South Africa could inspire reform of the International Criminal Court – but chooses to be an outlier in the global justice system instead
The international criminal justice world is buzzing with activity, South Africa chose to make a spectacle of itself by reminding the world that it intends to leave the Rome Statute and ICC judges referred Jordan to the United Nations Security Council for failure to arrest President Bashir, a consequence that South Africa escaped despite being guilty of the same conduct.
Last week at the 16th International Criminal Court Assembly of States Parties (ASP), held in New York, South Africa’s Minister of Justice and Correctional Services, Michael Masutha reminded the forum that South Africa intends to leave the Rome Statute. This is nothing new given that South Africa has on several occasions made its intentions to leave the Rome Statute very clear. Yet they chose to steal the show, “embarrass” the Court, and make a splash by announcing this yet again. Grandstanding and choosing to reiterate what has already been made crystal clear at the biggest gathering of signatory states is nothing short of embarrassing. It sadly had the desired effect as it drastically changed the atmosphere in the room and became the talk of the day.
The South African government’s failure to arrest Sudanese President Omar al Bashir in 2015 was the catalyst for withdrawal from the Rome Statute. The High Court and the Supreme Court of Appeal ruled this failure to be unlawful and not long after that, South Africa announced its intention to withdraw from the Rome Statute. An unconstitutional notice of withdrawal was sent to the United Nations Secretary General on 19 October 2016.
The notice of withdrawal was subsequently withdrawn after domestic litigation by parliamentarians and civil society as the government had failed to follow constitutionally mandated procedure. A notice of withdrawal can only be sent once the Implementation of the Rome Statute of the Act 27 of 2002, the act domesticates the Rome Statute in South Africa, has been repealed. Repealing this Act requires public consultation and parliamentary participation. Whilst the litigation embarked upon temporarily prevented the nation from leaving the Rome Statute, (purely on procedural grounds) it did not make the ruling party change its mind.
After withdrawing the notice of withdrawal in March 2017, as per the High Court’s order, the government indicated that it still intended to leave the ICC and to follow correct parliamentary and constitutional procedure. The ANC’s Edna Molewa even issued an opinion piece on the matter on 10 July 2017, published in the Cape Times, belabouring the point. Therefore there was no doubt that the ANC’s resolve to withdraw remained intact.
Despite this clarity in intent and the unchanged government stance, the South African government saw fit to send Minister Masutha to make an announcement that would serve only to dominate headlines and show South Africa “striking back” in a petulant and unnecessary manner.
In addition to the domestic legal finding that failure to arrest Bashir was unlawful, the ICC also rightly found South Africa guilty of non-compliance on 6 July 2017 for its failure to apprehend a wanted fugitive. In most cases, nations found to have been non-compliant in this respect have been referred to the UNSC for further action. However, in South Africa’s case, no referral was forthcoming. Some suggest that this was the Court’s attempt to placate South Africa and prevent it from leaving the ICC but this backfired. In any case, it is not for ICC judges to dabble in politics but to render judgements that are sound in law.
To make matters more complicated and blatantly inconsistent, on 11 December 2017 the ICC judges referred Jordan, the latest member state to welcome Bashir, to the UNSC for non-compliance. South Africa was erroneously spared the same fate as I have written previously.
It is clear that the ICC is far from perfect and the inconsistency in the Court’s jurisprudence is but one example, however that does not warrant abandoning the only permanent international criminal court. Many of the challenges faced by the ICC are inextricably linked to the political machinations and games at play within the UNSC. This includes the fact that permanent Security Council members have the power to veto referrals to the ICC, yet 3 of the five members refuse to join the Rome Statute.
South Africa has an opportunity to lead engagement efforts that could inspire much needed ICC reform. This an area that needs vigorous, and determined engagement. However, once South Africa has left the system it is rendered powerless and an outlier in the global justice system.
South Africa was at the forefront of the creation of the ICC and played a key role as a leading African voice thus making its current stance all the more lamentable. Leaving the Rome Statute is a wasted opportunity and as poignantly expressed by Advocate Max du Plessis, it is an example of “how to squander leadership.”
** This piece appeared in the Daily Maverick and the Star Newspaper
Genocide- UN failure in Rwanda and the former Yugoslavia
Last week the “Butcher of Bosnia,” Ratko Mladić, was convicted and sentenced to life in prison for orchestrating genocide, war crimes and crimes against humanity committed during the Bosnian War. The day his verdict and sentence were announced I happened to be in Rwanda, Kigali walking the halls of the Kigali Genocide Memorial Centre, where the horrors of yet another genocide are in exhibited. Naturally, the brutality of the crimes, the suffering of innocent people and the blatant disregard for human life were factors that immediately affected me, but the glaring and calamitous failure of the United Nations in both instances was the most disappointing element.
In Rwanda, the genocide claimed the lives of roughly 500 000 - 1 000 000 people in the space of 100 days. The genocide was carefully planned by members of the core political elite in Rwanda, as they mobilised and encouraged armed forces and ordinary Hutu civilians to slaughter their Tutsi neighbours and any Hutus who opposed the purge.
Ethnic tension in Rwanda has a long and complicated history exacerbated by the negative effects of colonialism, and an imbalance in political and economic power. Whilst there was violence and fighting between ethnic groups in the past, the 1994 genocide constitutes the worst manifestation of the ethnic tension in Rwanda in the 20th century.
The 1990-1993 civil war between the Rwandan Patriotic Front (RPF), who were operating from neighbouring Uganda, and the Rwandan Government attracted the presence of UN peacekeepers. The UN Assistance Mission for Rwanda (UNAMIR) was mandated to supervise the implementation of the Arusha Accords, which was a peace agreement between the government of Rwanda and the RPF designed to bring an end to the civil war.
UNAMIR commander Roméo Dallaire received information about the imminent massacre and relayed it to UN Headquarters requesting: reinforcements; permission to raid suspected weapons storage facilities; and protection of an informant who had provided compelling information. Unfortunately, his requests were denied and the threat of mass extermination was ignored. A few months later, the slaughter began. Members of the UN force were withdrawn and seventy percent of the Tutsi population was wiped out.
On day one of the genocide, hundreds of Tutsis fled to a school where 90 UN troops were stationed and armed with a machine gun. The UN decided it was more important for those troops to escort foreigners out of Rwanda than to protect the Tutsis at the school and so they abandoned the school and all who sought refuge there. Hours later 2000 people at the school were dead.
The UN failed on three fronts, it ignored warnings, it failed to effectively act whilst the killing was underway and it even abandoned the people who hoped and believed the UN would to protect them.
A year later in 1995 the Balkans would be the stage upon which the next brutal massacre of civilians would play out. Mladic was the army general who directed his troops to commit the worst massacres seen in post war Europe. Indicted in 1995, he was a fugitive for 16 years. Mladic claimed to be avenging his Serbian people and protecting them from the Bosnian Muslims and Croats. His crimes include the 1995 killing of the 7,000 Bosniak men and boys at Srebrenica and the 3 year beleaguerment of Sarajevo where over 10,000 people died. Mladic told his troops to “burn their brains" and "shell them until they're on the edge of madness.”
Given that the region was at war, the UN peacekeepers were present. In Srebrenica, a small salt mining town, the UN had created a “safe zone” and was responsible for the protection of Bosniak civilians. However, they failed to deploy enough troops to defend the area.
Not only were they outnumbered and outgunned but some of the troops apparently abandoned their posts. Therefore, in July 1995, after the UN troops capitulated, Mladic marched into the small enclave and took control. The men and young boys were rounded up and shot with their hands tied behind their backs and their bodies were dumped in mass graves. Granted, Mladic took UN soldiers hostage and seemed to have little respect for them but this does not absolve the UN of its responsibilities.
The UN released a report detailing its errors in judgement and condemning its failure to act. Kofi Annan stated that “the tragedy of Srebrenica will haunt our history forever” and that the international community “failed Rwanda at that time of evil”.
The UN and all its mandated organs have the responsibility to prevent atrocities and maintain global peace and security. As per its founding Charter, the UN was designed to “save succeeding generations from the scourge of war”. If Rwanda and Srebrenica are anything to go by then we sadly have a long way to go.
**This article appeared in the Star Newspapers on 30 November 2017 under the title " Failing to Protect and Stop Atrocities"
ICC's Afghanistan investigation- could this shape how the ICC is perceived by Africans?
There are great changes afoot on the international criminal justice landscape. Last week the Office of the Prosecutor (OTP) of the International Criminal Court announced its decision to request judicial authorisation for an investigation into the situation in Afghanistan. Given that this situation involves investigating the conduct of American troops, it could do wonders for the OTP’s reputation with regard to the allegation that it only “targets weaker African” states. It could simultaneously result in the weakening of prosecutorial efficacy if it embarks on yet another near impossible investigation.
The OTP made its preliminary examination into Afghanistan public in 2007, a preliminary examination precedes an investigation as the OTP needs this step to determine whether there is sufficient information to proceed. The preliminary examination focuses on crimes against humanity and war crimes allegedly committed during the armed conflict between pro-government forces and anti-government forces in Afghanistan. In this case, the “pro- government forces” include the US forces insofar as they were supporting the established Afghanistan government, and the anti-government forces include the Taliban.
Clandestine detention facilities operated by the Central Intelligence Agency (CIA) and US troops are where allegations stem from. US troops and CIA operatives allegedly used torture, sexual violence and rape, as part of their interrogation toolkit. They are believed to have subjected at least 88 detainees to this cruel and degrading treatment during May 2003 to December 2014, with most of the abuse allegations having occurred during 2003-2004.The most disturbing element of the allegations is that it was not just a group of wayward soldiers, instead it seems to have been part of a formally approved interrogation strategy designed to elicit “actionable intelligence” from detainees.
If the OTP's request is granted by the judges, the opening of an investigation would be a positive development for victims, the rule of law, justice and accountability. It would send a strong message that no-one is above the law and that the ICC is ready to investigate and prosecute without fear or favour. It would also positively influence how the OTP is perceived by many African politicians.
The ICC has unfairly been accused to targeting Africa and of being a neo-colonialist institution due to the fact that all of the cases at trial stage are African cases. A careful deconstruction of this averment and an understanding of the limits of the Court’s jurisdiction will quickly reveal that it is more accurate to say that it is Africans making use of the Court we were instrumental in creating. Gabon is the latest country to do so having asked the ICC to intervene in 2016. Uganda, the Democratic Republic of Congo, Central African Republic, and Mali also requested the ICC’s intervention. Be that as it may, the opening of an investigation that involves a global superpower could dramatically counter the allegation of bias against Africans.
However, this could turn out to be yet another impossible investigation for the OTP. The US does not acknowledge the ICC’s jurisdiction and is not a party to the Rome Statute and thus cooperation is unlikely.
From the Court's inception, the relationship with the US has been frosty. Under President Clinton the Rome Statute was signed but never ratified, and thus was never legally binding. Under Bush in 2002, the Rome Statute was “unsigned” and the relationship deteriorated including manipulating other member states to ensure they sign immunity agreements that protect US citizens and blocking UN peacekeeping resolutions that did not include ICC immunity provisions. Under the same administration the American Service-Members' Protection Act was signed into law and it allows the president to use "all means necessary and appropriate to rescue any U.S. or allied personnel detained or imprisoned by, on behalf of, or at the request of the ICC”.
The frost began to thaw under President Obama with the US voting in favour of two United Nations Security Council referrals and assisting with the transfer of wanted suspects Bosco Ntaganda and Dominic Ongwen to the ICC. The political motivation behind both these acts cannot be ignored but they can also be seen as important acts in support of international criminal justice. Last week’s announcement has been all but welcome with the Pentagon’s spokesperson Eric Pahon stating publically that an ICC investigation of Americans would be “wholly unwarranted and unjustified.”
Once the request is made, the next step is for the judges of the ICC to consider the prosecutor’s request. Perhaps they deny the request, which makes the OTP look good for having made the request in the first place, and then it is the judges who will shoulder the "blame". Perhaps the judges agree and a very challenging investigation begins. Either way, this is definitely an important step that could mark a turning point in international justice.
**This article was published in the Star Newspaper on 16 November 2017 under the title " Perception of ICC at crossroads''
Burundi abandons the ICC-where does this leave the victims?
Last week on 27 October 2017 Burundi's withdrawal from the International Criminal Court became effective, making it the first country to leave the ICC. Given the ongoing perpetration of human rights violations, and lack of accountability, the future of the east African nation hangs in the balance. With the Burundi's presidential office calling it a "great victory “and a move to protect "sovereignty and national pride" where does this leave the victims of egregious crimes Burundi?
Since independence in 1962 and even years before that, the nation has battled with conflict and civil unrest including the 1972 massacre of the Hutu at the hands of the Tutsi dominated army. 1993 saw a repeat of the slaughter only this time the roles were reversed- the majority Hutu population targeted and murdered several hundred Tutsis. This led to 13 years of civil war and the deaths of an estimated 300 000 people. The divide and conquer stratagem used by Belgian colonial powers is inextricably linked to history of ethnic conflict in Burundi's but the nation’s challenges today are compounded by other factors including underdevelopment, poor health care and poverty.
In addition, current President, Pierre Nkurunziza's determination to stay in power after 12 years at the helm has caused civil unrest and protest. Nkurunziza made a controversial bid for a third term in office despite many questioning the legitimacy and constitutionality of his candidature. Two months of anti-Nkurunziza protests resulted in the deaths of at least 100 people in 2015 as state police used extreme violence and intimidation to disperse protests and suppress protestors.
A failed coup d état resulted in further suppression and state sanctioned violence against opposition movements and ordinary civilians. More than 325 000 Burundians have fled in fear since 2015, ending up in Tanzania, Rwanda, Uganda and the Democratic Republic of Congo.
National security and intelligence services, in collaboration with the ruling party's youth wing Imbonerakure, have been accused of summary executions, abductions, torture, rape, and sexual assault. Armed opposition groups have also contributed to the violence using similarly grotesque means to attack their enemies.
As the situation deteriorated the United Nations formed a Commission of Inquiry in 2016. Mandated to conduct a thorough investigation into human rights violations and abuses committed in Burundi since April 2015, the Commission concluded that grave human rights violations have and continue to be perpetrated in Burundi in impunity. The UN Commission even urged the ICC to open a full investigation into the situation in Burundi when it released its report in September this year.
By this point, the ICC already had an eye on the situation, having announced its preliminary examination on 25 April 2016. At the time, more than 430 persons had reportedly been killed.
A preliminary examination precedes an investigation and is used by the Prosecutor to determine whether there is enough information on the alleged “crimes of sufficient gravity", which then provides a "reasonable basis" to open an investigation.
It remains to be seen whether the ICC will open such an investigation and although Burundi’s withdrawal from the ICC has caused alarm, their departure does not necessarily mean they are off the hook.
The ICC still has jurisdiction over crimes committed during the time Burundi was a state party. Though there are legal scholars who beg to differ on this issue let us assume that is indeed the case, there are still numerous pragmatic hurdles to delivering justice for alleged crimes against humanity in Burundi. The mere fact that the ICC is unwelcome in Burundi already makes gathering evidence and obtaining access witnesses and victims onerous. The picture is unfortunately no better when one considers domestic justice options.
Domestic justice for human rights violations remains elusive, partial, one sided, and inconsistent. Whilst the politicians wax lyrical about “sovereignty and national pride” people are being slaughtered, the rule of law is crumbling and victims have nowhere to turn.
The Commission also called for the UN Security Council to refer the situation to the ICC for crimes committed after 27 October 2017, the date upon which withdrawal became effective. This is one of the three ways in which a matter can come before the ICC. The other two are self-referrals from member states and when the prosecutor exercises her power and initiates a process within a member state. A UNSC referral could cover the ever-growing impunity gap. However, it would be yet another referral of an African situation which will continue to fuel allegations of bias against Africa. Three of the permanent five members of the UNSC, the US, Russia, and China remain outside the Rome Statute system and yet they have been bestowed with the power to veto referrals to the ICC. This skewed political dimension stymies the international criminal justice project and provides fodder for its detractors.
**This article appeared in the Star on 2 November 2017
South Africa's apartheid skeltons are coming out of the closet
On 12 October, a High Court judge found that anti-apartheid stalwart Ahmed Timol was in fact murdered and did not, as alleged by the Security Branch police, commit suicide by jumping from the 10th floor of the John Vorster Square Police Station. It has been an arduous journey for the Timol family in their quest for truth. Finally, they have been vindicated. This is an important outcome as it raises vital questions about the unfinished business of the apartheid era. It also exposes the current government’s failure to provide justice for many families who lost loved ones during the struggle against apartheid.
Timol was a school teacher who opposed the brutality of the apartheid regime. Branded as a “terrorist” he was arrested in October 1971 and died in detention four days later.
After the then attorney general declined to prosecute, an inquest into Timol’s death was held in1972. The inquest served to merely rubber stamp his death and provided a way for the Security Branch to cover their murderous tracks. Timol’s nephew, Imtiaz Cajee started researching his uncle’s death and as anyone would- he wanted the truth. Cajee, whom I had the pleasure of meeting once, was determined to find answers. With the help of Foundation on Human Rights, Advocate Howard Varney, and expert investigator Frank Dutton, all of whom I have had the pleasure and honour of working with- the inquest was reopened on July 26, 2017.
According to the South African History Online, 73 anti-apartheid activists died in detention between 1963 and 1990 yet no one has been held accountable. In Timol’s case, out of the thirty or so members of the Security Branch who participated in his arrest, and the investigation of his death, only three were found alive. The longer these cases are delayed, the slimmer the chances of justice, truth and closure. Had the NPA acted in 2003 when they were originally approached by Cajee, Hans Gloy, one of Timol’s lead interrogators (he was also with Timol moments before his death), and several others who were involved would have been alive. Gloy died in 2012. Timol described the NPA’s approach as “cavalier and uncaring.”
The Timol case is one of many examples where families were left with no answers. The National Prosecuting Authority’s Priority Crimes Litigation Unit has been crippled by misplaced political considerations and has failed to prosecute and investigate many suspected apartheid era perpetrators who continue to enjoy impunity and undeserved freedom. The NPA stated mission is to “ensure justice for the victims of crime by prosecuting without fear, favour and prejudice and …to solve and prevent crime.” Yet thus far, their conduct in this regard has been found wanting. Where they have finally seen fit to fulfil their mandate it has taken years of legal wrangling to elicit action.
The case of Nokuthula Simelane, a young anti-apartheid heroine who was abducted, tortured and disappeared in 1983, is another example of the NPA’s failure to act timeously. Having personally worked on this case I recall the reluctance and the unconscionable delay in the handling of the Simelane matter by the NPA. Only after years of excuses, the disappearance of the case file, and the filling of legal papers challenging the NPA’s failure to prosecute, did they finally agree to prosecute Nokuthula’s suspected murders.
The legal papers that finally spurred the NPA into action include publicly available affidavits from former prosecutor Vusi Pikoli, who was suspended after pursuing apartheid era crimes. He vividly recalls the heavy handed political interference that prevented him from pursuing apartheid crimes. Why would the ANC prevent the prosecution of former Security Branch police? Could it be that the ANC runs the risk of having their own criminal apartheid era secrets exposed if they allow prosecutors to dig into the dark past?
After waiting for over 33 years for justice, Nokuthula’s family is still waiting as the case has stalled due issues pertaining to the legal fees of the accused. The accused are of the opinion that the Police Commissioner should pay their legal fees and unsurprisingly, the Commissioner’s legal team disagrees.
Whilst the NPA seem to have been more cooperative in the Timol matter, they have not shown the same enthusiasm for other cases. The failure to adequately deal with the apartheid era crimes will continue to haunt the nation. Timol would be 70 years old this year, instead he died at the young age of 29 and only in 2017 has the truth about his brutal murder and torture been uncovered. The powers that be cannot be allowed to continue to ignore their legal duties and obligations. This state of impunity will only serve to destroy the fabric of rule of law and make a mockery of those who fully disclosed their crimes before the TRC.
** This article appeared in the Star Newspaper on 19 October 2017
Uganda's presidential term limit debacle
Parliamentary brawls are becoming more common across the world. The scenes in Uganda’s parliamentary session last week were not unlike the ones that unfolded in South Africa’s parliament a few months ago. Punches and chairs were thrown and security staff were called to remove 25 members of parliament. The cause of the brawls- the introduction of a Bill that would remove presidential age limits, effectively allowing 73-year-old President Museveni to remain as an eligible candidate.
Members of the opposition and those of the ruling party, the National Resistance Movement (NRM), clashed during parliamentary sessions. Disturbing footage of the violence is all over the internet and has resulted in restrictions on the broadcasting of parliamentary sessions.
Discontent and opposition to the bill has not been confined to the halls of parliament. There have also been protests and demonstrations by students, civil society and concerned citizens. Ugandan security forces have reportedly clamped down on protests, detained journalists, raided offices belonging to international non-governmental organisations and arbitrarily arrested members of the opposition.
The NRM propped up their bill with curious arguments including that the current constitutional provision that provides an age restriction discriminates against the elderly. However, the ruling party's true motives are far simpler than a claim of discrimination. According to the Constitution a presidential hopeful must not be "less than thirty-five years and not more than seventy-five years of age". Museveni is 73 this year and the next election will be in 2021, without amending the laws- he cannot legally run.
Museveni has been in power since 1986 and is one of Africa's longest standing leaders. He has progressively dismantled any constitutional hindrances that could remove him from power. For example, in 2005 he scrapped the two-term presidential limit allowing him to run for yet another term. In addition to amending the law in a bid to secure political longevity, the electoral process in Uganda has not always been free of controversy.
Unfortunately, the "president for life" trend in Africa is unsurprising. Like a married couple, power and certain Africa leaders seem to have a “till death do us part” arrangement. The Equatorial Guinea's Teodoro Obiang Nguema has been in power for 38 years and is 75 years old. Cameroon's Paul Biya has been in power for 35 years and is 84 years old and thrives in a system with no term limits and President Omar al Bashir of Sudan has been in power since 1989 and is 73 this year.
Perhaps these leaders will surpass the all-time record held by Ethiopian Emperor Hailie Selassie who reigned for 44 years. Muammar Gaddafi, is a close second as he managed to hold on to power for 42 years and Gabonese Omar Bongo Ondimba hit the 41 years in power mark at the age of 74.
Whilst many of these leaders played an instrumental role in the liberation and independence of their nations from foreign elements, many have also played a role in the brutal suppression of their own people particularly when there are voices calling for change.
In addition to using autocratic methods to stay in power, these leaders have also negatively influenced the some of Africa's younger leaders. The Democratic Republic of Congo's President Joseph Kabila, 46 years old, has taken a page out of the president for life playbook. Kabila has breached his term limit by 9 months and has failed to hold fresh elections. Members of Kabila's government allege that logistical constraints are preventing the election process from taking place but the veracity of these claims is deeply questionable. Blood has been shed as activists and opposition movements agitate for change. Many fear that the bloodshed will continue as the situation deteriorates rapidly.
53-year-old President Pierre Nkurunziza of Burundi sent his nation into a downward spiral when he controversially stood for a third term in office. Protests ensued, a coup was attempted, and a violent crackdown took place. Hundreds have been killed since he announced his intention to run for office. Burundi is on the brink of fully fledged chaos and yet Nkurunziza continues to cling on to power. Other younger leaders involved in heading down the same precarious road include 49-year-old King Mswati III of Swaziland who was crowned in 1986 at the age of 18 and remains in power today.
Developments in Uganda and the never-ending reign of many Africa leaders bring to mind the rare yet important example set by other leaders. I vividly recall attending a Southern Africa Development Community (SADC) Lawyers Association meeting in 2015 where the former Tanzanian president Jakaya Kikwete was invited to give opening remarks. As it was one of his last official events in office, he stood at the podium and declared loud and proud that there is indeed life after the Presidency. If only other African leaders felt the same way.
** This piece appeared in the Star with the title "Holding on with all their might" on 5 October 2017
Asserting the supremacy of the Kenyan Constitution
Mandated to "assert the supremacy of the Constitution and the sovereignty of the people of Kenya" the Kenyan Supreme Court did just that last week when they stunned the world with a ruling that has positively resonated throughout the African continent. Kenya's highest court ruled that the 2017 Presidential election results were null and void on the basis that the election was not held in accordance with the Constitution and applicable laws. This judgement displays the power of judicial independence and champions the rule of law, but it also casts aspersions on the role played by international election observers who had generally declared the election to be free and fair.
Fearing a repeat of the 2007/2008 post election violence, the 2017 election had Kenyans on the edge of their seats. Though there were reported incidents of violence, allegedly at the hands of security officers, it paled in comparison to the loss of 1200 lives during the 2007/2008 post election violence. What did feature prominently in this election were the irregularities and claims that the ruling party had compromised the credibility of the elections. What has clearly emerged is that the Independent Electoral and Boundaries Commission (IEBC) failed to follow election rules and regulations as well as the Constitution, thus compromising the outcome.
Incumbent Uhuru Kenyatta and rival Raila Odinga have gone head to head in the polls in the past and Odinga has always come up short. According to the poll results Uhuru Kenyatta won the election having secured 54 % of the vote. Odinga approached the Court and four of the six sitting judges nullified the results and called for fresh elections to be held within 60 days. Two of the six judges dissented, and a seventh judge fell ill on the last day of the hearing.
The Kenyan Supreme Court has ruled without fear or favour and entrenched constitutional law simultaneously protecting democracy. Whilst Kenyatta accepted the ruling he regretted, that "6 people have decided that they will go against the will of the people." Despite his quibble, this ruling reflects the importance of a clear separation of powers and reminds us all that independent and credible courts are a vital part of any democratic nation.
Whilst the Kenyan Supreme Court is fulfilling its mandate in an impartial and credible manner, the same cannot be said about the international election observers. To be fair, the work done by an election observer mission is no mean feat. It is a costly affair requiring detailed planning, a decent sized workforce and generous funding. However, not all of these vital elements come together.
The European Union Election Observer Mission deployed roughly 130 observers and the African Union Election Observer Mission (AUEOM) had a delegation of 90 short-term observers and 14 long-term observers. Some would argue these figures are too low for effective election monitoring.
The Carter Centre Observation Mission included roughly 100 observers. On the day of the election they observed the process in 424 polling stations in 185 constituencies across 39 Kenyan counties. They also observed the vote tallying process in 36 constituency tally centers. There are 290 constituencies in Kenya.
The number of people deployed and funding constraints faced by election observation missions must be considered, as should the sometimes limited access they are granted by host nations. However, in this particular case- the factors they choose to focus on also require scrutiny. Many observers placed great emphasis on the fact that the process was predominantly peaceful-a valid and important point -but in some cases this seems to have resulted in an expeditious and perhaps premature conclusion that the process was also fair.
John Mahama, former Ghanaian President, led the Commonwealth Observer Mission and indicated “Our overall conclusion is that the opening, voting, closing and counting process at the polling stations on 8 August 2017 were credible, transparent and inclusive."
The AUEOM, led by former President Thabo Mbeki, whilst reserving the right to make further comments stated "we can say that the processes we were able to observe, up to and including the counting of the votes at the polling stations and their transmission to the IEBC, met the standards set by Kenya and the AU for the conduct of democratic elections." Though the detailed judgement is yet to be released, the ruling from the judges paints a different picture.
The election observers have a chance to get it right as elections have been set for 17 October 2017. The situation remains complicated as there are doubts about the constitution and the credibility of the IEBC, and questions about whether there is sufficient time to organise an entire re-election. All of this compounded with fears as to whether the process will be peaceful, transparent and fair, be that as it may, the show must go on.
**This article appeared in the Star Newspaper on 7 September 2017
History to repeat itself in Kenya?
Early next month on 8 August, the Kenyans take to the ballot box. They will vote for a president, members of parliament and local politicians. Since the end of a one party state in 1991, several Kenyan elections have been marred with violence. Kenya’s 2007/ 2008 post election violence resulted in the deaths of at least 1,400 people, and the displacement of 600,000 people. There are various factors that make the 2017 election unique and of great interest but the question on everyone’s mind is -will history repeat itself and will violence consume what should be a democratic, fair and peaceful process?
This year, President Uhuru Kenyatta, representing the Jubilee party will run against the National Super Alliance (NASA)’ s Raila Odinga. Odinga ran and lost to Kenyatta by 0.7 % in 2013 though he alleges that those elections were rigged.
The political rivalry is intense and there is a strong element of ethnic tension that complicates matters. As noted by the Truth Justice and Reconciliation Commission Report ethnic tension can be linked to “divide and rule” method used during the colonial era. Ethnic groups were pitted against each other to prevent them from joining forces against colonial rule. The unfair distribution of fertile land (particularly in the Rift Valley and along the Coast), and the allocation of positions in public office according to ethnicity, have also exacerbated ethnic tension. In addition, the current government has failed, to take appropriate measures to address the situation.
According to a 2013 study conducted by the Kenya National Bureau of Statistics, the largest native ethnic groups are the Kikuyu (6,622,576), the Luhya (5,338,666), the Kalenjin (4,967,328), the Luo (4,044,440) and the Kamba (3,893,157). Incumbent Kenyatta and his deputy Ruto are generally supported by the Kikuyus and the Kalenjins. Odinga, has a party that generally attracts the support of the Luo, Kamba and Luhya groups.
2007/2008-post election violence has been noted as one of the worst manifestations of ethnic tension. It also saw the indictment of Kenyatta, and Ruto by the International Criminal Court for crimes against humanity that fell along political lines and hence ethnic lines.
Kenyatta was charged with organising the Mungiki group who allegedly committed widespread and systematic attacks against the non-Kikuyu population perceived as supporting the opposition. Most of the victims belonged to the Luo, Luhya and Kalenjin ethnic groups in Nakuru and Naivasha. Their alleged crimes included rape, murder, forcible transfer, persecution and other inhuman acts.
Ruto was accused of organising, murder, forced deportation, and persecution committed immediately after the announcement of the results of the presidential election. A coordinated attack was carried out by groups of Kalenjin people, in Turbo town, the greater Eldoret area, Kapsabet town, Nandi Hills town, Uasin Gishu and Nandi District. The attack allegedly targeted Kikuyu, Kamba and Kisii ethnic groups, who were perceived supporters of the Party of National Unity. Despite being opponents in 2007, Ruto and Kenyatta joined forces and remain united in their campaign against Odinga.
Both their ICC cases subsequently fell apart for various reasons. Kenyatta and Ruto remain innocent until proven guilty, however, one has to wonder whether further violence will be orchestrated given that these two leaders continue to wield power.
The Kenyan’s also face other challenges during this election period. There are grave concerns about the credibility of the electoral commission and the high levels of corruption in government structures and in the law enforcement arena.
Also, the issue of adequate representation of women in politics continues to be a challenge. Amendments to the Constitution that would improve the gender balance in parliament are yet to be implemented and thus women remain underrepresented.
Freedom of expression in the build up to elections has also been questioned as journalists and the media have faced threats. Journalists and bloggers who have been vocal about government corruption have allegedly been attacked and intimidated by government agents.
Concerns around Al Shabaab terrorist attacks also exist and present additional security challenges. Al Shabaab attacks in Kenya have had a severe distabilising effect in areas close to the Somali border. Earlier this month on 8 July, 9 civilians were beheaded in a Kenyan village. Al Shabaab’s activities in Kenya are believed to be acts of retribution against Kenya because the Kenyans sent troops into Somalia to assist in the fight against this Al Shabaab in 2011. In addition to security threats, the country is facing a drought and there are food shortages in certain areas
However, there are some positive aspects, for example this is the first time in the history of the country that prisoners will be able to vote. Reports indicate that 5,528 voters from 118 prisons have registered to vote.
The world is watching Kenya. Hopefully, the 2017 election will be free, fair and peaceful.
**This article appeared in the Star Newspaper on 27 July 2017
Non–Compliance but no referral : the ICC muddies the waters
Last week, the judges at the International Criminal Court (ICC) handed down their long-awaited judgment regarding South Africa’s failure to arrest Sudanese President Omar al Bashir. The Court was tasked with determining whether South Africa failed to comply with its obligations and, in the case that it had, if a formal finding of non-compliance and a referral to the Assembly of States Parties (ASP) and/ or the United Nations Security Council (UNSC) was warranted. The ICC found that South Africa had indeed failed to comply with its obligations, yet curiously, the judges failed to make a referral to the ASP or the UNSC. Not only is this a significant departure from previous rulings on non-compliance with respect to Bashir’s presence in signatory states, but it may do the ICC more harm than good as far as being taken seriously as a legal institution.
Bashir’s June 2015 arrival in South Africa for the 25th African Union Summit is where South Africa’s woes began. Legally obligated in terms of domestic and international law to arrest Bashir, the South African government chose instead to welcome him. Not only was this a breach of domestic and international law as well as the beginning of what many referred to as a constitutional crisis, it was also a significant departure from South Africa’s previous stance on Bashir’s presence in the country.
In 2009 Bashir was invited to the inauguration of President Jacob Zuma. He was told behind closed doors that should he arrive, he would be immediately arrested and subsequently surrendered to The Hague. The then director general of the Department of International Relations and Cooperation made this very clear in a public statement released by the government.
Unfortunately, in 2015, the government chose to disregard its domestic and international obligations. The South Africa based non-governmental organisation, Southern Africa Litigation Centre (SALC) took action to address this blatant disregard for the rule of law (as SALC’s international criminal justice lawyer at the time, this case was my responsibility). They approached the domestic courts seeking the implementation of the arrest warrant. The High Court began by issuing an order to prevent Bashir from leaving the country and later, it ruled that failure to arrest Bashir was unlawful. The Supreme Court of Appeal made a similar finding.
Having lost the battle at the domestic level, South Africa still had to face the proverbial music before the Pre-Trial Chamber on 7 April 2017.
A non-compliance hearing of this nature, though unprecedented, provided a vital opportunity for the South African government to defend its actions. In addition to questioning the Article 97 consultation process, the South African government submitted that the ICC’s previous judgments in this regard were inconsistent and that head of state immunity in terms of customary international law prevented South Africa from arresting Bashir.
The ICC’s past judgments on other state’s failures to arrest Bashir have drawn fair and unfair criticism from all corners, and finding South Africa non-compliant and then failing to refer them to the ASP or UNSC has done nothing but muddy the waters. The Pre-Trial Chamber has disempowered itself by declining to use its only judicial remedy in instances of state non-compliance.
The Pre-Trial Chamber submitted that it is within its discretion as to whether a state party is referred to external organs. Relying on the previous judgment in the Uhuru Kenyatta non-compliance case, the Chamber indicated that it “must assess the particularities of each situation to determine the most favorable course of action” and ask itself whether “engaging external actors, by way of a referral would be an efficient method to secure South Africa’s cooperation.”
The problem with this is that it presumes that South Africa will have another opportunity to cooperate with the Court in facilitating the arrest and transfer of Bashir and that South Africa will seize such an opportunity. Given their conduct in June 2015, the continued denial of a duty to act, and threats of withdrawal from the ICC, it is highly unlikely that the South African government will cooperate with the Court.
South Africa was notified of the requests for the arrest and surrender of Bashir on 5 March 2009 and 16 August 2010 respectively. The South African government agreed to host the AU Summit several months in advance and hence the Bashir question could easily have been anticipated. SALC reminded the government on 21 May 2015, a month before the Summit that there was a duty to arrest President Bashir, as did the Registrar of the Court on 28 May 2015.
Despite this, the government waited until the 11th hour (the eve of Bashir’s arrival) before they took any proactive steps to engage the ICC to express the alleged complexity of cooperation. The Pre-Trial Chamber seems to have favorably viewed the fact that the government sought to consult at all. This is one of the factors, according to the Pre-Trial Chamber, that distinguishes South Africa from other states that were referred for non-compliance. No regard has been paid to the severely belated nature of South Africa’s feigned attempt to engage.
Despite it’s reasoning, the Pre-Trial Chamber has failed to sanction behaviour that warrants sanction and censure. A clear and unfortunate message has been sent to all states parties- non-compliance has no consequences. As pointed out by the Office of the Prosecutor (OTP), this could give other states the courage to disregard cooperation requests.
South Africa effectively prevented the Court from exercising its mandate and undermined it as an institution when it failed to arrest Bashir. This Pre-Trial Chamber has undermined itself in failing to make a referral.
Whilst it is true that referrals to the UNSC and ASP have resulted in little or no action (as seen with the referrals of Djibouti, Uganda, the DRC, Malawi and Chad) the Court is not helping the situation by refusing to refer South Africa to the external bodies mandated to address non-compliance.
At the domestic level, the South African High Court felt it “prudent to invite the National Director of Public Prosecutions to consider whether criminal proceedings are appropriate” for the violation of the order prohibiting Bashir’s departure from South Africa. Whether anything will come from this remains to be seen. Perhaps the idea that actions have consequences will be reinforced at the domestic level, or perhaps as with the ICC – the South African government will get off lightly yet again.
This article first appeared on the Justice and Conflict Blog https://justiceinconflict.org/2017/07/20/non-compliance-but-no-referral-the-icc-muddies-the-waters/
Point of no return for many Africans
Earlier this week I had the opportunity to visit the Senegalese Island of Goree, which was a pivotal part of the harrowing Transatlantic Slave Trade. Despite the formal abolition of slavery roughly 150 years ago, according to the Global Slavery Index 45.8 million people are modern day slaves currently. The humbling and deeply moving experience of visiting this island and understanding how slaves were treated makes the Global Slavery Index all the more alarming. How can it be, that in the 21st century slavery continues to exist?
Goree Island is only 900 meters by 350 meters and is home to an estimated 1680 people. Goree Island’s strategic value perpetuated conflict between the Portuguese, Dutch and French in their bid to control vital trading routes. The islands architecture exhibits influence from these three nations. The narrow dusty streets tell the sad story of the slavery that devastated the African continent from the 15th century till the late 18th century. Some historians say that the Transatlantic Slave Trade was responsible for the movement of between 12 - 15 million people from Africa to the West during that time.
Guided by a local historian and tour guide, I was taken to the infamous “House of Slaves” which was built by the French between 1780–1784. This is just one of the 28 slave houses that existed on the island.
Whilst there is an academic debate as to how many slaves actually passed through the House of Slaves, the House was transformed into a museum in 1962 to share the plight of the slaves and preserve this inhuman and tragic part of history. The House memorialises the final departure points of slaves destined for the Americas. Goree Island has been called “one of the largest slave-trading centres on the African coast” by UNESCO. Designated a UNESCO World Heritage Site in 1978, Goree Island’s history exposes the worst of human nature.
Slaves were kept in the House in squalid conditions, shackled, chained and separated from their families. At any time 15-20 slaves were crammed into small 2.6 metres by 2.6 metres rooms. Smaller dark rooms were used to punish those who refused to follow orders. The slaves would be piled into these punishment rooms where there is barely enough room to stand and left in their for days. Women and young girls were used as sex slaves. The unsanitary conditions in the house led to the outbreak of diseases. Many died before they could make it on to the ships destined for the Americas. Dead bodies were merely thrown into the sea to make space for other slaves. At the Atlantic sea-facing side of the house, a doorway called the “Door of no return” marks the last point where the slaves would ever be on African soil.
Whilst we look back in horror and rejoice that slavery was formerly and legally abolished, we need to stop and realize that modern day slavery still exists.
Modern day slavery is defined to include forced labor, human trafficking, debt bondage, use of child soldiers, child labor, and forced early marriages. The International Labour Organisation (ILO) calculates that 90% of the forced labourers are being exploited by companies or individuals whilst the remaining 10% are victims of forced labour at the hands of the state, or insurgent military groups. Sexual slavery is also considered as a form of forced labour, and it constitutes 22% of ILO slavery statistics.
The most disturbing part of all of this is that Illegal profits from forced labour amount to more than $44bn.
With regard to human trafficking, which is often essential for other forms of slavery, the UN’s Global Initiative to Fight Human Trafficking estimates that people trafficking is the third largest global criminal industry after drugs trafficking and trafficking of arms. The Asian continent accounts for more than half of existing modern day slavery statistics. Africa also has high numbers with Central African Republic, Democratic Republic of the Congo, Somalia, South Sudan, Sudan and Mauritania exhibiting the highest rates of modern slavery.
Women and children are particularly vulnerable and unfortunately not enough is being done by governments, corporations, law enforcement or the ordinary citizen to stop the exploitation of people.
With such disappointing statistics it is easy to feel powerless, however, bringing an end to modern day slavery requires a concerted effort from every part of society. For example, as a consumer, avoid purchasing chocolate that comes from child labour plantations in Cote D’Ivoire. Taking time to educate ourselves about the sources of the goods we enjoy could go a long way.
As small as this may seem, it could put a significant dent in the profits made by those exploiting human beings and subjecting them to modern day slavery. Hopefully it will not take another hundred or so years before we can say we have truly abolished slavery.
*This article appeared in the Star Newspaper on 13 July 2017