The ICC was formed after the 2nd World War following the infamous atrocities and crimes against humanity committed by Adolf Hitler, Mussolini and Milosevic in Europe. The bloodshed and waste against children, women and men was unbearable and the International community agreed that such draconian incidences should never happen again, hence the formation and the institutionalisation of the court to save humanity. Upon attainment of independence, African leaders signed, ratified the statute and made it part and parcel of their domestic laws without coercion because no one could bear the sight of another round of bloodshed. Every State agreed to the dictates, rules and regulations of the International Criminal Court. However, this paper was motivated by the recent development and clamour by African leaders to leave the ICC yet ironically Africa’s history and recent incidences illuminate the direct opposite. This development raises questions about impunity, sovereignty and universal jurisdiction, and the ability of African institutions to prosecute international crimes .
Current and incumbent rulers have promoted and institutionalised a culture of impunity and a lack of accountability. This has cushioned many from liability which entails that in post-independence Africa democracy is sacrificed on the altar in the name of unity yet innocent people are dying at the disposal of draconian governments. Apparently, we have gross and pervasive human rights abuses in Burundi, the Central African Republic, Mali, Sudan, Zimbabwe and Uganda at the disposal of the leadership. Be it Sate or non-State and it is unfortunate that those calling for withdrawal from the International court have a dire human rights background and those advocating continuous membership to the court are heavily criticised as Western puppets and anti-patriotic. Pan-Africanism should never be abused to justify and shield dictatorship and oppression.
Since, independence Africa has been torn in between democratic retrogression and economic decomposition due to vast human rights abuses which also attribute to reduction in Foreign Direct Investment and economic shrinking. In Burundi, currently the President has provoked widespread violence due to his insatiable need to extend his constitution because suddenly he feels that ten years are not enough hence Lord Acton (1887) laments that power corrupts and absolute power corrupts absolutely. Should Africa justify atrocities through Ubuntu/Pan-Africanism and give a blind eye to gross human rights abuses so as to be politically correct and to fulfil the uniform call for ‘solidarity’ whilst millions of innocent people die every day? Should people be sacrificed on the altar of ‘unity’ whilst women and children are amputated, raped and killed every day in the name of sovereignty, in this case this brings me to the question that what then is ‘Pan-Africanism, unity and solidarity’ in Africa. It is my strong belief that everyone in the International community is equal before the law, hence Uhuru Kenyatta was acquitted of all charges. It is my strong understanding that under law anyone charged of a crime is ‘innocent until proven guilty.’ If African leaders are innocent, then why are they fugitives and keep on disappearing from international and regional meetings like the recent jest by North-Sudanese President Omar Al-Bashir from South Africa?
Whilst African leaders are vehemently arguing that the ICC only targets them only, we must not forget Slobodan Milosevic and Radovan Karadic were apprehended to the court yet they were not African. On the other hand, I am of the strong belief that indictment of many African leaders is indicative of the trend and seriousness of the ongoing crimes against humanity and war crimes on the continent. Notwithstanding that the court is biased, I strongly advise that leaders must also take heed of the irrefutable evidence and charges laid against conspirators in Africa. I would like also to commend former Nigerian President and political godfather Obasanjo for adhering to the statutes of the ICC when he apprehended the former Liberian President Charles Taylor to the court upon arrival in Nigeria and this in turn saved so many lives in Sierra Leone and Liberia. I vehemently argue that it is better to sacrifice one person by apprehending him to the ICC than losing millions of innocent lives which entails true Ubuntu. For how long should Africans shy away from the truth when rivers of blood keep on flowing, for how long should Africans remain silent when our brothers and sisters are slaughtered on the altar of ’unity,’ how many more people should die and how many more criminals should walk free for Africans to live freely?. When African leaders commit crimes against humanity there must be consequences and they must adhere to international legal obligations.
Recently, two prominent African leaders announced the establishment and funding of an African Human rights Court yet the human rights conditions in both these countries are heavily contested. Moreover, who is going to enforce the regional law when apparently “The unwillingness of the African Union to censure the behaviour of rogue governments” (Themba Lesizwe, 2004:8) is stark and African leaders are the law themselves. Human rights violations remain pervasive in Africa and remedial mechanisms impotent and I assume that institutionalising the African court will take many whilst people are dying on the continent due to negligent and power hungry individuals under the misleading rubric of respecting State sovereignty and the principle of non-interference. For, example in June-July, 2015 President Nkurunziza of Burundi ignited widespread violence due to his selfishness to extend his stay in power for a third term and what the African Union could only did was to release a statement stating that this gesture was not acceptable but no robust action was taken to curb the violence or the ensure that Nkurunziza abdicates the Presidency or charged for the on-going violence. In the worst case scenario, if Africa withdraws from the ICC the realities and experiences for the ordinary people will remain in acute contrast to the stated intentions of the court. My conclusion is that Africa is not yet ready to leave the ICC. The Rome Statute makes the ICC the court of last resort in instances where national authorities are unwilling or unable to prosecute mass atrocities and war crimes (Sidiropoulos, 2015), if Africa pulls out then the whole content will plunge into an abyss. Africa let us unite and stand against wrong decisions by our leaders. Africa belongs to Africans. Siyaphambili!!!.
Tlou is a freelance Researcher and Writer specializing in Human rights, the Environment, Peace and Governance issues. He is also in possession of a BSc (Honours) Degree in Peace and Governance and a Post-Graduate Applied Conflict Transformation Certificate. He works with various NGOs in South Africa.