African countries withdrawing from the International Criminal Court (ICC) will mean the lack of accountability on the part of leaders – one of the biggest reasons for Africa’s continued underdevelopment, failing states and civil wars – will continue.
In Africa, the protection of corrupt, murderous, dictatorial leaders is often more sacrosanct than the rights of ordinary citizens, the public interest and the country's well-being.
In fact, impunity is one of the main reasons for instability in Africa. There are seemingly no consequences for autocratic behaviour, corruption or stoking ethic divisions to stay in power.
The ICC, however flawed, offers ordinary Africans a real alternative to hold their leaders accountable and stop them getting away with the most brutal of crimes.
Since independence from colonialism, the judiciaries in many African countries have been controlled, suppressed or manipulated by corrupt presidents, leaders and governing parties.
Continental and regional African judicial tribunals, courts and commissions, such as the African Court of Justice and Human Rights, are often dismissed, ignored or laughed off by leaders.
In 2010, Zimbabwean President Robert Mugabe led a charge to suspend the SADC Tribunal, because it had ruled in 2007 and 2008 that the expropriation without compensation of white Zimbabwean farmer Mike Campbell's land was illegal. Campbell had approached the regional tribunal because he was refused the right to approach Zimbabwe courts.
The SADC Tribunal was set up to ensure member states adhere to the regional bloc’s SADC Treaty, which obliges members to act “in accordance with human rights, democracy and the rule of law”. However, in 2012, SADC leaders decided citizens could not lay complaints against their own governments at it.
The ICC’s mandate is not to replace national courts. It only intervenes when they refuse to, or are unable to, prosecute war crimes, genocide and crimes against humanity.
At its national policy conference last week, South Africa’s governing ANC resolved that the country should withdraw from the ICC. Last week, the ICC found South Africa had a duty to arrest Sudanese President Omar al-Bashir when he was in the country in 2015 to attend the AU summit. However, South Africa was spared sanctions.
Bashir has been sought by the court since 2009 for alleged human rights abuses in Darfur.
South Africa is a signatory to the Rome Statute, which created the ICC in 1998 at the inaugural conference in the Italian capital. Africa, with 34 countries, is the largest regional grouping within the 124-member ICC.
At the AU summit in January, leaders took a non-binding decision calling for African countries to leave the ICC en masse.
Last year Burundi and the Gambia announced they will withdraw their membership of the ICC, because they said the ICC only focused on prosecuting African leaders. Nine of the 10 cases of the ICC since it was launched involved former African leaders.
Kenyan President Uhuru Kenyatta had been indicted by the ICC for crimes against humanity related to violence following the 2007 elections where more than 1?000 people died. However, the case collapsed because the Kenyan government refused to co-operate.
The ICC took its own initiative to open the now collapsed case against Kenyatta. Ironically, all the African cases at the ICC, except Kenya, were either brought by African governments or by citizens.
The fact is that African countries are unequal in international law.
The British analyst George Monbiot puts it: “If you run a small, weak nation, you may be subject to the full force of international law; if you run a powerful nation, you have nothing to fear.”
The US, China and key industrial countries have not signed up to the ICC, and their leaders and citizens are not subject to the ICC’s jurisdictions.
That is unfair.
Industrial countries' security, intelligence and police forces often operate across the borders in Africa and developing countries, something which developing and African countries cannot do.
US-led industrial countries' coalitions, for example, have used their power in the UN to push through invasions in developing countries whose regimes are perceived to be anti-Western in Iraq, Libya and elsewhere, under the guise of defending human rights, but ironically support equally evil regimes in other developing countries if they are pro-Western. Such decisions are often based purely on protecting commercial interests.
The ICC, as it stands, might be without important industrial countries, but it is crucial for ordinary Africans, who have very few avenues, to hold their leaders accountable. Currently, many of the most brutal crimes against their own people are by African and developing country leaders.
African countries are the majority bloc in the ICC and can, in partnership with other developing countries and sympathetic industrial countries, influence the international law to become more equitable, fairer and transparent.
African countries can, for example, push the ICC to initiate action against Western leaders, individuals and organisations involved in human rights abuses.
Fatou Bensouda, from the Gambia, and the chief prosecutor of the ICC, was appointed in 2012 following strong lobbying from African countries to have an African in the position.
The former ICC chief prosecutor, Luis Moreno-Ocampo, was accused by some African leaders of concentrating on the prosecution of Africans.
The AU, regional bodies and individual countries must respect, defer to, and enshrine the independence of their own judiciaries, tribunals and prosecuting authorities.
Most importantly, every African citizen must have the right to approach regional, continental legal bodies and international ones, such as the ICC, if their leaders and governments act with impunity.
Finally, African continental and regional organisations must jettison the principle of “sovereignty” which respects African leaders, rather than ordinary citizens, which gives African leaders and governments the licence to brutalise their citizens without any consequences.
Finally, given currently that Africa’s own domestic, regional and international judiciaries are mostly being manipulated by leaders and governments; and African leaders are protected by their peers and regional and continental organisations, the ICC remains, as former UN secretary-general Kofi Annan put it “the continent’s most credible last resort for the most serious crimes” of leaders, governments and non-governmental strongmen.
- William Gumede is chairperson of the Democracy Works Foundation. His most recent book is Restless Nation: Making Sense of Troubled Times.