by Afam Ikeakanam
The already severely strained relationship between the International Criminal Court (ICC) and Africa has worsened as The Gambia announced its withdrawal from the Court. The small West African nation joins South Africa and Burundi who have signified their intentions to withdraw from the ICC. It seems as if the log which had hitherto blocked the eyes of African states is gradually falling off. The Gambia, just like South Africa and Burundi, is fed up with the ICC’s Western bias. To this end, it had no choice but to rechristen the ICC as “International Caucasian Court” due to the Court’s perceived dedication to the prosecution and humiliation of people of colour, especially Africans.
The ICC was established by the Rome Statute for the purpose of trying the most serious crimes of international concerns which are genocide, crimes against humanity, war crimes and acts of aggression. Africa’s antagonistic relationship with the ICC had not been the case from the outset. With the horrors of the Rwandan genocide in mind, Africa was very instrumental to the establishment of the ICC. On February 12, 1999, Senegal was the first state to ratify the Rome Statute. Also, by Congo’s ratification of the Statute on April 11, 2001, the treaty entered into force. As at October 2016, out of the 124 countries that are state parties to the ICC, 34 are African, the highest compared to other continents. Despite the perceived longtime hostilities between the duo, the above shows that ICC has historically enjoyed Africa’s support.
The current turbulence in the relationship between the duo was sparked off by the ICC’s quest to arrest Omar Al-Bashir, the Sudanese President, in 2008. The controversy was further amplified by the ICC’s prosecution of Uhuru Kenyatta, the Kenyan President and his deputy, William Ruto. The repercussions of these actions still reverberate throughout the continent as it negates the principle of presidential immunity, which is the linchpin of African governance. Since then, the relationship between the duo has denigrated with the ICC being accused of channeling its resources to intimidate and humiliate Africans, while turning a blind eye to Western war crimes.
In the ICC’s 14-year existence, all but one of its investigations are based in Africa. One of the reasons for the establishment of the ICC was the need to have an independent criminal court free from politics. In reality, the reverse is the case. The ICC has failed to initiate investigations in some superpower states accused of international crimes. Are the crimes within the ICC’s jurisdiction only committed in Africa? The ICC, through its actions and inactions, has appeared to be a hegemonic tool of the Western powers. Despite these assertions, I believe we (Africa) are the craftsmen of our castigation. We have been humiliated by the ICC because of the failure of our leadership and systems.
Our judicial system is in a mess. The inability of our national courts to address the grave crimes that were committed on our shores led the governments of Congo, Uganda, the Central African Republic and Mali to refer their cases to the ICC. Do the so-called Western states refer criminal cases to the ICC? No! Our referrals show that we have failed to develop a dependable legal system capable of administering justice. Our judicial system is inherently corrupt. It is one in which justice is given to the highest bidder. The recent clampdown on alleged corrupt judges in Nigeria and the dismissal of judges in Ghana reveals the rot in the system. For many Africans, the ICC is their only hope and this should not be the case. Africans should have confidence in the integrity of its judiciary.
The African Union (AU) has not been helpful. It has stirred up disdain by African states for the ICC. The AU fails to understand that by instigating withdrawal from the ICC without having effective indigenous judicial mechanisms, we are shooting ourselves in the leg. If we all abandon the ICC, do we have any credible regional or continental judicial institution capable of prosecuting international crimes? No! We will end up at the brutish state we found ourselves in before the ICC’s emergence. The AU and other regional bodies have initiated the process of actualising Africa’s resistance to the ICC by clothing its proposed African Court of Justice and Human Rights (ACJHR) and the East African Court of Justice (EACJ) with the power to try international crimes. The question is: would these courts be equipped to handle these special crimes? Till date, the African Court on Human and People’s Rights (the predecessor of ACJHR) and the EACJ have been hamstrung by various constraints which have made them achieve little and this makes it doubtful if these courts can achieve their proposed lofty objectives.
To many, the ICC is a tool for justice in our continent which is characterised by chronic impunity. The recent happenings in Libya and Egypt and the number of sit-tight presidents reveal that we have megalomanic and kleptocratic leaders who use the government machinery for their self-serving purposes. Our track record of human rights abuses is alarming. The AU has also failed to issue a definite statement on the urgency to get the continent rid of immunity. It has also failed to mobilise its member states to protect the rule of law and promote the protection of human rights. No wonder it is referred to as a toothless bulldog.
There is the need to strengthen our feeble judicial system. Each African state must develop the capacity to effectively investigate and prosecute international crimes committed within its borders. We must improve our domestic legal systems so that justice would be delivered fairly and timely. The governments should also ensure absolute independence of the judiciary. The independence of ACJHR should be asserted from the outset. The judiciary, both at national and regional levels, should be comprised of qualified judges who would effectively carry out the mandates of the courts.
African states should reiterate their commitments to combating impunity and promoting a free democratic society which upholds the rule of law. Our leaders must be made to know that no one is above the law. They are amenable to the laws of the land, and when they are found guilty of contravention, they would face the wrath of the law. Governments at all levels must guarantee the fundamental rights of its subjects. We have been ridiculed enough. There should be an overhaul of our legal and judicial systems. As Barack Obama said, “Africa needs strong institutions and not strongmen.” Since we have decided to adopt African solutions for African problems, then we must do it the right way. When this is done, we can boldly tell the West and the ICC to rot in hell for all we care.
Op–ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija
Afam Ikeakanam is a final year Law student of the University of Ibadan and can be reached via [email protected].
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