Zam­bia’s shin­ing ex­am­ple

The Star Early Edition - - OPINION & ANALYSIS -

More car­toons on­line at An­gela Mudukuti is an in­ter­na­tional crim­i­nal jus­tice lawyer

LAST week, Zam­bians voted on whether they would like to re­main within the Rome Statute sys­tem or not. A ma­jor­ity (93.3%) of those asked voted in favour of re­main­ing with the In­ter­na­tional Crim­i­nal Court. Given the ten­sion be­tween the AU and the ICC and the per­sis­tent threats of with­drawal, the sig­nif­i­cance of the re­sults and the fact that such a process took place can­not be over­stated. It is not just a sim­ple vote, it is ac­tu­ally about jus­tice, trans­parency and democ­racy – three essen­tial el­e­ments cur­rently in short sup­ply in many African coun­tries.

The Zam­bian Min­istry of Jus­tice spent a re­ported 2 mil­lion Zam­bian kwacha to con­duct this vote. The min­is­ter re­port­edly in­di­cated that it was a nec­es­sary step in prepa­ra­tion for the next AU sum­mit in June.

The AU and the ICC have been at odds since the in­dict­ment of Su­danese Pres­i­dent Omar al Bashir in 2009. Of the view that heads of state should be im­mune from pros­e­cu­tion dur­ing their time in of­fice, the AU has en­cour­aged its mem­bers not to com­ply with the ICC’s re­quest for the ar­rest and sur­ren­der of Bashir.

Since then, the re­la­tion­ship be­tween the two en­ti­ties has steadily de­te­ri­o­rated.

At al­most ev­ery AU sum­mit in the re­cent past, the AU has called for its mem­bers to aban­don the Rome Statute.

The Jan­uary sum­mit also in­cluded a “with­drawal strat­egy” as per its ti­tle. How­ever, the con­tents, in­ter­est­ingly enough, pro­vided op­tions for fur­ther en­gage­ment with the ICC.

Be that as it may, for as long as the ICC con­tin­ues to ex­er­cise its man­date with­out fear or favour, in­clud­ing fol­low­ing ev­i­dence that leads to the in­dict­ment of se­nior govern­ment of­fi­cials and heads of state, the AU will con­tinue to ag­i­tate for with­drawal.

The AU’s griev­ances with the ICC ex­tend to var­i­ous other is­sues, in­clud­ing the AU’s be­lief that the ICC is tar­get­ing African lead­ers while it leaves pow­er­ful Western na­tions to wage war and en­gage in crimes against hu­man­ity.

The AU also has a prob­lem with the un­fet­tered pow­ers of the per­ma­nent UN Se­cu­rity Coun­cil (UNSC) mem­bers when it comes to the ICC.

The con­tro­ver­sial UNSC re­fer­ral is a ma­jor bone of con­tention. It al­lows the UNSC to re­fer sit­u­a­tions to the ICC.

The per­ma­nent five mem­bers have the power to veto re­fer­rals, yet three of those five are not mem­bers of the Rome Statute. Granted, some of the AU’s con­cerns are valid, for ex­am­ple, the UNSC re­fer­ral is highly prob­lem­atic, but the AU should be en­cour­aged to con­struc­tively en­gage in­stead of try­ing to or­ches­trate a mass African with­drawal.

It is too soon for­got­ten that African states were in­te­gral to the cre­ation of the ICC. African states also fought to pro­tect the in­de­pen­dence of the pros­e­cu­tor dur­ing the ne­go­ti­a­tions that even­tu­ally pro­vided the fi­nal text of the Rome Statute. Today the African bloc is still the largest re­gional bloc of sig­na­to­ries to the Rome Statute, which could pos­i­tively in­flu­ence and change the ICC from within. The AU seems to over­look this un­tapped po­ten­tial.

The AU has no­ble ob­jec­tives in­clud­ing en­sur­ing that African in­sti­tu­tions can grap­ple with African prob­lems. How­ever, dis­man­tling the only per­ma­nent in­ter­na­tional jus­tice mechanism with­out es­tab­lish­ing a vi­able al­ter­na­tive is toy­ing with ac­cess to jus­tice and could re­sult in the pro­mo­tion of im­punity.

The ICC was de­signed as a court of last re­sort, mean­ing it can in­ter­vene only when a mem­ber state is un­will­ing or un­able to tackle crimes com­mit­ted. Thus, build­ing strong do­mes­tic ca­pac­ity to in­ves­ti­gate and pros­e­cute in­ter­na­tional crimes in Africa is vi­tal and com­ple­men­tary to the vi­sion of the ICC. Build­ing re­gional courts that have crim­i­nal ju­ris­dic­tion is also an im­por­tant en­deav­our, but it is far from be­ing a vi­able op­tion at the mo­ment.

In light of this, the AU, and the African lead­ers them­selves, should be en­cour­aged to be con­struc­tive in their deal­ings with the ICC, in­stead of en­gag­ing in po­lit­i­cal strate­gies that will only harm the av­er­age cit­i­zen when all is said and done. It is the cit­i­zens, not the lead­ers in power, who will suf­fer if a jus­tice vac­uum is cre­ated by leav­ing the ICC, hence why the con­sul­ta­tive process em­barked on by Zam­bia is cru­cial.

The Zam­bian vote nat­u­rally re­minds one of South Africa’s ill-con­ceived and hasty at­tempt to with­draw from the ICC with­out fol­low­ing the con­sti­tu­tion and proper par­lia­men­tary pro­ce­dures, in­clud­ing pub­lic con­sul­ta­tion. The com­par­i­son is dis­turb­ing and un­com­fort­able when one con­sid­ers that solid con­sti­tu­tional democ­racy forms the back­bone of the na­tion and the state of gov­er­nance today.

Hav­ing re­cently com­mem­o­rated the 54th Africa Day, it is time African lead­ers pri­ori­tise the needs of the peo­ple in­stead of fo­cus­ing on shield­ing them­selves from pros­e­cu­tion. Jus­tice, trans­parency and democ­racy in Africa are un­der threat, but the ex­am­ple set in Zam­bia pro­vides hope.

TIME TO CHOOSE: Zam­bians wait to cast their votes at a polling sta­tion in Lusaka in this file pic­ture. The ma­jor­ity in the na­tion have voted in favour of re­main­ing with the ICC.

Newspapers in English

Newspapers from South Africa

© PressReader. All rights reserved.