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Angela Mudukuti

Imperfect as it is, it is the only judicial mechanism fighting for justice and defending the rights of African victims, writes Angela Mudukuti.

Sudanese President Omar al-Bashir has left the Republic of South Africa but his visit has had far-reaching consequences. Media reports indicate that the State intends to appeal the judgment handed down by the high court in Pretoria.

The court ruled that South Africa had an obligation to arrest and detain President Bashir during his visit to the 25th AU Summit in Sandton last month.

This case has reignited the anti-International Criminal Court (ICC) rhetoric, fuelled threats of withdrawal from the Rome Statute of the ICC and brought into focus the glaring deficiency that exists when one looks at African regional and sub-regional accountability mechanisms.

Statements from the cabinet meeting on June 25 indicate that the government seeks to reconsider its commitment to the ICC and possibly withdraw from the Rome Statute.

This is an ill-conceived and counterproductive suggestion.

The misplaced rhetoric accusing the ICC of racism is the argument that misinformed politicians like to throw around in their attempt to exploit the nation’s warranted sensitivity to racial discrimination and injustice.

The ICC is not without its flaws but its importance cannot be ignored.

It is the only permanent judicial body that is addressing the atrocious crimes committed on the African continent. There are eight situations that form the basis of the cases before the ICC today. Four of the eight – Uganda, Central African Republic, Democratic Republic of Congo and Mali – are self-referrals where autonomous independent, sovereign states have asked the ICC to exercise its jurisdiction in their territory.

Two of the eight are the cases of Sudan and Libya which were referred to the ICC by the UN Security Council. The Kenyan example is the only pure manifestation of the prosecutor initiating an investigation into a state party. Even in that instance, the Kenyan government was given ample time to take steps to ensure accountability for the crimes committed during the 2007/8 post-election violence. Following its inability to do so, the ICC intervened. The ICC remains as a court of last resort, intervening only when states are unwilling or unable to address crimes committed.

The ICC is also involved in Cote d’Ivoire but that is similar to a self-referral because the country recognised the jurisdiction of the court in 2010.

It is evident that Africans are making use of the court they helped create.

More importantly, Africa has little to offer when we look at existing judicial mechanisms. For example, the Southern African Development Community (SADC) Tribunal. Established in 1992 to promote and protect human rights, democracy and the rule of law, it ceased to function in 2010 after handing down a controversial judgment. Its revival has been initiated under the new 2014 protocol.

The problem with new protocol is that it will allow the Tribunal to hear only interstate disputes. Devoid of its previous ability to hear the grievances of individuals, this court will mean little to the average citizen.

President Jacob Zuma is one of the heads of state who signed this new protocol, effectively supporting an institution that will be unable to help individual complainants. Why is the head of state of a leading constitutional democracy built on the rule of law, supporting sub-regional mechanisms that deny individual access to justice? Could it be the same reason that the same head of state and his government agencies allow the likes of President Bashir to escape arrest and prosecution?

Thankfully, the new SADC protocol does not have the requisite signatures and ratifications to come into force.

Moving to the next tier – the African Court on Human and Peoples’ Rights. A continental court established by African countries, mandated to ensure the protection of human rights in Africa.

A court that is not vested with criminal jurisdiction and is thus also severely limited with regard to the kind of relief it can provide to African people. In a politically, heavy-handed bid to remedy the situation, the AU, in June last year at the 23rd AU Summit, adopted an amendment to the African Court Protocol which would see an African Court vested with criminal jurisdiction providing immunity for sitting heads of state and senior government officials, during their tenure in office.

Providing heads of state and senior government officials with immunity is problematic as we have seen that many African leaders remain in power for more than 25 years. During that time, witnesses die, memories fade and evidence disappears.

This immunity may also be reason for leaders to refuse to step down even after their constitutionally mandated terms of office have expired.

How is the proposed African Court with criminal jurisdiction going to help the victims of heinous crimes if its leaders and senior officials are immune from prosecution while in office? History has shown that crimes against humanity, war crimes and genocide are often committed by state-controlled entities under orders from the powers that be.

The case against Bashir is a classic example. He has been in power since 1989 and declared himself president in 1993; the conflict in Darfur rages on and crimes are being perpetrated with impunity.

In a sense we can foretell how things would play out if an African Court with criminal jurisdiction came into existence. It is likely to be as it is today with heads of state committing crimes with impunity.

However, the requisite ratifications are still outstanding and it is uncertain if an African Court with criminal jurisdiction will ever come into existence.

Where does that leave African victims of crimes against humanity, genocide and war crimes?

The only judicial mechanism fighting for justice and defending the rights of African victims is the ICC.

Imperfect as it is, it remains the only mechanism championing this cause.

While I am the first to admit that the ICC should diversify the geography of its docket, one needs to fully appreciate that the ICC has jurisdictional limits. The classic “What about Bush and Blair?” question is tantamount to saying that just because we cannot go after certain criminals, we must ignore all criminals.

Indeed, we all hope that the international criminal justice net will catch all suspected perpetrators and the ICC should be challenged constructively on this issue, but threatening to withdraw from the only institution that is striving to provide justice for African victims is unwise.

African states were at the forefront of the creation of the ICC. Without the African votes, the ICC would not exist today. African states remain the biggest regional bloc of signatories to the Rome Statute and remain the backbone of the ICC. African states like South Africa should rather be critically engaging with the ICC as opposed to threatening to withdraw from it.

* Angela Mudukuti is the International Criminal Justice lawyer at the Southern Africa Litigation Centre.

** The views expressed here are not necessarily those of Independent Media.

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