Africa: Civil Societies Want New AU Boss to Fight Impunity

By George Okore

JOHANNESBURG--A group of civil society and international organizations operating in Africa have put several demands to Africa Union Commission (AUC) President Dr Nkosazana Dlamini-Zuma, urging her administration to urgently end impunity for international crimes committed in the continent.

Through Jemima Njeri Kariri of South Africa based International Crime in Africa Programme (ICAP), they argue that July’s election of the  new AU commission chair offered  important opportunities to push for  better relationship between AU and ICC in supporting domestic prosecutions to combat impunity. “We believe that your role as AU Commission Chairperson provides important new opportunities for the AU to renew focus on ensuring redress for victims of serious crimes committed in violation of international law as an essential component of AU’s contribution to peace and security on the continent,” she argues.

In mass support for justice for the worst crimes in Africa, the group notes that several African countries have already contributed greatly to ensuring accountability for atrocities. These include the work of International Criminal Tribunal for Rwanda, Special Court for Sierra Leone, wide African membership in the International Criminal Court (ICC), and recent progress in the case of Hissène Habré.

However, Miss Njeri argues that in recent years the relationship between ICC and AU has become strained. Some AU and member state representatives have maintained a stance that ICC is unfairly targeting Africa, and AU decisions have called for African states not to cooperate in surrender of Sudanese President Omar al-Bashir, who is sought by ICC on charges of alleged crimes committed in Darfur, and former Libyan President Muammar Ghaddafi, who was an ICC suspect prior to his death.

The groups offer several observations and recommendations, which help to promote justice for the gravest violations of human rights. On ICC’s current investigations are entirely in Africa, the groups say  majority of the court’s investigations came from a request by the country where the crimes were committed (Uganda, Democratic Republic of Congo, Central African Republic, and Côte d’Ivoire). Two other investigations, Darfur and Libya, came about as a result of UN Security Council referral. Notably, all African members on the Security Council at the time of these referrals voted in favor of them.

The ICC prosecutor has in fact acted on his own authority to open investigation without a request by the country where the crimes were committed in only one situation- Kenya. The groups stress the importance of AU support to promote domestic capacity to prosecute serious crimes committed in violation of international law. They note that ICC is a court of last resort and is not intended to be the primary forum for the investigation and prosecution of serious crimes in violation of international law.

The Rome Statute of the ICC envisages states themselves taking the lead in the investigation and prosecution of such crimes, consistent with what is known as the ICC’s complementarity regime and framework. The ICC’s intervention is limited to situations in which countries are either unable or unwilling to prosecute those suspected of criminal responsibility. Yet, it remains the reality that far too few countries—including those in Africa—have the laws and capacity to prosecute serious crimes committed in violation of international law. Some African states have incorporated genocide, war crimes, crimes against humanity, principles of command responsibility, and cooperation with the ICC into their domestic law.

Mauritius adopted such legislation in 2012, and other countries—including Burkina Faso, Central African Republic, Kenya, Senegal, South Africa and Uganda—previously enacted such laws. However, the overall number of countries in the region with comprehensive legislation to prosecute these crimes remains under 10. Furthermore, many of the enacted legislations have flaws that could prevent the authorities from investigating or prosecuting the crimes in accordance with international law.

They also urge AU to assist to assist states in enhancing their domestic technical and legislative capacity to dispense justice. This can be done by encourage AU member states to strengthen their criminal justice systems to address serious crimes committed in violation of international law. This will not only address AU concerns about justice efforts rendered outside the continent, but enable Africa to best ensure victims have access to redress. Furthermore, they say if national courts can ensure justice for crimes committed in their countries, public confidence in and respect for the rule of law in the affected countries and sub-regions will improve.

They argue that due to strained relations between AU and ICC, increased communication would play a critical, positive role. Both institutions are complex and have nuanced mandates. More frequent information exchange could help to clarify misconceptions and promote greater understanding of the institutions’ respective roles. They support earlier plans by ICC to establish an AU-ICC Liaison Office in Addis Ababa, similar to existing ICC liaison office at the UN.