Institute for War & Peace Reporting
African Leaders to Discuss Regional War Crimes Court
BY WALTER MENYA, JANUARY 2013
African court powers to handle international-scale crimes come under scrutiny as sceptics question whether it could be independent and sustainable.
Ahead of an African Union summit in Addis Ababa this week, legal experts are urging caution over plans to expand the jurisdiction of the African Court on Human and Peoples' Rights to allow it to try individuals for mass crimes.
The proposal is likely to be on the agenda for the African Union meeting taking place on January 21-28.
Some experts see the idea of strengthening the African court as a reaction by the continent's political leaders against the role played by the International Criminal Court, ICC, in The Hague. Other observers, however, say any plan to deliver justice on African soil has to be worth pursuing.
Under the proposal, the African Court on Human and Peoples' Rights would adopt legislation allowing it to try cases of crimes against humanity, war crimes and genocide.
To date, such crimes have been addressed by the ICC and by two United Nations-backed tribunals, the International Criminal Tribunal for Rwanda, ICTR, which operates in Tanzania; and the Special Court for Sierra Leone, based in the country.
The ICC has launched investigations in Uganda, Kenya, Sudan, the Central African Republic, CAR, the Democratic Republic of Congo, DRC, Ivory Coast and most recently Mali. It has tried cases relating to DRC and CAR, and four Kenyans will go on trial in The Hague in April.
The African court's powers are currently limited to applying the African Charter on Human and Peoples' Rights, which came into effect in 1986. The court itself has only been in operation since 2006.
The proposal to use it for criminal cases was drafted in July 2012, by a team of legislators who included Kenyan justice minister Eugene Wamalwa. It came soon after the Council of Ministers of the East African Community adopted a resolution asking the ICC to transfer the cases against four Kenyans to the East African Court of Justice.
Kenya's Deputy Prime Minister Uhuru Kenyatta, member of parliament William Ruto, former public service chief, Francis Muthaura, and radio journalist Joshua arap Sang face charges of crimes against humanity for orchestrating the violence that engulfed Kenya following the 2007 presidential election.
Since their trials are due to get under way in The Hague in April, it is no longer feasible that these cases could be transferred to a regional court.
As Charles Kanjama, a member of the legislative committee of the Law Society of Kenya, explained, "A court will not act retrospectively to take over the Kenyan ICC cases given the stage these trials have reached."
POLITICS OF JUSTICE
Talk of a regional court places the African Union's own commitment to delivering justice under the spotlight. In the past, African leaders have displayed a tendency to protect one another.
In 2009, the African Union asked the United Nations Security Council to quash the ICC's charges against Sudanese president Omar al-Bashir on the grounds that they were inhibiting the peace process in Darfur. The African Union's impartiality was further questioned during the uprisings of 2011 which toppled Libyan leader Muammar Gaddafi, Tunisian president Zine El Abidine Ben Ali and Egypt's Hosni Mubarak.
"The African Union lacks a track record to stand up to bad leadership and the commission of international crimes," Dr Adams Oloo of the Institute of Development Studies at the University of Nairobi told IWPR. "The uprisings in the North African states, as well as the Ivory Coast crisis of April 2011, exposed this."
There are more practical issues to consider, too, notably how the expanded African court would handle international criminal cases given the financial and technical implications of doing so effectively.
Apollo Mboya, chief executive officer of the Law Society of Kenya, welcomes the idea of expanding the African court but says it would take serious planning to make it happen. As well as adequate funding, the court would need guarantees of independence, and its prosecutors would need to have the right to enter any African state freely to investigate human rights violations.
"In principle, there is nothing wrong with the expansion [of the court]. However, the standards required for it to function require a lot of resources, a burden which I am sceptical Africa is ready to bear," Mboya said.
Such a transnational institution would need powers to investigate, and also mechanisms to protect its witnesses.
"All these structures, as well as the relationship the court will have with African governments must be spelt out clearly. Otherwise, we are heading nowhere and the whole exercise will be in futility," added Mboya.
International commentators on justice issues have expressed scepticism about the idea. Stephen Lamony, an adviser at the Coalition for the International Criminal Court, a non-government organisation that backs the ICC's work, says lack of funding would be a major obstacle.
It cost an estimated 200 million US dollars to set up the Special Court for Sierra Leone in Freetown, for example.
"With the cost of a single international criminal trial estimated at nearly 20 million dollars - almost double the combined approved 2009 budgets of the African Union Commission and the African court - financing is a major issue," Lamony said in an opinion piece for the African Arguments website in December.
Koki Muli, a law lecturer at Kenya's South Eastern University College who was recently appointed as the country's permanent representative at the UN, fears that African states lack the capacity to expand the court's current remit.
"With the right crop of people and leaders, of course African structures and solutions to African problems are the best approach, but we must do it with adequate capacity and infrastructure," Muli said.
Others, however, believe the project will have long-term benefits, and that this should outweigh immediate concerns about cost.
"For me, anything African is welcome," said Justin Muturi, chairman of the Centre for Multi-Party Democracy in Kenya. "If we decide to have the court's jurisdiction expanded, so be it, because we already have the infrastructure in Arusha given that the International Criminal Tribunal for Rwanda is already in place, and Africa has in the last decade been the only region to register uninterrupted economic growth."
Gershom Otachi, who represented Kenya's former police commissioner, Mohammed Hussein Ali, at the ICC's confirmation of charges hearings in 2011, and has acted for defendants at the Rwandan tribunal in Arusha, agrees that the goal of delivering justice locally is worth pursuing.
"Africa may have its own unique weaknesses - mainly resources - but that should not be a basis to deny it the opportunity to try international crimes locally," Otachi said.
Pointing out that many African states have made progress in terms of democracy and transparent governance, he said, "The question of [judicial] independence is not a major one, because if you look across Africa, we are moving towards more open societies."
TWO COURTS, NOT ONE?
While some have seen the proposed African justice mechanism as a riposte to the "foreign" ICC, others believe the two could actually sit well together.
"The whole of Africa coming together to establish such a court is... logical," Charles Kanjama of the Kenyan Law Society said. "If the individual nations cannot prosecute, then the next stop should be at the continental level before seeking the ICC's help."
Granting criminal jurisdiction to the African court would be in tune with a doctrine called "positive complementarity" set out in the ICC's founding treaty, the Rome Statute. This envisages bolstering national judiciaries in countries where the ICC has opened investigations, so that the state in question can build up the expertise and capacity to allow it to try suspects itself in the future.
"Complementarity" currently refers to the judiciaries and laws of individual states rather than transnational structures, so it is unclear how the ICC could cooperate with a regional-level court.
However, some experts believe this could easily be changed.
"The [view] that the ICC cannot cooperate with regional courts is not cast in stone. The Rome Statute is itself a compromise among state parties, who can agree to amend it," Otachi said.
Walter Menya is a reporter for The Star Newspaper in Nairobi. This article was produced as part of a media development programme by IWPR and Wayamo Communication Foundation in partnership with The Star.