IS THERE AN ALTERNATIVE TO THE INTERNATIONAL
Resulting from the shameful episode in March when our government helped to sneak Sudanese president and wanted war criminal, Omar al-Bashir, out of South Africa instead of arresting him, the ANC now wants to dispel any doubt about their position by withdrawing as a signatory to the Rome statute that established the International Criminal court after certain, unspecified, processes are followed.
This is one of the most significant resolutions adopted by the ANC national general council meeting held at Gallagher Estate in Midrand last weekend which could have serious long term consequences for the country.
The reasons given by the ANC for this decision are that the ICC has lost its way and is not being used for the purpose for which it was created and then, of course that too many African counties and heads of state are being investigated
Whose fault is that? Non African countries such as Afghanistan, Columbia, Georgia, Honduras, Iraq and Ukraine are currently being investigated and Slobodan Miloševi? the former president of Yugoslavia was indicted for charges of genocide, war crimes and many others however, he died before the court case was concluded.
Even if the ICC is biased, which I very much doubt, considering that the Prosecutor of the International Criminal Court Fatou SENSOUDA is from The Gambia, Judge Joyce ALUOCH from Kenya is First Vice-President, Sanji Mmasenono MONAGENG is from Botswana, Chile EBOE-OSUJI from Nigeria, Antoine Kesia-Mbe MINDUA the Democratic Republic of the Congo. The prosecutor and four out of eighteen judges are from Africa surely there can be no bias.
But what is the alternative?
- African leaders hold up the much vaunted African Court of Human Rights but side step the question about Africa having the resources for such a court.
A fatal flaw with the African Court Protocol is the amendment adopted by the 23rd AU Summit which not only gives immunity to sitting presidents but also to other senior government officials during their tenure in office – this may extend for almost 40 years
What happens when a head of state commits genocide, war crimes or any other gross violation of human rights? All they have to do is extend their term of office and remain in power until death. Good examples are Robert Mugabe and Yoweri Kaguta Museveni the Ugandan politician who has been President of Uganda since 29 January 1986.
African heads of state have the habit of doing this, President Zuma justified this practice during President’s question time in the National Assembly on 6 August 2015 when he said “For example, there have been developments in other countries wherein one of the leaders (indistinct) all of us because he felt there are things he still needs to do, he went to the people and asked for a referendum and the people said, ‘you stay’.
“That’s democracy. And then he has gone to Parliament to enact a law to make that legal because the people said so. That has just happened in Rwanda.”
In other words in Africa a President or senior civil servant is above the law, including President Zuma, but what about the South African Bill of Rights, clause 9.1 of the constitution, “All are equal before the law……”?
As of April 2014, just 27 of the African Union’s 54 members had ratified and are parties to the African Court of Human rights compared to the 34 who have adopted the Rome Statutes ratifying the ICC.
- Some people hold the African Peer Review Mechanism (APRM) as one of the means to hold African governments accountable.
The APRM was initiated in 2002 and established in 2003 by the African Union in the framework of the implementation of the New Partnership for Africa’s Development (NEPAD). The objectives of the APRM are primarily to foster the adoption of policies, standards and practices that lead to political stability, high economic growth, sustainable development and accelerated sub regional and continental economic integration through experience sharing and reinforcement of successful and best practices, including identifying deficiencies and assessment of requirements for capacity building
However as of April 2015, only 35 of 54 African countries had signed up. Of even greater concern is that after 12 years only 17 countries, not quite half of the signed up members but only 31.5% of African countries had completed their first reviews. In other words countries will receive a voluntary review once every twenty five years.
- As a signatory to the Open Government Partnership which was launched in 2011 to provide an international platform for domestic reformers committed to making their governments more open, accountable, and responsive to citizens. There are 65 participating countries in the OGP.
In all of these countries, government and civil society are committed to working together to develop and implement ambitious open government reforms. Members of OGP, participating countries must endorse a high-level Open Government Declaration, deliver a country action plan developed with public consultation, and commit to independent reporting on their progress going forward.
The South African action plan is based on the targets identified in the National Development Plan (NDP) the five year national priorities which are derived from the assessment of South Africa’s achievement of the national vision as stipulated in the Constitution. That is the achievement of a non-racial, non sexist, united, democratic South Africa.
However, the government’s recent threats of introducing a State Media Council, the propensity of government Cabinet Ministers to attack decisions of the Judiciary as well as their failure to enforce compliance to the rulings of the Courts together with their indifference to the recommendations of the Public Protector there are hardly an indication of Open Government.
Combine this with the rejection of the NDP by the SACP and COSATU, the ANC’s alliance partners, what are you left with? Nothing!
- In 1992 the SADC Tribunal was established to promote and protect human rights, democracy and the rule of law.
In one of its first cases, Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe the Tribunal decided in 2007 and 2008 that the government of Zimbabwe may not evict farmer Mike Campbell from his land, and that farm evictions per Amendment 17 of Zimbabwe’s constitution amount to de facto discrimination of Whites. As a result of this decision Zimbabwe withdrew from the tribunal and it was disbanded in 2010.
A new protocol for its revival was adopted in 2014 but it only allows the tribunal to hear interstate disputes and not grievances from individuals and civil society.
President Zuma has signed this protocol, therefore indicating that the ANC agrees with it. However not enough SADC states have ratified the revised protocol and therefore has not come into force not that it would have any effect on the lives of ordinary citizens whose human rights have been infringed upon.
Over and above the above mentioned bodies the African Union and its’ agencies and projects require outside funding for the Pan African Parliament, its Peace Keeping Force and the proposed African Capacity for Immediate Response to Crises (ACIRC) task force and many more.
No matter how well intentioned all these various mechanisms may well be the major problem remains one of resources. Africa may have “outstanding legal minds” but what about the financial resources required to make it effective?
The African Union (AU) was conceived in 1999 – and launched in 2002 – in a bid to unify the continent with the aim of creating an integrated, prosperous and peaceful Africa. Thirteen years later the organisation boasts 54 members and yet it is still reliant on donor funding.
According to the AU’s draft consolidated budget of more than R6-billion ($523.8million) for 2016 its main development partners “will remain key to the financing of programmes and projects of the union. In 2016, partners are expected to contribute $362-million, representing 69% of the total budget, mainly to fund programmes as per signed agreements.
Currently South Africa is one of the biggest contributors among the AU’s members, but more is expected. Six countries South Africa, Nigeria, Algeria, Angola, Egypt and Libya are expected to cover 60% of the AU budget, but there are calls for the ‘big six’ to pay more to assist the smaller poor African states. Currently only 67% of member states’ contributions were received, this would affect the implementation of the activities financed by the member states.
It is interesting to note that the international and development partners that contribute 70% of the AU budget are mainly those colonial, capitalist neo-liberal countries, such as Canada, Sweden, Germany, the Netherlands, the United States, the United Kingdom, Spain, China and Turkey, as well as organisations such as the World Bank and European Union.
Anybody who opposes the ICC because of its colonial, capitalist links should consider where 70% of the AU funding comes from and remember that the problem with relying on foreign donors is of course the adage “he who pays the piper calls the tune”.
Yes, there are problems with the current ICC such as three permanent members of the United Nations Security Council who are not signatories to the Rome Statute and therefore not subject to its jurisdiction being allowed to refer cases to the court. China, Russia and the USA who are not signatories as well as any other nation in this category should not be able to refer cases to the court.
Whatever is wrong the ICC should be corrected from within its’ structures because once you are out you no longer have any influence.
Following the al-Bashir debacle and South Africa’s support for other dubious characters leaving the ICC would surely mean the end to South Africa’s ambitions of being a permanent member of the UN Security Council.
The simple fact is that Africa, South Africa and the ANC in particular have been found breaking the rules and therefore want to change them and move the goal posts.
As usual it is everyone else’s fault………………
Until next time,
This newsletter is published by Clive Hatch former Leader of the Opposition in the Mpumalanga Provincial Legislature and former DA Provincial Leader. These views are my personal views and do not represent those of any other person or organisation.