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Does Africa have an alternative to the ICC?

Sella OnekoMarch 3, 2016

African countries are tired of the International Criminal Court (ICC). A number of them have made that clear. But is there any hope for strengthening the African Union’s own African Court?

People flee violence in Kenya 2008
Image: AP

Yes, we know about the existence of this court, but it's doing very little to protect human rights in Africa. That's the essence of comments by DW's Facebook followers who were asked what they thought of the African Court on Human and Peoples' Rights (AfCHPR). Established by the African Union (AU) in 2004, the court is based in Arusha, Tanzania, which until recently also hosted the International Criminal Tribunal for Rwanda (ICTR). But could it one day really serve as an alternative to the ICC?

The court and its 11 judges have the task of hearing complaints by individuals, NGOs or the AU itself against its member states after all other legal options have been exhausted. Its basis: the African Charter on Human and Peoples' Rights which covers everything from the right to education, to the right to freedom of movement or participation in government.

In 2014, for instance, the court ruled that Tanzania's ban on independent candidates was undemocratic. Tanzania had previously required all political candidates to run on a party ticket. As Ottilia Maunganidze, senior researcher at the Institute for Security Studies in South Africa told DW, this was one of the court's most successful cases, which now only remains to be implemented.

One of the court's most prominent cases is that of Victoire Ingabire, a Rwandan opposition politician who was condemned to 15 years imprisonment by Rwanda's High and Supreme Court for amongst other things, spreading the ideology of genocide. In her ongoing case, Ingabire has asked the African Court to review her case. Rwandan representatives, however, failed to appear to a hearing on Friday (04.03.2016) and the case was adjourned indefinitely.

Signed but not ratified

The African Court's main problem, however, remains its lack of legitimacy in great parts of the African continent. So far, 30 countries are members of the court, but only eight have ratified the declaration that allows private individuals or NGOs to bring their complaints forward to the court. As a result, from the approximately 50 complaints that the Court has received, only a fraction could actually be heard. A graphic by the ACtHPR Monitor, an independent group that follows the activities of the court, shows 30 countries that have signed the protocol in orange and countries that have ratified said declaration in purple. A new state that ratified it last month is Benin.

"The African Court has embarked on continental sensitisation missions to encourage AU member states to ratify and make the declaration as required under 34(6)," the African Court wrote in a statement to DW.

An alternative to the ICC?

So, with African countries threatening to pull out of the ICC and the Rome Statute, why have they not put more effort into creating their own court? "What we have seen is that more African countries have ratified the Rome Statute than those that have aligned themselves with the African Court," Maunganidze told DW.

Unlike the ICC, which prosecutes war crimes and crimes against humanity, the African Court can at the moment only rule on human rights cases. In 2014 AU members adopted the Malabo Protocol, in which they decided to expand the court's mandate to include international criminal law. This would also include transnational crime, acts of terrorism and unconstitutional changes of government. Two years down the line, however, not even one member state has ratified this protocol.

"One of the reasons we have been told by the AU is that they want to amend the protocol to make it better. The question is, why adopt a protocol if you were not happy with it?" Maunganidze said.

Do Africans really support the International Criminal Court?

For a green light to start a chamber for criminal justice, the court needs at least 15 ratifications of the Malabo Protocol. Only then can the search for competent staff, judges and the construction of facilities, like pre-trial detention areas, be started.

According to the court, it currently receives a budget of about $10 million (9.13 million euros) from the AU. It also receives support through expertise from countries like Germany. But according to Maunganidze, its current budget is only a fraction of what it will need if it wants to delve into the much more expensive field of criminal justice.

Do governments really want justice?

Kenyan legal expert Godfrey Musila, who heads the International Criminal Law Research Department at the International Nuremberg Principles Academy in Germany, believes that there could be room for the ICC and the African Court to work side by side in future and complement each other.

One major problem that he sees in the African Court, is that it has inbuilt mechanisms that prevents it from prosecuting heads of state and high level government officials. The ICC has on the other hand accused Sudan's President Omar al-Bashir of war crimes, as well as Kenya's Vice President William Ruto. Due to lack of evidence it dropped the case against Kenyan President Uhuru Kenyatta. All three have called on fellow African countries to leave the Rome Statute.

"What they are saying is that we have created this court but it cannot try us or members of our government. On that ground alone, the ICC will remain the only option because it excludes immunity," Musila told DW. According to him, there is a lack of a culture of respect for human rights on the continent. This, he said undermines the efficacy of the African Court.

Ruto and Kenyatta wave to crowds
Cheering crowds welcomed Kenyan President Kenyatta back to Nairobi after his pre-trial hearing in The Hague.Image: Reuters/Noor Khamis

When DW asked its Facebook followers what they thought of the court, many comments echoed those of the legal experts. "Our leaders know no justice. They only follow their own interests and care little about their own poor people," Inous from Togo wrote. Ibraima Sori Djalo from Guinea-Bissau wrote: "I don't believe that the African Court for Human and People's Rights can prevent human rights abuses in Africa. They happen every day in addition to armed conflicts and many other crimes. Meanwhile African states and the AU stand by and do nothing."

Other DW Facebook followers like Bahati Madaki Bama from Tanzania however applauded the idea of a stronger African Court. "It would be a good idea because the ICC is out of Africa and that means it's not for Africans," she wrote.