cases in eight African countries.
Currently, ICC has ongoing cases against Kenyatta and Ruto of Kenya and his deputy William Ruto (crimes against humanity) and Al Bashir of Sudan (genocide). Former Ivorian leader Laurent Gbagbo and his Liberian counterpart Charles Taylor have been sentenced. Other cases involve Congo war perpetrators and elusive Joseph Kony of Uganda.
That Africans are being tried in the Netherlands is subject to their ratification of the treaty that created the ICC and their unwillingness to try their own people accused of serious crimes. Though Kenya was given time to constitute a local tribunal to try the perpetrators of the December 2007 post-election violence in the country, its Parliament voted to hand over the cases now facing Kenyatta and Ruto and radio presenter Joshua Sang to the ICC. Gbagbo and Taylor were handed over to the ICC by their own respective countries.
AU may be engaging in double standards because as they appear to push for the arrest of Joseph Kony and go soft on Jean-Pierre Bembaâ€™s arrest, they appear to be protecting people like Kenyatta, Ruto and Bashir just because they are in positions of power.
The constitution of an African court would not do much to bring justice to Africa given AUâ€™s ineffectiveness in managing violence on the continent: AU failed to stop the 1994 genocide in Rwanda; hasnâ€™t stopped mass rape and killing in Congo-Kinshasa; didnâ€™t stop civil war in Mali, Ivory Coast and South Sudan; hasnâ€™t stopped ongoing ethnic and religious cleansing in Central African Republic or even the lawlessness in Somalia and Egypt, among other atrocities in Africa.
For the AU body to proclaim that the African court would bring justice with the immunity granted to its leaders is laughable. Does it mean that this court will only try civilians or guerrilla warlords?
While many African countries have a problem with corruption, tribalism and abuse of power that some leaders can actually take advantage of to cling to power if only to avert possible trials, other countries have judicial systems in which there is no public confidence. The proposed continental court may not win public trust as the AU which forms it is viewed as only shielding politicians from prosecution.