Hung Jury

Africa needs strong and effective national courts to come to terms with its conflict-ridden history. But the spectres of the past linger on and continue to divide the continent.

Recent coverage of violence in the Central African Republic has repeated clichés about “lawless” Africa, where warlords like Joseph Kony roam free and local authorities are too weak or corrupt to intervene. But today Africa – perhaps more than any other continent – is wrestling with the potential and limits of using law, either international or domestic, to address large-scale human rights violations.

In the wake of the African Union’s latest battles with the International Criminal Court – sparked by the ICC’s prosecution of Kenyan President Uhuru Kenyatta and Vice President William Ruto – various African elder statesmen have delivered divergent verdicts on the role of international law in resolving African conflicts. Desmond Tutu accused African leaders who oppose the ICC of “effectively looking for a license to kill, maim and oppress their own people without consequence”. His views were echoed by Kofi Annan who said, “African judicial systems are weak…Africans want justice, preferably from their own governments if they can and, if not, from the International Criminal Court”. Thabo Mbeki, however, cautioned that “Justice cannot trump peace….You can imagine what would have happened in our case, in South Africa, if the International Criminal Court was there in 1994, and somebody said arrest de Klerk and take him to The Hague. We would have refused”.

Holding their own citizens accountable

While these views highlight the dividedness of African opinion over the ICC, they also overlook a vital development: the steady increase over the last decade of domestic African legal systems addressing genocide, war crimes and crimes against humanity. Focusing on international justice, Tutu, Annan and Mbeki – all of them involved in complex peace negotiations across the continent – ignore vital reforms taking place in many African countries, which are increasingly holding their own citizens accountable.

The experiences of four countries in particular highlight these important domestic developments.

Between 2002 and 2012, Rwanda used 11,000 community courts known as gacaca to prosecute 400,000 suspected perpetrators of the 1994 genocide – the most extensive post-conflict justice process attempted anywhere in the world. While some donors and observer groups like Human Rights Watch and Amnesty International predicted gacaca would degenerate into mob justice, it succeeded in emptying Rwanda’s jails of the enormous backlog of genocide suspects, previously detained without trial, while encouraging communities to openly discuss the root causes of the conflict. In the same period, the Rwandan national courts underwent root-and-branch reform and since 2012 have started handling the cases of high-level genocide suspects extradited from abroad.

Across the border in eastern Democratic Republic of Congo – so often international commentators’ paradigmatic case of a “failed state” – a European Commission-assisted judicial reform process in Ituri district since 2003 has seen the local civilian and military courts prosecute numerous cases of war crimes and crimes against humanity, including against high-ranking members of the Congolese army. Prosecutors and lawyers in Ituri whom I interviewed in 2006 were furious that the rebel leaders, Thomas Lubanga, Germain Katanga and Mathieu Ngudjolo, had been whisked off to face trial at the ICC while their cases were still under investigation by local authorities. Officials in Ituri view it as a missed opportunity to hold these suspects’ trials in local courtrooms where violence-affected communities could witness them firsthand.

Meanwhile, in the South Kivu province of the DRC, a system of mobile gender units is currently prosecuting cases of sexual violence. A creative collaboration between international specialists from the American Bar Association and the Open Society Justice Initiative and Congolese judges, lawyers and investigators, these courts – like gacaca in Rwanda – hold open air trials in full view of local communities. The process involves “light touch” international assistance that respects and bolsters the independence of domestic actors.

While Rwanda and Congo address their internal conflicts, countries like Senegal and South Africa are currently dealing with crimes committed in other African states. In February this year, Senegal opened “Extraordinary African Chambers” within the national judicial system to prosecute the former Chadian dictator, Hissène Habré, for crimes committed in Chad between 1982 and 1990. Chad and the African Union provided more than half of the budget for the special tribunal, with the rest from international donors.

Other African states may intervene

In South Africa, the Supreme Court of Appeal is currently considering a case brought by the Southern Africa Litigation Centre and the Zimbabwean Exiles Forum against high-ranking Zimbabwean officials accused of torturing opponents of Robert Mugabe’s regime. The SALC and ZEF have argued that South Africa has an obligation to prosecute these international crimes, having implemented the ICC Statute within domestic law. The Senegal and South Africa cases highlight that, if some African states are unwilling to address serious crimes committed on their soil, other African states may intervene to do so.

These examples show that African states are using various forms of law – special tribunals, reformed national judiciaries, community-level courts, mobile units – to address atrocities across the continent. While most international discussions – including those of African elites such as Tutu, Annan and Mbeki – revolve around the ICC, we should shift our attention to these new domestic trends. International justice is an expensive, distanced enterprise that investigates crimes in a particular country then soon moves on. In contrast, domestic legal responses to mass crimes are not only substantially cheaper and highly visible to local populations but also involve the reform of national institutions, with lasting benefits for African citizens.

Read more in this debate: Abdoulaye Mar Dieye, Justin McDonnell, Jasmine Samantar.

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