By Chief Charles A.Taku*
The 50th anniversary of the African Union, formerly the organization of African Union has come to highlight the profound crisis afflicting Africa. I flirted with two potential titles for this article prior to settling on the present one. The two were “Africa: A continent fights for its soul” and the second was “Africa: The ghost of an imperiled specie”. Both were appropriate although I settled for the present title because it more appropriately identifies the specific problems I set out to discuss within this brief article.
Africa, one may reasonably assert, is sick, very sick indeed. I had in past contributions written about some of the problems afflicting Africa. In one of editions of this news media I wrote and warned that through the abusive, selective and discriminatory application of international law, Africa was systematically losing its sovereignty. I warned then and now, that much of Africa was a ward of international law and that the neo-colonial puppets who presided over the destiny of much of the continent were there to facilitate the exploitation, enslavement and dehumanization of Africa.
In another, I challenged the continent rhetorically the question in the title “Africa at 50: Anything to celebrate?” In answer to my own question, the provided a resounding NO. Indeed there was nothing to celebrate. I respectfully beg to ask the same question with regard to this anniversary of the AU (OAU) and respectfully hereby provide the same answer. The reasons are many. I will provide some of the most glaring even as my focus will be on the political and neo-colonial uses of the law as an instrument of subjugation and oppression.
It can no longer be reasonably disputed that the political and economic space on the African continent is closed to a majority of the people on what I had in other occasions described as the troubled continent. The paucity of democratic institutions, the perpetuation of criminal gangs in power in a majority of African states as Heads of State, the despoliation and rape of the economy to the detriment of the majority and the culture of impunity that makes armless men, women and children cattle fodder for blood thirsty despots to feed on, has been used by neo- colonial interests to transform the continent into a testing ground for new concepts in international criminal law, international humanitarian law and international human rights law. Even as I resent the exclusive targeting of Africa by the International Criminal Court in a manner suggestive of unpardonable prejudice in which Africa and Africans are portrayed as inherently criminal sub humans, I must hasten to concede, that the failure of Africa to put in place institutions and policies that can reasonably afford Africans protections that meet international standards provides an alibi for these humiliating interventions. As Guinea pigs of international criminal jurisprudence, Africans will continue to cry out to a world, in particular, the neo-colonial West to come to their rescue oblivious of the fact that the discriminatory and selective targeting of Africa is a deliberate policy to enslave, and control the vast resources of Africa, considered by many to be the very curse that makes the humanity of Blacks in general and Africans in particular, a sub standard humanity.
Only in the last decade of the unjustified focus on Africa, most of the French neo-colonial vassal states in West Africa at the cost of the blood of armless men, women and children changed the constitutional provisions on term limits in the supreme laws of their nations to eternalize the reign of terror presided over by French neo-colonial puppets. The international community paid lip service to the tenets of democracy, fundamental human rights and civil liberties in condemning these acts of egregious violations only shortly thereafter, to extend their support to these dictators. The support provided includes weapons with which more egregious violations are perpetrated resulting in senseless loss of lives and property.
For example, the French Government embraced and supported the suppression of term limits introduced in Republique du Cameroun, Gabon and Togo, recognized and supported massively rigged elections organized under these criminal manipulations of the constitutions in these neo-colonial vassal states at a colossal loss of human and material resources.
The African Union whose anniversary we celebrate, until recently was considered a dictators’ club. However for some time now, there have been some remarkable institutional improvements within the AU structure whose positive effects have and is being felt. The AU intervention in Somalia has been hailed as one remarkable act that has once more rekindled the hopes and aspirations that informed the creation of the AOU in 1963 in many within the continent and beyond. Compared to the UN intervention in the Democratic Republic of Congo, French and UN intervention in the Cote D’Ivoire and NATO and US destruction of Libya, the AU intervention in Somalia has proved skeptics and neo-colonial pundits and apologists in and out of the continent that at 50, Africa can reasonably provide solutions to African problems. The fact that the African Union has succeeded in Somalia where American prior intervention failed, and where the ICC has not intervened, and with no humanitarian intervention or responsibility to intervene, has greatly enhanced the prestige of the AU, justifying the AU’s well conceived position against disruptive, unjustified and unprincipled interventions in African conflicts. The AU has not lost sight of the fact that the ICC intervention in Central African Republic rather than bring justice, peace and reconciliation, has led to an escalation which has brought the country on the brink of chaos and collapse. The AU is now left to deal with this chaotic situation while the ICC explores the possibility to getting involved in another conflict situation without the means of handling the fall out when and if it occurs.
The much applauded efforts of the AU in Somalia must be re-enforced with the AU taking a strong stand towards the expansion of political space in Somalia and member states, the establishment of sound democratic institutions that permit the organization of free and fair elections possibly organized by a continental structure established within the AU, the establishment of continental research institutes, intercontinental economic co-operation, the establishment of credible institutions for the promotion, protection and defense of human rights and the setting within national jurisdictions and at the continental level credible judicial organs to lead the fight against impunity. If these and much more was carried out, the barefaced hypocrisy of Western governments including those that have rejected the ICC jurisdiction over their own citizens in using the ICC as an instrument to advance their neo-colonial agendas will fall into irrelevance.
The ICC primarily is perceived in Africa as a valuable institution to fight impunity worldwide. The rationale giving the Security Council of the UN the power to made referrals and deferrals underscored the world reach of this very important court in combating international criminality, in particular crimes that threaten world peace and security. Massive, widespread and systematic crimes and war crimes have that potential. Such crimes I concede have been perpetrated in Africa and must be vigorously investigated and prosecuted in cases where the territory in which the crimes are perpetrated evince an irreversible reluctance to prosecute or the legal institutions in these countries are too weak to handle the cases. The ICC should not intervene sparingly in the internal conflicts, in particular of potential political nature, of member states, nor should the Security Council use the process at the ICC to bolster its largely political interventions. Through its largely politically motivated referrals, all in Africa, the Security Council of the UN has dented the image of the ICC. In particular, when the military and political objectives for which the referrals were made ended, neither the Security Council nor some of the super powers driving its agenda felt compelled or have any further impetus to support the ICC to investigate and conduct credible prosecutions. Their lack of interest stems from the fact that the Prosecutor in investigating the situations in some of these countries may do so in a manner that may conflict with the political motives for which the referrals were made.
The intervention in the ongoing conflict in Sudan, it has been admitted by even the most ardent supporters of the ICC was an error; so also Libya and Ivory Coast. But then these were the faults of the political organ of the UN which is the Security Council. Be that as it may, the Office of the Prosecutor in the exercise of its prosecutorial discretion in making determinations about who to investigate and whom to prosecute, committed the error in conducting shoddy investigations, selective and discriminatory prosecutions which far from protecting the interests of victims as alleged is largely perceived to support the victors or the side on which the forces of the super powers sided in the conflicts. In this regard, the mercenaries, terrorists, criminal gangs and vengeful mobs in Libya have extended the culture of impunity from within Libya which NATO and US handed over to them to most of Africa and beyond, while their counterparts in Cote D’Ivoire are exacting more blood on innocent armless people on the watch of the ICC and the International Community.
Many critics of the position of the AU opposing the ICC exclusive targeted interventions in Africa have consistently failed to even articulate the reasons for that opposition. They fail to even acknowledge the right of African member states and the AU to seek accountability from an institution to which they belong.
The situation in Kenya portrays the ICC in bad light and sends chills in the spin of many African state parties that their turn may soon come. The threshold for intervention was set so low and the confirming decision relied on evidence that cannot stand serious scrutiny even in national courts. It was evident from inception that the Chief Prosecutor Moreno Ocampo relied on politically motivated manipulations of some civil society associations to build his case. The elections in Kenya exposed the political agenda not so much of the Prosecutor as such but of members of the civil society who supplied the Prosecutor with suborned evidence. By their published accounts in Kenyan papers and elsewhere some of these individuals could not hide their faces and their political intrusion in the judicial process.
Writing about the civil society in Kenya in the May 19 edition of The Standard on Sunday P.14 distinguished Lawyer and columnist Charles Kanjama asked a question which is on the lips of many people in Kenya and properly Africa concerning what passes for civil societies currently: “The elements of the growing crisis of Kenya’s civil society are several. One is a crisis of identity. Are they part of us, or are they foreign agents?”
Following from this question, one can readily discern the dysfunction in which the civil society in Africa functions. Many of these civil societies are financed by foreigner organizations with clear political objectives. Working in the field in conflict zones in Africa, it was easy to ascertain that the massive resources received by some members of the so-called civil society were used purely to advance obvious partisan political objectives.
It was always difficult to distinguish some of them from political party activists. Very often some of them directly incite the crimes that they received foreign money to fight against. The result is that little of the money obtained in the name of assisting victims of war reached them. Instead some of these activists spent time and money fighting partisan political battles, suborning witnesses and constituting themselves into witness protection experts. The impact of this meddling in the judicial process has been mass defection of witnesses and the politicization of the judicial processes making a total mockery of justice.
A sizeable component of the African civil society is corrupt, inept, gullible and have become the conduit through which neo-colonial agendas are introduced and implemented within the continnt, hence one of my suggested titles, Africa: A continent fights for its soul. As the recent election in Kenya has shown the African masses have discovered some of these mercenary civil society activists for what they are and have roundly rejected their political posturing and gullibility.
With this not very impressive record, what can Africa do to move the continent definitely in the right direction and towards economic prosperity? I have suggested some of the ideas in this article. In addition to these proposed solutions, the African Union must lead the way by organizing a Pan African Congress in Arusha Tanzania where the Africa Diaspora, African Intellectuals, scholars, scientists, Professionals and Business communities and the AU to discuss and debate the future of Africa in a frank and transparent manner. The outcome of this congress should lay down the basis of the establishment of a solid Pan African Reservoir of knowledge, resources and roadmap to reclaim the continent for our generation and generations unborn.
*Lead Counsel ICTR, SC-SL, ICC. Chief Taku is also the author of Contextual Foundations Of International Criminal Jurisprudence: Selected Cases An Insider’s Perspective