Democracy and International Justice- the people have spoken

Published 2nd June 2017

Last week, Zambians voted on whether they would like to remain within the Rome Statute system or not. A majority, 93.3% of those asked voted in favour of remaining with the International Criminal Court. Given the tension between the African Union and the ICC and the persistent threats of withdrawal-the significance of the results and the fact that such a process took place, cannot be over stated. It is not just a simple vote, it is actually about justice, transparency and democracy- three essential elements currently in short supply in many African countries.

The Zambian Ministry of Justice spent a reported 2 million Zambian Kwacha to conduct this vote. The Minister of Justice reportedly indicated that it was a necessary step in preparation for next AU Summit in June 2017.

The AU and the ICC have been at odds since the indictment of Sudanese President Omar al Bashir in 2009. Of the view that heads of state should be immune from prosecution during their time in office, the AU has encouraged its members not to comply with the ICC’s request for the arrest and surrender of Bashir. Since then, the relationship between the two entities has steadily deteriorated.

At almost every AU Summit in the recent past, the AU has called for its members to abandon the Rome Statute. The January 2017 Summit also included a “withdrawal strategy” as per its title, however the contents interestingly enough, provided options for further engagement with the ICC.

Be that as it may, for as long as the ICC continues to exercise its mandate without fear or favour, including following evidence that leads to the indictment of senior government officials and heads of state – the AU will continue to agitate for withdrawal.

The AU’s grievances with the ICC extend to various other issues including AU’s belief that the ICC is targeting African leaders whilst it leaves powerful western nations to wage war and engage in crimes against humanity. The AU also has problem with unfettered powers of the permanent United Nations Security Council members when it comes to the ICC. The controversial United Nations Security Council (UNSC) referral is a major bone of contention. The UNSC referral allows the UNSC to refer situations to the ICC. The permanent 5 members have the power to veto referrals, yet three of those 5 are not members of the Rome Statute. Granted, some of the AU’s concerns are valid, for example, the UNSC referral is highly problematic, but the AU should be encouraged to constructively engage instead of trying to orchestrate a mass African withdrawal.

It is too soon forgotten that African states were integral to the creation of the ICC. African states also fought to protect the independence of the prosecutor during the negotiations that eventually provided the final text of the Rome Statute. Today the African block is still the largest regional block of signatories to the Rome Statute, which could positively influence and change the ICC from within. The AU seems to overlook this untapped potential.

The AU has noble objectives including ensuring that African institutions can grapple with African problems, however dismantling the only permanent international justice mechanism without establishing a viable alternative is toying with access to justice and could result in the promotion of impunity.

The ICC was designed as a court of last resort, meaning it can only intervene when a member state is unwilling or unable to tackle crimes committed. Thus, building strong domestic capacity to investigate and prosecute international crimes in Africa is vital and complementary to the vision of the ICC. Building regional courts that have criminal jurisdiction is also an important endeavour, but it is far from being a viable option at the moment.

In light of this, the AU, and the African leaders themselves should be encouraged to be constructive in their dealings with the ICC, instead of engaging political stratagem that will only harm the average citizen when all is said and done. It is the citizens, not the leaders in power, who will suffer should a justice vacuum be created by leaving the ICC, hence why the consultative process embarked on by Zambia is crucial.

The Zambian vote naturally reminds one of South Africa’s ill-conceived and hasty attempt to withdraw from the ICC without following the Constitution and proper parliamentary procedures including public consultation. The comparison is disturbing and uncomfortable when one considers that solid constitutional democracy that forms the backbone of the nation and the state of governance today.

Having recently commemorated the 54th Africa Day, it is time African leaders prioritise the needs of the people instead of focusing on shielding themselves from prosecution. Justice, transparency and democracy in Africa are under threat, but the example set in Zambia, provides hope.

** This article originally appeared in the Star Newspaper on 1 June 2017 under the title Zambia’s shining example

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