By Noah Kiplagat
The red button has been pressed, Africa is moving out of the International Criminal Court, no doubt about that. But what is the way forward? Clearly, Africa is headed into the unknown and is not safe without the ICC. It is no secret that the ICC has its fair share of shortcomings, a lot of criticism has been raised with some going into the root cause of the establishment of the court. That, however, is a focus for another discourse, for now, let us analyse the alternatives.
The Rome Statute establishing the International Criminal Court came with a concept to facilitate an alternative to the court’s existence; among legal scholars and practitioners this concept has attracted the reference ‘the doctrine of complementarity’. Enshrined under article 17 of the Rome Statute, this concept places the ICC as a court of last resort by allowing prosecution of international crimes in domestic courts in that the ICC could only assume jurisdiction if and only if a member state is unwilling or unable to prosecute international crimes.Sadly enough this concept has not been utilized and many African countries are still looking for an alternative, better still, an African alternative.
The African Union has fronted such an African alternative, the African Court on Human and Peoples Rights. Established by virtue of Article 1 of the Protocol to the African Charter on Human and Peoples’ Right, the court commenced business in 2004 and has been occasioned to host the International Criminal Tribunal for Rwanda(ICTR). But is it good enough an alternative to ICC?
To facilitate access to justice though ineffective, the declaration that establishes the African Court on Human and Peoples Rights allows the court to hear complaints from individuals, Non-Governmental Organisations in addition to the African Union itself. The court has 30 countries as member states with a paltry 8 countries having ratified the declaration establishing it. This in itself is an indication that the court is short of legitimacy in great parts of the African Continent and as a result, only a small fraction of the approximately 50 complaints received by the court has ended up being heard.
Already there are initiatives by the African court to ensure ratification by the members state as a requirement of article 34(6) of the protocol establishing it but what is most disturbing is that the member states threatening to pull out of the ICC have not shown any enthusiasm to embrace ratification of the African Court and as a matter of fact most African countries have ratified the Rome Statue compared to those aligning themselves to the African Court.
The cornerstone to the discourse herein is the issue of international crimes for which the African court lacks jurisdiction as it can only rule on human rights cases save for the recent adoption of Malabo protocol by the AU. The protocol would see the court assume jurisdiction over international crimes, that would include transnational crime, acts of terrorism and unconstitutional change of governments which has been the major cause of war crimes in Africa. However, no single member state has ratified the protocol rendering it unimportant. Notably, the protocol requires a minimum of 15 countries to ratify it for it to be operational.
The trial of Hissene Habre in Extraordinary African Chambers in Dakar, Senegal on charges of war crimes perpetrated in Chad between the periods 1982 -1990, presented a challenge to Africa. The trial was efficiently concluded in a period of one year with minimum political interference, the tribunal settling for a conviction sentencing Habre to life imprisonment. Dubbed by the New York Times as ‘a milestone for justice’ the trial has made African jurists analyse the possibility of attainment of justice in cases against one-time powerful African leaders. This in itself is an alternative which Africans must consider seriously, with such tribunals having attracted the name Hybrid tribunals.
Being half national and half international by their very nature of establishment through agreements between the host state and the United Nations, Hybrid tribunals have been considered as cost-effective and serves to see expeditious justice bearing in mind that justice should not only be done but must be seen to be done. With a blend of both International and domestic criminal law, they fill well the shortcomings of a choice of pure domestic or pure international tribunals as far as prosecution of international crimes is concerned.
Attainment of justice and combating of crime is a crucial issue worldwide for the well-being of the human race, with proper mechanisms for the prosecution of international crimes being the most important means of securing justice. The ICC still is the main Court to prosecute these crimes but has been accused of being anti-African, the consequence of which, Africans have lost faith in the quest for justice in that forum. Alternatives options to the ICC exist, but much more needs to be done. A society without hope in its system of justice is a hopeless society.
The writer is a practicing lawyer with Arusei & Co. Advocates; Legal Advisor for Inua Vijana Investment Venture and the Founder of Mukami Kiplagat Foundation.