Leaders push for 'local' solutions to prevent the judicial system from preying on the weak. "All the statistics show only Africa is targeted."
Just behind Senegal’s Palais de Justice that houses the Supreme Court, and close to the Dakar seafront, a run-down red-tiled roof indicates the city’s Rebeuss prison. It is here that the West African country’s most famous son, former “superminister” Karim Wade, has been held for over a year.
His trial for corruption during the reign of his father, former president Abdoulaye Wade, will start on July 31, according to a statement by the government. In an interview with the Mail & Guardian last week, Justice Minister Sidiki Kaba said it would be a fair trial and there would be justice.
Senegal has a solid, independent justice system that can try even the most sensitive, high-profile cases, he believes.
“Senegal has a long history of supporting the fight against impunity,” he says.
Yet Kaba is reluctant to talk about the case, which has major political implications. He would much rather talk about the other high-profile case that has put the country’s judiciary in the spotlight for almost a decade.
Further along the overcrowded peninsula that is Dakar, the 72-year-old former dictator of Chad, Hissène Habré, is also behind bars, awaiting trial on charges of crimes against humanity, torture and war crimes. He is accused of killing and torturing thousands of people during his rule in Chad in the 1980s.
“The Habré case shows that Africa is not for impunity,” says Kaba.
Battling to justify candidature
The fact that Habré will be tried in Dakar by Senegalese judges attached to a special African Union (AU) court – a unique case in Africa – will probably count in Kaba’s favour when he stands for election as president of the assembly of state parties of the International Criminal Court (ICC) later this year.
Kaba is a well-known human rights lawyer and former head of the International Federation of Human Rights, but still has to battle to justify his candidature for the election in December amid huge acrimony around the court and its role in Africa.
Kaba says he will work on “the principle of complementarity” of the court, to make sure local courts are strengthened to insulate them from political pressure.
“In the end the ICC will only be necessary as an ultimate recourse,” he says.
The main problem is found in the “explosive relationship” between politics and justice, and is also true for international justice, he says.
The internal divisions in Africa over the court were clear at a conference on international justice hosted in Senegal last week by the Dakar-based Council for the Development of Social Science Research in Africa. The conference was titled International Justice, Reconciliation and Peace in Africa: the ICC and beyond. At the three-day conference, lawyers, legal experts and human rights activists were divided over whether Africans should continue supporting the court.
Some of the participants said Africa should find its own “indigenous” justice solutions and make sure criminals are tried either in their home countries or through regional African courts.
Others said that African countries, especially those experiencing conflict, do not have the means to try perpetrators of war crimes and, besides, justice systems in many African countries are not independent.
African heads of state and the AU have been at loggerheads with the ICC since the indictment of Sudan’s president, Omar al-Bashir, in 2009 for war crimes and crimes against humanity.
The acrimony deepened following the charges against Kenya’s president, Uhuru Kenyatta, and his deputy, William Ruto, for their role in the 2008 postelection violence in Kenya.
So far, all the cases before the court have been from Africa, yet a number of important countries, including the United States, China and Russia, are still not members of the ICC.
“It’s as if Africans were tricked into signing up for the ICC,” says Ebrima Sall, executive secretary of the research development council.
“All the statistics show only Africa is targeted,” said Sall. “I would much rather see the strengthening of local African solutions,” he said.
Tim Murithi, programme director at the Institute for Justice and Reconciliation in Cape Town, agrees and says the court reflects the un-equal international system.
“International justice was a visionary, noble idea, but the problem comes in when some powers can exclude themselves. Then it is no longer international.”
Ibrahima Kane, director at the Open Society Initiative for East Africa, said Africans could not understand why all the cases before the court are Africa-based.
“In 2002, the ICC wanted to investigate in Bosnia, for example, but stopped because UN forces could have been involved. The impression is that the ICC can only investigate where people are weak.”
The prosecutor also refused to investigate in Iraq and has never wanted to be involved in the Middle East crisis, he said.
Kane says the fact that only former Côte d’Ivoire president Laurent Gbagbo and one of his henchmen, former student leader Charles Blé Goudé, are being tried by the court in The Hague, following postelection violence in the country in 2011, is seen by many as “victor’s justice”. No one in the camp of President Alassane Ouattara has been charged, even though the court says investigations are ongoing.
In the case of the Democratic Republic of the Congo, up to six million people have been killed in a succession of conflicts, but only a handful of warlords and the former vice-president, Jean-Pierre Bemba, have been brought before the court.
Kaba admits that the prosecutor should intensify its investigations in other parts of the world to dispel the perception that only African countries are targeted.
So far, most of the African cases have been brought before the court by African states or through a United Nations resolution, as for example in Libya in 2011.
“I will work for the universality of the court,” said Kaba.
Amady Ba, the head of international co-operation in the office of the ICC prosecutor, says it is unfair to say the court is targeting Africa.
“We are a court; we are not political,” said Ba.
He added that Africa is confronted by such huge crimes that something simply has to put a stop to impunity.
“I didn’t leave my country to go to work at the ICC to target Africa,” he said.
Much time was spent at the conference looking at possible alternatives to the court. Could the Habré solution be repeated elsewhere? Could one imagine Robert Mugabe, for example, being tried for the 1980s massacres by an African court set up outside Zimbabwe?
Academics and lawyers are sceptical of the African solutions on the table.
The Habré case, which is expected to be heard in April next year, has taken almost 15 years since he was first charged while living in exile in Senegal in February 2000.
Plans are also under way to expand the jurisdiction of the African Court on Human and People’s Rights, currently based in Arusha, Tanzania.
But the AU, at its summit in Malabo, Equatorial Guinea last month, passed a resolution that ensures immunity for heads of state against this court.
El Hadj Guissé, a judge at the human and people’s rights court, says he is disappointed by this move by the AU leaders, because it will dilute the work of the planned new African Court.
“No one should be able to have immunity against the serious crimes stated in the Rome Statute such as genocide, war crimes and crimes against humanity,” he says.
The one consensus at the Senegal conference was that the strengthening of the local justice systems in individual African countries should be a priority. This would ensure that perpetrators, even those responsible for the most hideous crimes such as genocide and crimes against humanity, can be tried at home.
Liesl Louw-Vaudran was invited to Senegal by the Council for the Development of Social Science Research in Africa