By Stephen Buchanan-Clarke and Rorisang Lekalake
Note: This was originally published as an op-ed by the City Press
The recent court appearance of former Chadian despot Hissène Habré is a landmark for international criminal justice on the continent. Habré stands accused of murder and torture of more than 40,000 victims during his eight-year rule between 1982 and 1990. Survivors of his notorious underground prison, known as the Piscine (“pool” in French), have recounted stories of intense brutality. These include accounts of torture by electric shock, cigarette burns, and near-asphyxiation, and of being held in rooms with decomposing bodies while suspended by their hands or feet.
The Extraordinary African Chambers of the Senegalese Courts (EAC) was established at the request of the African Union (AU) with the special mandate to try Habré. It concludes more than two decades of victims’ efforts to secure a suitable mechanism for his prosecution, and will be the first time an African state has tried another state’s former leader. Senegal denied four previous extradition requests from Belgium and the International Court of Justice (ICJ) during this period while Habré lived a life of luxury under provisional house arrest in Dakar.
The trial will serve as a test case to see whether an African-led international criminal court can fight impunity on the continent – a major concern among ordinary citizens. Recent survey data from Afrobarometer indicate that perceptions of impunity are widespread on the continent. On average, 56% of citizens in 21 countries say that officials who commit crimes “always” or “often” go unpunished. This ranges from 34% in Namibia to 76% in Kenya. Previous regional attempts to address gross human rights violations have been unable to overcome the political challenges that internationalized courts must navigate. The Southern African Development Community (SADC) Tribunal is a notable example of this failure: It was dissolved shortly after a ruling against the government of Zimbabwe in one of its first cases, Mike Campbell (Pvt) Ltd and Others vs. Republic of Zimbabwe (2008).
Habré’s appearance was marked by his refusal to cooperate fully with the court and his implication that the EAC is merely a neo-colonial kangaroo court. This allegation echoes the ongoing debate regarding the role of the International Criminal Court (ICC) in Africa. The ICC is accused of bias against African states due to the fact that all eight cases in which it is currently intervening are African. The AU has gone so far as to call on its member states to take a unified position against the ICC’s jurisdiction to prosecute sitting presidents and senior members of government in power, arguing that the court unfairly targets African incumbents while overlooking violations outside of the continent.
Any international criminal justice court must navigate a political landscape that favours stronger nations. The ICC, for example, does not have the jurisdiction to open cases against states that are not party to the Rome Statute unless referred to it by the United Nations Security Council. The court could, in theory, investigate Chinese abuses in Tibet or American excesses in Iraq, but it would require the acquiescence of the Security Council, where both countries hold veto power. However, this does not mean that its current investigations in African countries are not without basis.
Interestingly, in Kenya, where the ICC has pursued high-profile cases against several prominent politicians, including President Uhuru Kenyatta, a majority of citizens have supported the intervention since surveying on this issue began in 2010. In late 2014, six in 10 Kenyans agreed that the cases are an important tool in fighting impunity in the country, and only 35% believed the court to be biased against Kenya and other African countries. This raises the question of how attuned African governments are to their citizens’ attitudes on matters of implementing international criminal justice. It also illustrates a disjuncture between the concerns of ordinary citizens and current debates on the ICC’s role in Africa, which tend to be held at an elite level.
Calls for African member states to withdraw from the ICC have often been supported by the argument that an AU-led judicial body would be better placed to fill the role of “court of last resort” on the continent. This would provide a crucial opportunity for the organisation to play a larger role in its member states; only minorities of citizens in 17 out of 21 countries surveyed report that the AU helps their country ”a lot” or “somewhat.” If the AU, governments, and civil society are to be representative of ordinary citizens’ interests rather than elites, however, the debate on international criminal justice needs to turn its focus away from ideological and geopolitical disputes toward the victims of gross human rights violations. The AU’s insistence on exempting incumbents from prosecution would be a major obstacle to ending impunity among top officials.
Habré has little political support on the continent and has not held office since 1990, yet victims have had to wait 25 years to see him take the stand. If victims of torture and other gross violations of human rights are to see any justice in their lifetimes, the AU will need to reverse its position on the prosecution of sitting presidents. Failing to do so gives leaders who rule by force a reason to cling to power in order to escape prosecution and, as Desmond Tutu has said, “a license to kill, maim, and oppress their own people without consequence.”
For further reading on African public opinion on the ICC and related issues, click here for the full paper published by Afrobarometer.
Rorisang Lekalake is Afrobarometer's assistant project manager for Southern Africa, based at the Institute for Justice and Reconciliation in Cape Town, South Africa.
Stephen Buchanan-Clarke is a master’s degree candidate in security studies at the University of Kwa-Zulu Natal and a consultant at the Institute for Justice and Reconciliation in Cape Town, South Africa.
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