Is the establishment of an African Court with criminal jurisdiction a stillborn project? – Fellows’ seminar by Gerard Niyungeko

“The Assembly of Heads of States and Governments of the African Union adopted the Malabo Protocol in June 2014, which extended the jurisdiction of the African Court of Justice and Human Rights to criminal matters. But, almost five years later, no member state has ratified the protocol. Will this Court ever become operational and contribute to the fight against impunity on the African continent or is it a stillborn project?” This is the question posed by Gerard Niyungeko of the Faculty of Law at the University of Burundi and former President of the African Court of Human and Peoples’ Rights.

Niyungeko was outlining part of a broader research project he is undertaking at STIAS which aims to review the structure and functions of African Courts.

Niyungeko - 1 (1)STIAS fellow Gerard Niyungeko during his seminar presentation on 7 February 2019

“In recent decades, several international courts have been established, either within the African Union (AU), or within the regional economic communities and other sub-regional organisations.”

He pointed out that there is not one but four African Courts in the AU. “The African Court of Human and Peoples’ Rights established in 1998 and ratified by 30 member states is the only operational one and deals with alleged violations of human rights,” he said. “The Court of Justice of the African Union was set up in 2003 with 18 ratifications but was never operationalised. The African Court of Justice and Human Rights, which is a merger of the other two, was set up in 2008 but is not yet operational while the African Court of Justice and Human and Peoples’ Rights was created by the Malabo Protocol with jurisdiction to include criminal matters but, to date, has no ratifications and is therefore not yet in force.”

The Protocol proposes 14 crimes over which the Court will have jurisdiction, namely genocide, crimes against humanity, war crimes, crimes of aggression, mercenarism, terrorism, corruption, money laundering, trafficking of hazardous waste, illicit exploitation of natural resources, piracy, trafficking of persons and drugs, and unconstitutional change of government (unique to this Court).

The Court will include pre-trial, trial and appellate chambers. It will involve sixteen judges nominated by the states and chosen to reflect a geographical and gender balance, high moral character and expertise. They will serve non-renewable, nine-year terms.

“Sentencing options will include prison, fines and property forfeiture, as well as victim reparations but no death penalty,” added Niyungeko.

The Court will operate on a principle of complementarity to national justice.

Immunity

“The Court also establishes an immunity regime,” said Niyungeko, “which means there will be no prosecutions against serving AU heads of state or government or senior officials during their tenure. This provision was introduced to the protocol at the last minute.”

“This immunity is probably the most controversial aspect, since it has been seen by some as being created to shield African heads of state,” said Niyungeko.

“One of the reasons for the establishment of this Court was to counter the perception of abuse of the universal jurisdiction by some national judges in Western countries who prosecuted and tried African leaders or former leaders for crimes committed in Africa. Moreover, African states accused the International Criminal Court (ICC) of specifically targeting African leaders while not prosecuting leaders from other parts of the world – for example, former US President Bush and former UK Prime Minister Blair for their role in the Iraq War.”

This bias has been seen by many to be based on historical and racial issues.

“In my opinion some of the first cases prosecuted by the ICC definitely gave an impression of bias but, to some extent, this has been corrected and is less obvious now. When African states criticised the prosecution of African leaders by Western national judges, the latter did slow down.

However, the ICC is a fragile institution and, as they say, justice must not only be done but must be seen to be done – perceptions are important.”

“There is no substantial record of criminal trials of leaders while in power,” added Niyungeko.

“The immunity regime though directly contradicts the Rome Statute which established the ICC in 1998 to which many of the AU member states are party.”

“It can also clearly have potential adverse consequences – for instance that heads of state and officials will seek to remain in power to protect themselves from prosecution,” said Niyungeko. “It’s also likely to be used by the governing party to push for the prosecution of former leaders now in opposition.”

There are also issues of overlapping jurisdictions with the ICC on some international crimes.

As for the incorporation of international provisions into national law, there are differences between civil law countries (like most of the Francophone ones), and common law countries (like most of the Anglophone ones).

“On the positive side, hopefully the Court would encourage states that still have it to move away from the death penalty,” said Niyungeko.

“Generally in the African context we have good law texts – that often go beyond international standards,” he added. “The gap is in implementation.”

“There are also financial implications to the establishment of this Court,” he continued. “Any criminal court incurs huge costs which will have to be funded by African states leading to concerns about sustainability and efficiency.”

Paradox

“All of this places many African states in a paradoxical situation – they don’t ratify the Malabo Protocol but at the same time some don’t want ICC jurisdiction and have strongly pushed for withdrawal from the ICC.”

But do no ratifications reflect lack of political will?

“The pace of ratification by AU states is usually slow but nothing after five years with respect to the Malabo Protocol is notable,” said Niyungeko.

Is the establishment of an African Court with criminal jurisdiction therefore a stillborn project?

“I don’t think so, despite all the challenges noted,” said Niyungeko. “Maybe is it just a dormant project which may be woken up in the future.”

“I don’t believe the idea is quite ready for burial,” he continued. “The ICC was first mooted at the end of the 1940s after World War II but only came into being 50 years later in the wake of the Cold War and collapse of the Soviet Union. The African Court of Human and People’s Rights, similarly, was initially proposed in the 1960s when some African states became independent. So the lessons of history show it’s a slow process – often one step forward and two steps back.”

“From historical experience it is likely to happen,” he continued. “There is no miracle – it’s an idea that needs to mature. The relevant stakeholders have to use the time to push the agenda. It will be a mixture of, as yet, unforeseen historical factors and good use of time.”

“In the meantime African states should abandon the idea of withdrawing from the ICC until they are ready to ratify and set up the Court.”

Michelle Galloway: Part-time media officer at STIAS
Photograph: Christoff Pauw

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