For­mer Cha­dian despot’s trial will show whether an African-led in­ter­na­tional crim­i­nal court can fight im­punity on the con­ti­nent, write and

CityPress - - Voices -

he re­cent court ap­pear­ance of for­mer Cha­dian despot His­sène Habré is a land­mark for in­ter­na­tional crim­i­nal jus­tice on the con­ti­nent. Habré stands ac­cused of the mur­der and tor­ture of more than 40 000 vic­tims dur­ing his eight-year rule be­tween 1982 and 1990.

Sur­vivors of his no­to­ri­ous un­der­ground prison, known as the Piscine (“pool” in French), have re­counted sto­ries of in­tense bru­tal­ity. These in­clude ac­counts of tor­ture by elec­tric shock, cig­a­rette burns, near­as­phyx­i­a­tion and be­ing held in rooms with de­com­pos­ing bod­ies while sus­pended by the hands or feet.

The Ex­tra­or­di­nary African Cham­bers in the Sene­galese Courts (EAC) was es­tab­lished at the re­quest of the African Union (AU) with a spe­cial man­date to try Habré. It con­cludes more than two decades of vic­tims’ ef­forts to se­cure a suit­able mech­a­nism for his pros­e­cu­tion, and will be the first time an African state has tried another state’s for­mer leader. Four pre­vi­ous ex­tra­di­tion re­quests from Bel­gium and the In­ter­na­tional Court of Jus­tice (ICJ) to Sene­gal were de­nied dur­ing this pe­riod, while Habré lived a life of lux­ury un­der pro­vi­sional house ar­rest in Dakar.

The trial will serve as a test case to see whether an African-led in­ter­na­tional crim­i­nal court can fight im­punity on the con­ti­nent – a ma­jor con­cern among or­di­nary cit­i­zens.

A re­cent sur­vey by Afro­barom­e­ter in­di­cates that per­cep­tions of im­punity are wide­spread on the con­ti­nent.

On av­er­age, 56% of cit­i­zens in 21 coun­tries say of­fi­cials who com­mit crimes “al­ways” or “of­ten” go un­pun­ished. This ranges from 34% in Namibia to 76% in Kenya.

Pre­vi­ous re­gional at­tempts to ad­dress gross hu­man rights vi­o­la­tions have been un­able to over­come the po­lit­i­cal chal­lenges that in­ter­na­tion­alised courts must nav­i­gate. The South­ern African De­vel­op­ment Com­mu­nity Tri­bunal is a no­table ex­am­ple of this fail­ure: it was dis­solved shortly af­ter a rul­ing against the gov­ern­ment of Zim­babwe in one of its first cases, Mike Camp­bell (Pvt) Ltd and Oth­ers vs Re­pub­lic of Zim­babwe (2008).

Habré’s ap­pear­ance was marked by his re­fusal to co­op­er­ate fully with the court and his im­pli­ca­tion that the EAC was merely a neo­colo­nial kan­ga­roo court.

This al­le­ga­tion echoes the on­go­ing de­bate re­gard­ing the role of the In­ter­na­tional Crim­i­nal Court (ICC) in Africa. The ICC is ac­cused of bias against African states due to the fact that all eight cases in which it is cur­rently in­ter­ven­ing are African.

The AU has gone so far as to call on its mem­ber states to take a uni­fied po­si­tion against the ICC’s ju­ris­dic­tion to pros­e­cute sit­ting pres­i­dents and se­nior mem­bers of gov­ern­ment in power, ar­gu­ing that the court un­fairly tar­gets African in­cum­bents while over­look­ing vi­o­la­tions out­side of the con­ti­nent.

Any in­ter­na­tional crim­i­nal jus­tice court must nav­i­gate a po­lit­i­cal land­scape that favours stronger na­tions. The ICC, for ex­am­ple, does not have the ju­ris­dic­tion to open cases against states that are not party to the Rome Statute, un­less the cases are re­ferred to it by the UN Se­cu­rity Coun­cil.

The court could, in the­ory, in­ves­ti­gate Chi­nese abuses in Ti­bet or Amer­i­can ex­cesses in Iraq, but it would re­quire the ac­qui­es­cence of the Se­cu­rity Coun­cil, where both coun­tries hold veto power.

How­ever, this does not mean that its cur­rent in­ves­ti­ga­tions in African coun­tries are not with­out ba­sis.

In­ter­est­ingly, in Kenya, where the ICC has pur­sued high-pro­file cases against sev­eral prom­i­nent politi­cians, in­clud­ing Pres­i­dent Uhuru Keny­atta, a ma­jor­ity of cit­i­zens have sup­ported the in­ter­ven­tion since sur­vey­ing on this is­sue be­gan in 2010. Late last year, six in 10 Kenyans agreed the cases were an im­por­tant tool in fight­ing im­punity in the coun­try, and only 35% be­lieved the court was bi­ased against Kenya and other African coun­tries. This raises the ques­tion of how at­tuned African gov­ern­ments are to their cit­i­zens’ at­ti­tudes on mat­ters of im­ple­ment­ing in­ter­na­tional crim­i­nal jus­tice.

It also il­lus­trates a dis­junc­ture be­tween the con­cerns of or­di­nary cit­i­zens and cur­rent de­bates on the ICC’s role in Africa – which tend to be held at an elite level. Calls for African mem­ber states to with­draw from the ICC have of­ten been sup­ported by the ar­gu­ment that an AU-led ju­di­cial body would be bet­ter placed to fill the role of “court of last re­sort” on the con­ti­nent. This would pro­vide a cru­cial op­por­tu­nity for the or­gan­i­sa­tion to play a larger role in its mem­ber states; only a mi­nor­ity of cit­i­zens in 17 out of 21 coun­tries sur­veyed re­ported that the AU helped their coun­try “a lot” or “some­what”. If the AU, gov­ern­ments and civil so­ci­ety are to be rep­re­sen­ta­tive of or­di­nary cit­i­zens’ in­ter­ests, rather than elites, how­ever, the de­bate on in­ter­na­tional crim­i­nal jus­tice needs to turn its fo­cus away from ide­o­log­i­cal and geopo­lit­i­cal dis­putes to­wards the vic­tims of gross hu­man rights vi­o­la­tions. The AU’s in­sis­tence on ex­empt­ing in­cum­bents from pros­e­cu­tion would be a ma­jor ob­sta­cle to end­ing im­punity among top of­fi­cials.

Habré has lit­tle po­lit­i­cal sup­port on the con­ti­nent and has not held of­fice since 1990, yet vic­tims have had to wait 25 years to see him take the stand. If vic­tims of tor­ture and other gross vi­o­la­tions of hu­man rights are to see any jus­tice in their life­times, the AU will need to re­verse its po­si­tion on the pros­e­cu­tion of sit­ting pres­i­dents. Fail­ure to do so gives lead­ers who rule by force a rea­son to cling to power to es­cape pros­e­cu­tion and, as Arch­bishop Emer­i­tus Desmond Tutu has said, “a li­cence to kill, maim and op­press their own peo­ple with­out con­se­quence”. Lekalake is Afro­barom­e­ter as­sis­tant pro­ject man­ager at

the In­sti­tute for Jus­tice and Rec­on­cil­i­a­tion and Buchanan-Clarke is a master’s de­gree can­di­date at the Univer­sity of KwaZu­luNatal and a con­sul­tant at the in­sti­tute. For fur­ther read­ing on African public opin­ion on the ICC and re­lated is­sues, see the full pa­per pub­lished by

Afro­barom­e­ter.org at afro­barom­e­ter.org/publi­ca­tions/ pp23-sup­port-in­ter­na­tional-crim­i­nal-court-africa-ev­i­dence-kenya


WILL JUS­TICE BE SERVED? Ousted Cha­dian leader His­sène Habré re­act­ing as he is es­corted to stand trial at the Palais de Jus­tice in Dakar, Sene­gal, in

July for crimes against hu­man­ity, war crimes and tor­ture al­legedly per­pe­trated dur­ing his rule be­tween 1982 and 1990

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