MUNYAGA: Africa criminal justice court needs urgent take-off

African leaders have for sometime expressed concern that the International Criminal Court (ICC) targets them unfairly for trial over human rights violations. Irking them too has been the so called “universal jurisdiction” that a number of western countries have invoked to also try African leaders for gross human rights violations alleged to have been committed in their countries.

There is some justification about those sentiments as it is equally disturbing too that on average, Africa has by far more unpalatable record for respecting human rights.  As a result, the leaders meeting in Malabo, Equatorial Guinea in June 2014, adopted a Protocol on the amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR), to give it powers over cases of international criminal law. The leaders also called on African Union (AU) member states to sign and ratify the Protocol. The court has not been established.

But only five countries so far have signed the document and no single ratification even though the Protocol confers immunity to Heads of State and senior government officials from the power of the court, meaning the risk of impunity still hovers high in the sky even as African leaders appear to do something to address the need for respecting human rights.

If established, the court will have powers to try genocide, crimes against humanity, war crimes, unconstitutional change of government, piracy, terrorism, mercenaries, corruption, money laundering, trafficking in human persons, drug trafficking, trafficking in hazardous wastes, illicit exploitation of natural resources and the crime of aggression. In essence, the international criminal law section of the court will be very similar to a regional ICC with a greatly expanded list of crimes.

Establishing the ACJHR will be the most revolutionary action taken by African countries since the wave to fight for freedom in the 1950s. So why are the continent’s leaders dillydallying?  What is clear though is that African leaders cannot have it both ways. They cannot act with impunity and not be held to account. It is not possible in the modern era even if they could try to invoke sentiments of the ugly serpent of neo-colonialism rearing its head again.

Not respecting human rights lies at the core of many of Africa’s problems including economic underdevelopment and the tendency at times to change governments through unconstitutional means. Granted, many African legal instruments take and average five to six years to ratify but the author believes the Malabo Protocol should have been an exception to the tradition.

The need to have a human rights court is not a new one. It was first proposed by Guinea 36 years ago but was set aside as it was considered then to be “a little bit ahead of its time.”  However, ten years ago, the AU established the African Court on Human and People’s Rights (AfCHPR), which has performed very well so far. The original idea was to merge the work of AfCHPR into the ACPHR and create a court with two divisions, a general affairs section and a human rights section.

The Malabo Protocol adds a third, international criminal justice. There can be no doubt also as to the challenges ahead, including budgets and the capacity to deliver on the original mission and goals without compromising standards. The Africa of today is certainly not that of yesterday. The people are watching and are very much likely to reject something they considered out of taste.

The author fails to imagine how a law like this fails to get the 15 signatures necessary to make it come into force. Armed conflicts in Africa are not going to go away any time soon. Tragedy is that atrocities occur on both sides, from government forces and the groups of insurgents in conflicts. It is not something that the people want to continue living with without a sense of hope for redress.

The adoption of the Malabo Protocol was certainly a step in the right direction. All that African leaders need to show now is to walk the right path by ratifying it. It’s a document with highly praiseworthy principles and values that could be the envy of other regions. They include respect for human rights and sanctity of life, rejection and fighting of impunity and strengthening the AU’s commitment to promote sustainable peace and stability.

Not ratifying the Protocol sends out only one message. African leaders have priorities very different from the aspirations of their people. Sadly, that doesn’t sound like the people can sympathise with their fears. It is either the regional court or the ICC.