AU's attack on the ICC ignores the suffering of women
Last year I had the pleasure of inviting Fatou Bensouda, the prosecutor at the International Criminal Court (ICC), to give the keynote address at a conference I was organising in my capacity as the head of a private foundation. She had just been elected to her position and used the opportunity to give a powerful speech that put gender-based crimes at the centre of her ICC agenda.
In that speech she argued: "Gender crimes are prominent in our prosecutions because they are prominent in the contexts being prosecuted. This only becomes remarkable against the backdrop of the prior and still prevalent norm of denying their existence, ignoring them, shaming their victims, or defining them in legally improvable ways.
"In other settings, it was as if there were a tacit agreement to look the other way while women and children were sexually abused – minimising, trivialising, denigrating and silencing the victims, destroying their credibility and further violating their dignity, so abusers could continue unimpeded.
"The body of the ICC's first cases, however, signals to the world that here, at least, this deal is off."
I have thought about these strong and brave words from the Gambian legal giant during the past few weeks as the drama over first Kenya's and then Africa's withdrawal from the ICC has unfolded.
Africans concerned about gender justice should not be distracted by the racialised talk that has dominated the recent discussions of the ICC. Lost in all the discussions about the "anti-African bias" of the ICC is the reality that the court and its fearless prosecutor are real champions in the fight against impunity related to sexual crimes.
Indeed, if the point of the just-ended sulkfest in Addis Ababa was to challenge stereotypes about Africa, it backfired entirely. The summit simply generated more negative press for a continent already buckling under the weight of bad perceptions.
In calling a special summit to complain about how a few powerful men who stand accused of being criminals are being antagonised by the court, African leaders played into pre-existing stereotypes about the continent. Their attitude fuels the notion that Africa is a conflict-ridden mess in which presidents are warlords hell-bent on remaining in power to protect themselves from prosecution.
In the real world, Africa comprises 54 countries, a very small number of which can be categorised as "situation countries" for crimes against humanity. Ghana, Botswana, Mozambique, South Africa, Namibia, Malawi, Tanzania … these are not countries that feature in the African horror show and yet they represent the vast majority of African Union member states.
The events of the past weekend demonstrate how far the AU is from being a values-based forum for debate. It remains a creaky dinosaur, operating under a cloak of dubious solidarity, one based on common complexion and colonial history.
Race and colonial history matter, of course, but, in a forum where this is already the basis of membership, surely values must increasingly be the defining point of debate.
If the weekend's summit had been a more serious gathering of member states – led by female ministers and the AU Commission's first female head, it might have felt compelled to demonstrate solidarity with women and girls in the Democratic Republic of Congo and in Kenya, where widespread sexual violence has been documented. They might have chosen to support Bensouda's efforts rather than undermining them.
If the leaders who gathered at the weekend to talk about the ICC were intent on justice, they would have focused their energies on solving some of the ICC's real problems.
So what are the problems that need urgent attention at the ICC?
The institution has a weak and underfunded witness protection programme, which poses a real threat to many of its cases. In addition, the court is often unable to provide much-needed material support to the families of victims. This means that, once trials begin in The Hague, families typically cannot afford to attend them.
And, of course, these challenges do not even begin to address the painfully slow pace of justice. If justice delayed is justice denied, and if justice must not only be done but also be seen to be done, then a distant court that moves at a glacial rate does justice to no one.
If the AU is serious about dispensing justice to war criminals and militia heads, then it will fast-track the long-mooted African Court of Justice. In theory, the regional court will be constituted by member states of the AU.
In the absence of funding for both the African Union Commission and the new African court, however, there are many questions to be asked about how independent such a court will be – either of Western influence (he who pays the piper plays the tune) or of African political influence.
The solution, of course, is to ensure that a strong ICC exists alongside strong regional courts – not just in Africa but also in Europe, Asia and Latin America. As Africa's threatened withdrawal from the ICC en masse demonstrates, regional blocs and their processes do not necessarily offer neutral ground when it comes to serious crimes: there will always be crimes so horrific that they require a global court to adjudicate them.
Many of these, unfortunately, will involve serious abuses of women. For them, support for the court is a no-brainer.
We are all tired of legal institutions that are in the business of "minimising, trivialising, denigrating and silencing the victims, destroying their credibility and further violating their dignity".
Shame on them for even trying.
?Sisonke Msimang is a writer and political commentator who works for Sonke Gender Justice.