Does the ICC case against Kenya's leaders undermine international peace and security?

13 November 2013

On 5 November 2013, the United Nations Security Council (UNSC) began handling the request to defer the International Criminal Court’s (ICC) cases in the Kenyan situation. The request, which was submitted on 1 November for consideration by non-permanent members Rwanda, Togo and Morocco under instruction from the African Union (AU), relates specifically to the cases against Kenya’s President Uhuru Kenyatta and his Deputy, William Ruto.

Kenyatta and Ruto (together with Kenyan journalist Joshua Sang) face charges related to the violence that erupted after Kenya’s December 2007 elections, in which over 1 100 people died. Ruto and Sang’s trial began in September 2013, while Kenyatta’s trial is due to start on 5 February 2014 after a third postponement.

In October this year, the AU held an extraordinary summit at which the relationship between the ICC and Africa was discussed. Central to the discussions was the fact that all cases currently before the ICC are from African countries, including the indictment of two sitting heads of state. In its 12 October 2013 decision, the AU called for the Kenyan cases to be deferred and asked that the UNSC provide feedback on the deferral request by 12 November 2013, the date on which Kenyatta’s trial was scheduled to start.

Given that Kenyatta’s trial has been provisionally moved to February 2014, it remains to be seen whether the AU will still expect the UNSC to make a decision on deferral immediately. As things stand, the UNSC agenda for November does not include a session to discuss the deferral request. However, this is not to say such discussions will not be held, as the programme of work can be updated at any time.

Even if heard, despite support from Russia and China, the likelihood of the deferral being granted is slim, given that the United States, United Kingdom and France, who all hold the power to veto resolutions, insist that the ICC’s postponement of Kenyatta’s trial to February next year was sufficient. The views of the five permanent members of the UNSC notwithstanding, it is essential to assess the merits of the deferral request itself.

Article 16 of the ICC’s Rome Statute, in terms of which deferral requests can be made, statesthat ‘No investigation or prosecution may be commenced or proceeded with … for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the court to that effect ….’ Chapter VII of the UN Charter empowers the UNSC to take measures to ‘maintain or restore international peace and security’ if it has determined ‘the existence of any threat to the peace, breach of peace or act of aggression’.

First, it is clear that Article 16 is intended for use in exceptional circumstances. Indeed, the UNSC has not, to date, deferred any ICC investigation or prosecution. The question now is whether continuing the court processes would undermine international peace and security. The AU’s request stresses that Kenya’s leaders need to focus on the ongoing fight against terrorism, especially following the attack on Westgate mall in September. They contend that having the president and deputy president of the country on trial jeopardises this.
This is not a widely supported view. Notably, Kenyan human rights organisations, in a letter to the president of the UNSC, stated that conflating the two issues would undermine accountability. The organisations emphasised that deferral on this basis would actually further embed impunity, which lends itself to susceptibility to terrorism.It cannot be denied that terrorism is a serious threat in Kenya and the Horn of Africa region. However, the UNSC has to decide whether this suffices as a basis upon which to allege that continuing the trials will compromise international peace and security. Indeed, counter-terrorism and international criminal justice are bedfellows in that they both seek to address serious crimes that have an adverse effect on global peace and security, and where the two intersect a balance must be struck. One should not be preferred over the other.

Second, the AU claims that by virtue of their positions as president and deputy president of Kenya, the two accused should not, for the duration of their terms, be prosecuted. The AU argues that doing so would undermine Kenyatta and Ruto’s official duties. If the deferral were granted on this basis, it would contradict Article 27 of the Rome Statute (which denies immunity for heads of state and other senior government officials). Significantly, it would mean the deferral would have to be renewed every 12 months for the duration of the Kenyan presidential term of five years. Presupposing that Kenyatta runs for a second term and wins, the deferral would have to be extended for a further five years.

This, as noted by Fergal Gaynor, the legal representative of victims in the case against Kenyatta, would further unduly delay any justice for the victims – assuming that Kenyatta is indeed found guilty. Similar sentiments have been voiced by civil society, including the Kenyan Human Rights Commission and the International Center for Policy and Conflict. Importantly, this argument of the AU contradicts Article 2(6) and Article 143(4) of the Kenyan constitution. Article 143(4) specifically prohibits the president’s immunity from criminal prosecution for ‘crime[s] for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity’. The deputy president enjoys no immunity from prosecution under the Kenyan constitution.

Third, the AU contends that the criminal justice reforms undertaken in Kenya sufficiently allow for national prosecutions of those responsible for the post-election violence. While, on the face of it, this is in line with the ICC’s role as a court of last resort and is thus commendable, it is not a basis for deferral. Indeed, this was the primary basis of Kenya’s own deferral request made directly to the ICC in 2011, which the Court rejected. Supposing the criminal justice reforms were considered in making the decision, the argument ignores the fact that despite these reforms, there have been few prosecutions and convictions for serious crimes committed during the post-election violence. More importantly, if the ICC is to reconsider its jurisdiction in this situation, the Kenyans who stand accused by the Court are unlikely to be prosecuted domestically.

Further, in early September, Kenya’s parliament passed motions aimed at withdrawing Kenya from the Rome Statute and repealing the country’s International Crimes Act, which, among other things, provides a basis for the prosecution of ICC crimes in Kenya. This move would mean that not only are the president and his deputy free from prosecution for international crimes, but so are all Kenyans. This goes against the spirit and purpose of international criminal justice and is a blatant denial of recourse to justice for the victims of international crimes.
These are the key matters that the UNSC must grapple with in deciding whether or not to defer the ICC cases against Kenyatta and Ruto. At the end of the day, this will be put to a vote. A resolution on deferral can only be passed if at least nine countries are in favour and none of the five permanent members use their veto. That is unlikely, but not impossible.

Ottilia Anna Maunganidze, Researcher, Transnational Threats and International Crime Division, ISS Pretoria

Like Botswana, more countries should take steps to tackle the crime of aggression

08 May 2013

On Monday 15 April, Botswana became the first African country to sign and ratify amendments to the Rome Statute of the International Criminal Court (ICC) that could pave way for the prosecution of the crime of aggression. In his speech ahead of the signing of the ratification document, the President of Botswana, Seretse Khama Ian Khama, reiterated the country’s commitment to international criminal justice in general and the ICC specifically in fighting impunity globally. He said that international criminal justice should not be impaired by the status of the accused and that domestic and international prosecutions are the best mechanism to respond to international crimes.

This is a welcome development and evidence of the impact of the Global Institute for the Prevention of the Crime of Aggression and the Principality of Liechtenstein’s international ratification campaign, which promotes the ratification and implementation of the Kampala amendments on the crime of aggression. The crime covers the planning, preparation, initiation or execution of an act of aggression by a person in a leadership position. This act of aggression must also constitute a manifest violation of the Charter of the United Nations (UN). Acts of aggression are any use of armed force by one state against another without the justification of self-defence or authorisation by the UN Security Council.

For African countries, the importance of allowing the ICC and its member states to prosecute the crime of aggression cannot be overstated. Indeed, Africa has historically been a victim of aggression (in various forms). In 1998 in Rome, when the Statute of the ICC was adopted, and in 2010 at the Review Conference of the Rome Statute of the ICC in Kampala, African states parties actively sought the inclusion and definition of the crime of aggression. However, ratifying these amendments is significant not only to Africa but to all countries – several of whom have suffered as a result of the aggression of other states.

It should be noted that in order for the ICC to begin exercising jurisdiction over the crime of aggression (at the earliest in 2017, as agreed upon by states parties to the Rome Statute in Kampala in 2010), 30 countries must ratify the amendments by 31 December 2015. Botswana, Estonia, Liechtenstein, Luxembourg, Trinidad and Tobago, and Samoa have led the way by being the first six countries to ratify. However, 24 others will need to ratify before the deadline. While the end of 2015 might seem a far-away date, the reality is many states parties to the Rome Statute must be urged to ratify the amendments urgently. Countries like Belgium, Germany, Ghana, Lesotho, Senegal and South Africa have already begun the ratification process – albeit at different levels. It is hoped that these and several other countries actively working on the ratification will do so swiftly. There are three reasons why countries should ratify the amendments:

• Ratification would serve as a first step to promoting international peace and the rule of law.  The express prohibition of the illegal use of force contained in the definition of the crime of aggression and the threat of criminal sanction could prevent future illegal uses of force. Also, states that ratify would effectively protect themselves against aggression by another state and would publicly pledge not to commit aggression. This would be in line with the promises made at Nuremberg that never again would those who commit the crime of aggression do so with impunity following the conviction of senior German officials for waging aggressive war during the Second World War.
• The criminalisation of the crime of aggression serves to protect human rights. By their very nature, acts of aggression result in gross human rights violations and the violation of international humanitarian law. Those who often end up counting the cost of aggression are the most vulnerable of society, particularly women and children.
• Ratification reflects continued support for the ICC and international criminal justice. While the 122 countries that have ratified the Rome Statute have already shown their commitment, ratifying the amendments would serve to bolster this commitment.

Nevertheless, the inclusion and definition of the crime of aggression in the Rome Statute is not without its challenges and detractors. Indeed, at the time that the Rome Statute was being considered, the issue of whether or not to include the crime of aggression was the subject of immense debate. Countries like the United Kingdom and the United States, who prosecuted aggression at Nuremberg, were ironically the ones who argued against its inclusion. Their concerns related to legal constraints on their ability to mount military or humanitarian interventions. Further, it was (and has been) argued that the crime of aggression is an issue of a political rather than a legal nature and should thus remain the remit of the UN Security Council, not a judicial body such as the ICC.

A large contingent of states (from Africa, the Arab world, Europe and those that are non-aligned) supported its inclusion in the Rome Statute. The resultant statute incorporated the crime of aggression, but did not define the crime and put off the ICC’s exercise of jurisdiction over this crime until such a time as a definition was agreed. This definition was agreed upon in 2010 and can be seen as a compromise between the two divergent views on the crime. However, the ability of the ICC to exercise such jurisdiction was postponed until at least 2017.

The adoption of a definition on the crime of aggression and the inclusion of additional war crimes in the Rome Statute was a giant leap for international criminal justice. It was a further affirmation by states of their commitment to international justice, peace and security. The crime of aggression, unlike the other offences under the Rome Statute, specifically targets national leaders who are in a position to effectively exercise control over or direct the political or military action of a state. The prosecution of this offence by the ICC will ensure accountability for the most serious illegal uses of force against other states. The journey, however, has been arduous and could remain so if states do not follow through on their affirmation by ratifying. Indeed, states should be seen to actively commit to international criminal justice rather than merely making declarations. Without action, these declarations may be viewed as nothing more than empty promises.

Ottilia Anna Maunganidze, Researcher, Transnational Threats and International Crime Division, ISS Pretoria

A warlord faces justice at the ICC after six years on the run

 27 March 2013

 

On Tuesday 26 March, Bosco Ntaganda, a former rebel leader accused by the International Criminal Court (ICC) of committing war crimes and crimes against humanity in the Democratic Republic of Congo (DRC), appeared for the first time before the court. The appearance came a week after Ntaganda handed himself over to United States (US) embassy officials in Kigali, Rwanda and requested immediate transfer to the ICC. Through the cooperation of US and Rwandese authorities, Ntaganda was sent to the ICC on 22 March. While the reasons for his surrender are unclear, what is apparent is that Ntaganda has chosen to face justice at the ICC instead of continuing life as a fugitive.

The significance of this, for the ICC and international criminal justice in general, cannot be underestimated for a number of reasons. First, Ntaganda – after almost seven years on the run – is the first person for whom the ICC issued an arrest warrant who has voluntarily surrendered himself to the court. Eleven others for whom arrest warrants have been issued for situations in the DRC, Côte d’Ivoire, Libya, Sudan and Uganda remain at large.

Second, the ICC received ready cooperation from the US and Rwanda. Both countries have not ratified the Rome Statute of the ICC and thus have no direct obligations to the court. Despite this, their decisions to cooperate with the court and swiftly transfer Ntaganda to The Hague are indicative of support for international criminal justice.

Third, Ntaganda’s surrender comes at a time when the DRC is embroiled in ongoing conflict in the eastern provinces of the country. Ntaganda is said to have been integral in stoking the conflict in various ways from mid-1990 to date. However, it should be borne in mind that the crimes for which Ntaganda is presently charged relate to his activities in the eastern DRC region of Ituri (north of the war-torn Kivu provinces that border Rwanda) between 1 September 2002 and the end of September 2003.

For his alleged involvement in the Ituri conflict, Ntaganda – a Rwandan-born Congolese citizen – is charged with seven counts of war crimes, including the enlistment and conscription of children under the age of 15, the use of children under the age of 15 to participate actively in hostilities, murder, attacks against the civilian population, rape and sexual slavery, and pillaging; and three counts of the crimes against humanity of murder, rape and sexual slavery, and persecution. During the time these offences were supposedly committed, Ntaganda was allegedly serving as the Deputy Chief of the General Staff of the Patriotic Forces for the Liberation of Congo (Forces Patriotiques pour la Libération du Congo, or FPLC), the military arm of the Union of Congolese Patriots (Union des Patriotes Congolais, or UPC), a rebel movement in the eastern DRC. In this capacity, it is believed that Ntaganda reported directly to Thomas Lubanga Dyilo. Lubanga Dyilo, currently in detention, made news in 2012 when he was the first person convicted by the ICC for the enlistment and use of children to actively participate in hostilities.

In addition to his involvement with the FPLC, Ntaganda – nicknamed ‘The Terminator’ – has over the years fought for several rebel groups. In the early 1990s, Ntaganda fought with the Rwandan Patriotic Army and from 2006 he was linked to the National Congress for the Defence of the People (Congrès National pour la Défense du Peuple, or CNDP) led by Laurent Nkunda. Ntaganda is also one of the key figures allegedly behind the November 2008 Kiwanja massacre in which approximately 150 people were summarily executed in under two days.

Despite all this, Ntaganda was integrated into the Congolese army following the attempt at demilitarisation and reintegration of rebels from the CNDP, and the Congolese government made no effort to arrest and transfer him to the ICC. At the time of his surrender, Ntaganda had defected from the army and had been linked to another rebel movement, the M23, from early 2012. It is believed that the splitting of the M23 in February 2013 following infighting prompted Ntaganda to flee from the DRC to Rwanda.

Despite several promises (and having previously cooperated with the ICC), the Congolese government did not arrest Ntaganda. Interestingly, the DRC itself has over the years issued arrest warrants for Ntaganda for allegedly committing, among other offences, torture, murder, illegal detention and arbitrary arrest. These warrants of arrest and those issued by the ICC were not executed, which further frustrated those who wanted to bring Ntaganda to justice.

The failure by the Congolese government to arrest Ntaganda and transfer him to the ICC – as it had done with Lubanga Dyilo – highlighted one of the major challenges facing the court: that it does not have its own police force and so relies on support and cooperation from Rome Statute states parties to make arrests. Ntaganda’s decision to surrender himself to the court is significant because it shows that the ICC can secure indictees for trial if they voluntarily surrender, even to non-state parties that are not bound by the ICC’s statute.

There are three ways in which an ICC accused can come before the court. First, when a summons to appear is issued, the accused can voluntarily present him or herself to the ICC. Second, when an arrest warrant is issued, the authorities in a particular state can apprehend and surrender the accused to the ICC. Third, when an accused for whom an arrest warrant has been issued hands him or herself over to the court. Given that when arrest warrants are issued this is done precisely because it is doubtful that a suspect will voluntarily appear, the third option – which Ntaganda recently took – tends to be the least likely. More so for ICC cases, which tend to focus on people in positions of power because of the prosecutorial strategy of going after those most responsible for international crimes.

Ntaganda`s appearance in the dock at the ICC on 26 March sends a strong message to perpetrators of international crimes that they too may face justice one day – whether they are delivered to court after arrest or because circumstances push them to voluntarily surrender. While this is only the beginning of the proceedings against Ntaganda, it is a highlight at a time when the ICC continues to struggle with securing the arrest of individuals like Ugandan Joseph Kony of the Lord’s Resistance Army and President Omar Hassan al-Bashir of Sudan.


Ottilia Anna Maunganidze, Researcher, Transnational Threats and International Crime Division, ISS Pretoria

Original posting: http://www.issafrica.org/iss_today.php?ID=1615 

Uganda Coalition on the International Criminal Court (UCICC) Annual Publication

Uganda Coalition on the International Criminal Court (UCICC)  

The Forum Magazine 2012


"This issue contains analyses of both critical and pro ICC nature. It is inclusive of different opinions, perceptions and misconceptions surrounding the work of the ICC, since the time of establishment.

This issue is most important for views on the work and impact of the ICC and outstanding considerations are:

(1) What have been the roles of the ICC as a world court since the time of establishment?

(2) The impact of the ICC since establishment.

(3) The common challenges faced by the ICC since the time of establishment.

(4) The different perceptions and misconceptions about the ICC as being another form of neo-colonialism.

(5) The future prospects of the ICC as a world court for future fair delivery of justice and the elimination of impunity.

The forum endeavours to uncover all minds of the researchers, academia and Civil Society Organizations. It is an opportunity for expression of thoughts geared towards the creation of a platform that is essentially beneficial to both the national and International community."

Download the PDF: http://www.ucicc.org/attachments/article/22/The%20Forum%20Magazine%20Issue%20No.%203,%202012%20%20Final%20Copy.pdf

African Efforts to Close the Impunity Gap

ISS Paper 241: 

Lessons for complementarity from national and regional actions

Max du Plessis, Antoinette Louw & 

Ottilia Maunganidze

The position taken by the African Union towards the ICC creates the impression that African states are resistant to international criminal justice. This paper argues that the reality is quite different. The continent provides many examples of international justice in practice. A review of selected domestic and regional efforts suggests that a richer understanding of the Rome Statute’s ‘complementarity’ scheme is developing – one involving states, regional organisations and civil society working to close the impunity gap. Such actions are giving effect to the notion that while the ICC can provide justice through a few highly publicised trials, for justice to be brought home in any meaningful way, domestic action is essential.  

The publication of this paper was made possible with the support of the Governments of the Netherlands and Norway.

Download the full paper:  http://www.issafrica.org/uploads/Paper241.pdf

Power and Prosecution - Pouvoir et Poursuite

Kai Ambos  & Ottilia Anna Maunganidze (Eds.)

Power and Prosecution - Pouvoir et Poursuite

Challenges and Opportunities for International Criminal Justice in Sub-Saharan Africa - Défis et Opportunités pour la Justice Pénale Internationale en Afrique SubSaharienne

Göttinger Studien zu den Kriminalwissenschaften - Band 24

This book contains some of the papers that were presented at the fi rst meeting of the newly formed African Expert Study Group on International Criminal Law/ Groupe des Experts Africaines en Droit Pénal International held in September 2011 in Brussels, Belgium. The group was established under the auspices of the Multinational Development Policy Dialogue (hereinafter ‘MDPD’) and the Rule of Law programme of the German Konrad-Adenauer-Stiftung (‘KAS’) in 2010 modeled on the successful sister group in Latin America. This latter group was originally founded as an expert group to monitor the implementation of the Rome Statute of the International Criminal Court (‘ICC’) in Latin America within the framework of cooperation between KAS’ regional Rule of Law Programme and the Department for Foreign and International Law of the Institute for Criminal Law and Criminal Justice of the Georg-August-Universität Göttingen in 2002. 

The newly formed African group consists of judicial experts with both academic and practical background from various parts of Sub-Saharan Africa. The importance of such a group for the African continent cannot be overestimated. Africa plays a vital role in international criminal law and justice, both as an active player at the ICC and at the regional and national level. As for the group’s composition and outreach, the aim is to broaden regional representation and further consolidate membership. In 2012, the group will meet in Nairobi, Kenya to deal with topics surrounding the ‘Potential for the domestic prosecution of international crimes in Africa.’ 

Topics for future meetings abound given the multi-faceted African legal and political practice regarding international criminal justice in general and the ICC in particular. The group should in particular monitor the recent international or transnational criminal justice developments at the regional African level as well as relevant national developments. (Excerpt from the introduction by Kai Ambos)

Published: 2012

Book launch: http://www.kas.de/bruessel/en/events/52492/

Download: http://webdoc.sub.gwdg.de/univerlag/2012/GSK24_ambos_power.pdf 

Purchase Softcover, 202 S.: 26,00 Euro
(ISBN 978-3-86395-078-1)  http://www.univerlag.uni-goettingen.de/content/list.php?q=Kai+Ambos&cat=result&details=isbn-978-3-86395-078-1

Implications of Another African Case as Mali Self-refers to the ICC

Ottilia Anna Maunganidze & Antoinette Louw,  Researcher & Senior Research Fellow,  Transnational Threats and International Crimes Division, ISS Pretoria

On 18 July 2012, Fatou Bensouda, the prosecutor of the International Criminal Court (ICC), released a press statement confirming receipt of a referral of the situation in Mali by the country’s interim Minister of Justice. In terms of the 13 July 2012 referral letter, the government of Mali alleges that gross human rights violations and war crimes have been committed in the country, especially in the northern region. The alleged crimes include the summary executions of soldiers, rape of women and young girls, killing of civilians, the recruitment of child soldiers, torture, pillaging, enforced disappearances, and the destruction of property (including government buildings, humanitarian installations, religious establishments and gravesites). The prosecutor indicated that her office would conduct preliminary investigations into the alleged international crimes in accordance with the Rome Statute of the ICC.

The referral is the first received by the new prosecutor since she took office on 15 June this year. Notably, Mali is the fifth African country that has formally requested the ICC to investigate crimes in its territory and, if formal investigations are instituted, will be the eighth situation before the ICC – all of which are in Africa. This additional African situation comes at a time when the ICC is under fire for not opening investigations in other parts of the world. Some critics even go so far as to contend that the ICC is targeting Africa. 

As the new prosecutor begins her tenure at the ICC, it is widely agreed that one of her office’s main challenges is to ensure that the court rebuilds its legitimacy, especially in Africa. To do so the ICC must open formal investigations into situations outside the continent. However, this is easier said than done, as the additional self-referral by Mali – an African country – shows. Although self-referrals do signify support for the ICC by the governments concerned, they are not without their own controversies. For the most part, self-referrals now elicit more scepticism than compliments for the ICC. This has been the case with the self-referrals made by the governments of Uganda, the Democratic Republic of Congo (DRC) and the Central African Republic (CAR), as well as the Côte d’Ivoire case, which – although not a member of the ICC’s Rome Statute – requested the ICC’s intervention after accepting the court’s jurisdiction. In all four cases, allegations are that these requests were intended to cripple government adversaries rather than end impunity for grave crimes, or that the cases represent `victor`s justice` rather than real justice for all sides to the conflict. 

Similar criticisms are likely to be levelled at the Mali referral for a number of reasons. Politically, the stakes for control over a new government are now high. The violence that grips the country followed a coup d’état staged by mutinying soldiers. The coup, which began on 21 March 2012 when soldiers seized the presidential palace, state media and other buildings, forced then president Amadou Toumani Touré into hiding and eventually led to his resignation on 8 April. Consequently, the country’s constitution was suspended. The situation in Mali prior to and after the coup has been tense. At present, an interim government – comprised mostly of technocrats – that was formed following the resignation of the president is running the country. This situation has been exacerbated by the Tuareg insurgency in the north of the country, where rebels have taken control of most of northern Mali and declared the independent nation of Azawad. The self-referral could thus be characterised as an attempt by the interim government – which is weak and in search of support and legitimacy both locally and abroad – to put down the rebellion in the north, and eliminate opposition from those who might seek to destabilise a new government.

The political context aside, the Mali referral nevertheless signals welcome and continued support for the ICC and its goals in Africa. First, Mali’s decision to refer shows that the government would like to see an end to the commission of international crimes within the country and that it believes the ICC can help in achieving this. Second (and unlike any of the other self-referrals), the Mali referral has the support of the West African region: on 9 July 2012 ECOWAS’ Contact Group on Mali (composed of Benin, Burkina Faso, Côte d’Ivoire, Liberia, Niger, Nigeria and Togo) recommended that the situation be referred to the ICC. The seven-country contact group also called for the formation of a government of national unity, having already (on 15 May) released a statement accusing the military junta of blocking the return to civilian rule and threatening to impose sanctions.

With political support from both Mali and ECOWAS in place it is now up to the ICC to proceed in a manner that mitigates the criticisms that have been levelled at the other self-referrals. A procedural and transparent approach that emphasises the requirements of the Rome Statute at every step will assist in this regard. For example, if the ICC initiates formal investigations in Mali, it will be doing so in line with article 17 of the Rome Statute that allows the court to intervene only if the government in the country concerned is unwilling or unable to take action. Noting that Mali’s current government is an interim administration, it is unlikely to have the capacity to prosecute the alleged perpetrators itself even if the political will to do so exists. Thus a referral by Mali signifies commitment by the state to end impunity and paves the way for future cooperation with the ICC in respect of investigations and possible arrests. (It is worth noting that this is an important consideration that lends support to cases coming to the ICC via self-referrals: the court lacks its own police force, which means it relies heavily on the cooperation of the states in which it works. Practically, self-referrals are understandably an attractive option for the ICC.) 

The ‘willing and able’ test referred to above forms part of the ICC Office of the Prosecutor (OTP)’s obligations under article 53 of the Rome Statute to determine whether there is a reasonable basis to proceed with an investigation into the situation in Mali. To do this, the prosecution must determine whether the ICC has jurisdiction, whether the matter is admissible, and whether proceedings would be in the interests of justice. If the OTP decides to proceed, it is imperative that investigations cover all sides to the conflict from the outset in order to offset accusations that self-referrals result in victor’s justice. These procedures, and their outcomes, need to be publicly explained by the OTP. This is neither an unreasonable requirement nor something foreign to the work of a prosecutor. At the national level prosecutions do not occur in a vacuum, with local courts similarly being vulnerable to abuse by political leaders determined to sideline their opposition. The onus is therefore on the OTP to carefully manage the selection of cases and subsequent investigations and prosecutions. Doing so will help ameliorate negative perceptions about the ICC.

Although it’s still early days, the OTP’s statement on the Mali self-referral demonstrates an awareness of the sensitivities around these types of cases. In her statement Bensouda outlines clearly the origins of the referral, and the steps, in terms of the Rome Statute, that the OTP will now take to determine whether a formal investigation can be launched. This approach is a good start and should assist the ICC in building its legitimacy despite the addition of yet another African situation to the court’s caseload.
 

Malawi's Stance on al-Bashir is in Line with its International Obligations

On Friday 8 June 2012, the cabinet of Malawi resolved not to host the next African Union (AU) Summit because the AU insisted that all Heads of State - including Sudanese President Omar Hassan al-Bashir - be invited to attend.

Al-Bashir is wanted by the International Criminal Court (ICC) on charges of war crimes, crimes against humanity and genocide allegedly committed in Darfur. The decision by Malawi's President Joyce Banda not to allow al-Bashir into her country because of Malawi's international obligations has led to widespread reaction throughout Africa.

Malawi's Vice-President Khumbo Kachali made the announcement on Friday 8 June that Malawi would not submit to pressure from the AU to invite Sudanese President Omar al-Bashir to the upcoming AU summit. Kachali stated that, 'much as Malawi has obligations to the AU, it also has other obligations (and) the Cabinet has decided not to host the summit'.

It has been widely reported that President Joyce Banda's decision not to invite al-Bashir and the pursuant decision by the Malawi cabinet are informed by the country's efforts to regain international favour. This kind of speculation could have political implications for Malawi, especially for its relationship with the AU going forward. The political issues surrounding this decision have unfortunately overshadowed the legal dimension of the issue. Of importance in this regard are the United Nations (UN) Charter, the Constitutive Act of the African Union, and the Rome Statute of the ICC. All these instruments, which are binding on Malawi, have specific provisions aimed at promoting global peace and the rule of law, and ending impunity.

First, the UN Charter enunciates as one of its principles the need to maintain international peace and security. Malawi, as a member state of the UN, is bound to its decisions. Under Article 103, the UN Charter provides that obligations under the Charter prevail over any other obligations if there is a conflict. It should be noted that the situation in Darfur was referred to the ICC pursuant to UN Security Council Resolution 1593 in 2005. The UN Security Council invoked its powers under Chapter VII of the UN Charter and provisions in the ICC Statute to oblige the Government of Sudan and 'all other parties to the conflict in Darfur' to cooperate with the ICC (which includes the arrest and surrender of suspects to the court).

Second, one of the primary objectives of the AU is to achieve peace and security in Africa. Specifically, the Constitutive Act of the AU provides a legal framework for the continental organ to fight impunity. Articles 4(h) and (o) of the Constitutive Act authorise the AU to intervene in member states to stop war crimes, genocide, crimes against humanity and ultimately to prevent impunity. However, it should be noted that this intervention is often political.

Last, but certainly not least, is the fact that Malawi's decision is in line with the country's responsibilities under the Rome Statute of the ICC. As an ICC member state, Malawi is obliged to cooperate fully with the ICC in its investigation and prosecution of war crimes, crimes against humanity and genocide, and where requested to arrest al-Bashir (and any other suspects wanted by the ICC) if he visits the country and surrender him to the court. Malawi's decision to arrest and surrender al-Bashir to the ICC should he enter its territory is not unique. Indeed, Malawi's stance is not the first, nor shall it - hopefully - be the last in Africa.

In April 2009, al-Bashir - although invited - decided not to travel to South Africa to attend President Jacob Zuma's inauguration. This decision came after South African authorities and civil society took steps to exercise the country's domestic and international criminal law obligations with regard to al-Bashir. Following similar actions by governments and African civil society organisations, other states have found diplomatic solutions to either avoid al-Bashir's visits or move the venue of important meetings to the territory of non-states parties.

Notably, al-Bashir cancelled trips to Uganda in 2009 and 2010 over fears that he would be arrested, and also did not attend Ugandan President Yoweri Museveni's inauguration in May 2011. Furthermore,
al-Bashir did not attend the ceremony of the 50th anniversary of the independence of the Central African Republic (CAR) in December 2010. Both Uganda and CAR are states parties to the ICC Statute and referred the situations in their respective countries for investigation and prosecution at the ICC. Later that December, al-Bashir cancelled his trip to Zambia (also a state party to the ICC Statute) to attend the International Conference for the Great Lakes Region following international protest. Instead, Sudanese foreign minister Ali Karti and minerals minister Abdel-Baki Al-Gailani attended the summit. Other African countries like Botswana have made it clear that al-Bashir is not welcome.

Nevertheless, since the arrest warrant was issued in 2009, al-Bashir has been able to travel to several countries that are obliged to arrest and surrender him to the ICC, including ICC member states Chad, Djibouti, Kenya, and Malawi in 2010 and 2011. It is worth noting that following his first visit to Kenya in August 2010, civil society action resulted in the Intergovernmental Authority on Development (IGAD) moving its October 2010 special summit on Sudan from Nairobi to Addis Ababa, Ethiopia to
avert a potential diplomatic quandary over al-Bashir's attendance. Further, civil society was in 2011 able to secure a warrant for his arrest from a Kenyan High Court, thereby preventing subsequent visits.

It is clear that African states are divided on the al-Bashir issue. This is despite AU decisions in 2009, 2010, 2011 and January 2012 in which the AU called on all its member states not to cooperate with the ICC in respect of al-Bashir's arrest warrants. The AU argues that, as a head of state, al-Bashir enjoys immunity and should therefore not be prosecuted while in office. The AU also contends that arresting al-Bashir would not be in the interests of peace and would undermine its ongoing efforts to negotiate a peaceful settlement between Sudan and South Sudan.

Despite the AU's decisions on al-Bashir, the facts of the Sudanese president's trips noted above show that some African states have chosen to abide by their domestic and international legal obligations rather than the AU position. These countries, some of which have vowed to arrest al-Bashir, are acting consistently with the rule of law requirements of international criminal justice. However, others abide by the AU decisions even though this means flouting the rules of the ICC.

Interestingly, some countries like Malawi have shown a shift in opinion. In October 2011, before the death of Malawi's former President Bingu wa Mutharika, al-Bashir was able to travel to that country for a regional economic summit. However, with the change in government, the stance in Malawi on international criminal justice has also significantly shifted. But is it enough?

The fact that al-Bashir has not yet been arrested and surrendered to the ICC is evidence that for international criminal justice to succeed, countries, especially ICC states parties, must do more than take principled positions. They must be ready and able to apprehend people indicted by the ICC. It is the lack of full commitment to cooperating with the ICC that led the court's outgoing chief prosecutor Luis Moreno-Ocampo to request the UN Security Council to consider calling on all UN member states and regional organisations to carry out the arrest warrants for al-Bashir and other indicted Sudanese officials. It remains to be seen whether the UN Security Council will oblige and what implications such a move will have.

Malawi should be applauded for its principled and legally correct position on al-Bashir. At the same time, the AU's determination to bring together all heads of state, especially those directly involved in continental conflicts, is understandable and in line with its chief mandate to promote peace and security. Thus moving the summit to a non-state party to the ICC is arguably the right result under the circumstances. However, it is unfortunate that once again peace and justice have been set up against each other in such a polarising manner. It will serve the interests of peace, justice and the rule of law if African leaders are proactive in finding solutions that are both diplomatic and not in breach of international law.

Ottilia Anna Maunganidze is a researcher in the Transnational Threats and International Crime Division of the ISS www.issafrica.org

Cry my beloved continent...

I remember the first time I saw raw images of war crimes & crimes against humanity... what I saw then cannot be erased, what I feel today cannot be undone... it is as if finally coming face to face with the crimes I work daily to end awoke in me a deeper understanding of why peace and justice are so important. Which brings me to an issue that never ceases to irk me... the seemingly blase attitude of African heads of state to the realities that Africans are facing every day... and continued disrespect for both peace and justice. There is so much chaos in Africa, yet the heads of state will sit & discuss a bunch of theoretical propositions. Don't get me wrong, its worth talking about "economic integration", but it's an ideal we may never realise *stares at Europe*. We have bigger problems than trying to mirror European trends. We have war, impunity, bad governance and a general lack of respect for the rule of law and human rights. Yet our "leaders" are meeting in Addis Ababa, Ethiopia this week to primarily discuss economic integration. Issues of peace, security and justice are likely to be discussed on the sidelines. There is a glaring absence of sessions to discuss justice on the agenda. In fact, you can be forgiven for believing that as far as African leaders are concerned, justice is a non-issue. They will spend their week in air conditioned halls pretending like all is peachy across the continent. They will waste yet another week talking abt economic integration! Considering most African countries rely on donor funding for their budgets anyway, I dare ask: Whose "economy" are they proposing to integrate exactly? But, like I always say... People often get the presidents they deserve. We (the people of Africa) like to "sit back" & let raging megalomaniacs do what they wish THEN (& only then) do some of us "uprise". These "leaders" are our products. Most of them ride on the coattails of misplaced support. Most of them - self-imposed additional terms aside - are people who we allowed to seize power. And where we did not, somehow we still find it in ourselves to "at least" respect them. For what? For plundering our nations resources? For systematically violating human rights? For corrupt (and generally just bad) governance? If we paid as much respect to the basic values of human rights, good governance & rule of law, as we do presidents... Who we let govern us is an indictment on us. Autocracies do not "just happen". We, let's face it, give them the space to thrive. Today, someone somewhere is being tortured to death... tomorrow it could be you. Give voice to the voiceless, legs to limbless... you are not human if you do not respect human rights. You are not human if you do not respect human rights.

Why International Criminal Court's work is so significant for Africa: Cote d'Ivoire investigation

*A little late posting this... but better late than never I suppose*

A last refuge for justice


October 12 2011 at 07:53am


At the end of September, the judges of the International Criminal Court’s (ICC) Pre-Trial Chamber III authorised the court’s prosecutor to launch formal investigations in Ivory Coast. The investigations will focus on the violence that occurred in Ivory Coast from November 28, 2010, following the release of the results of the second round of elections in which the opposition movement, led by Alassane Ouattara, was declared victorious.


The post-election violence in Ivory Coast lasted more than five months. During this period, reports of widespread murder, rape and forced disappearances abounded. As a result of the protracted violence, 3 000 people died and about one million more were internally displaced.

While relative stability has returned to the west African country, according to the UN Mission in Ivory Coast, more than 30 000 people remain internally displaced. As per ICC procedure in matters such as these, the authorisation by the court’s judges followed a request on June 23, 2011 from the ICC prosecutor, Luis Moreno-Ocampo, to begin the investigations. Ocampo’s request stemmed from an invitation by the Ivorian government to investigate crimes committed in the country.


The judges’ decision is a welcome development in ensuring that justice is served for crimes committed in Ivory Coast. However, the decision comes at a time when the African Union’s relationship with the ICC remains sour. Since 2009, when the ICC issued an arrest warrant for Sudanese President Omar Hassan al-Bashir, the AU has called on African states not to co-operate with the ICC.


Ironically, several African countries, notably Botswana, Burkina Faso, Nigeria, Sierra Leone and South Africa, have consistently voiced their support for the ICC and remain committed to co-operating with it.


Furthermore, several African states – Ivory Coast included – have shown continued support for the ICC by calling on the court to investigate and prosecute crimes committed in their countries.


The first situations before the ICC came about after states that are signatories to the ICC’s Rome Statute asked the court to investigate crimes committed in their respective countries. These states are Uganda, the Democratic Republic of the Congo and the Central African Republic.


The ICC can also claim jurisdiction over a matter in a state party if the prosecutor, of his own accord, requests authorisation from the ICC’s pre-trial chamber judges to initiate investigations. To date, the prosecutor has only exercised this proprio motu power once, in the case of Kenya’s post-election violence.

The UN Security Council may refer situations to the ICC in countries that are not state parties to the Rome Statute. The security council has exercised this power in respect of two situations before the court: those of Sudan’s western province, Darfur, and Libya.


With the recent authorisation of investigations in Ivory Coast, four of the seven cases before the ICC are the result of choices made by African states themselves. This is a clear sign of acceptance by Africans of the importance of the ICC in assisting them in meeting their obligations to end impunity and promote international criminal justice.


While Ivory Coast has not ratified the Rome Statute, it has formally accepted the jurisdiction of the ICC. The first declaration accepting the ICC’s jurisdiction was made in April 2003 by then-president Laurent Gbagbo.

In December 2010 and again in May 2011, incumbent Alassane Ouattara made similar declarations and invited the ICC prosecutor to investigate crimes committed since November 2010.

The peculiar situation in which Ivory Coast has accepted the ICC’s jurisdiction, without taking the broader step of ratifying the Rome Statute, creates an interesting precedent for the authorities of the Occupied Palestinian Territories. The Palestinian authorities are bidding for statehood and in January 2009, made a similar declaration granting the ICC jurisdiction over the crimes allegedly committed by Israel during Operation Cast Lead in Gaza. If the occupied Palestinian territories are granted statehood, the Palestinian authorities may also wish to refer the situation in their territories to the ICC. However, pending the outcome of the Palestinians’ bid for statehood, to date all the cases before the ICC are from African countries.


This African focus has led to some criticism of the ICC as targeting Africa. This criticism, however, ignores important considerations.


Firstly, 32 African countries have voluntarily ratified the Rome Statute and Ivory Coast has voluntarily accepted the ICC’s jurisdiction.

Secondly, the criticism fails to acknowledge the fact that the majority of the situations before the ICC areas are a result of self-referral by the government of the country concerned.

Furthermore, the criticism overlooks that the ICC serves as a court of last resort, which only intervenes when a state is either unwilling or unable to prosecute alleged perpetrators of international crimes.

Lastly, the criticism does not acknowledge the pervasive culture of impunity and weak criminal justice systems in Africa – factors that have contributed significantly to the continued commission of international crimes on the continent.

The ICC exists to fill the impunity gap and to ensure justice for persons responsible for the most serious crimes of international concern. The ICC is furthermore complementary to national criminal jurisdictions. The preamble of the Rome Statute stresses that the first commitment by states is to themselves “end impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes”.


Ivory Coast’s recent invitation to the ICC, alongside the ratification of the Rome Statute by 32 African states, are examples of African countries fulfilling their obligations to promote international criminal justice and end impunity.


The fact that at present, all the situations before the ICC are from African countries indicates not only that unacceptable levels of violence bedevil our continent, but it also presents an opportunity for Africa to be at the centre of developments in international criminal justice.


Even as certain African leaders criticise the ICC’s involvement on the continent, for Ivorian victims of mass atrocities, that involvement sends out a symbolically important message that their suffering has not been forgotten and that those responsible may meet justice, through the work of a faraway court in The Hague.


Ottilia Anna Maunganidze is a researcher in the International Crime in Africa Programme at the Institute for Security Studies.


http://www.iol.co.za/dailynews/news/a-last-refuge-for-justice-1.1155343

An open letter to those of whom we do not speak...

Dear Despots,



Thanks to you, I decided to stay home as the world revelled on the 31st of December 2010... Yes, a rather crap year was in its last hours (The memory of the 2010 FIFA World Cup only a blur of bad debt by then), but I couldn't celebrate... It's not that I didn't particularly want to. It just felt like I had reached my pit-stop, that I should take a breather before I embarked on what I hoped would be an amazing 2011.. Yes, the idealist in me not-so-secretly hoped that 2011 would be the year that the ever elusive world peace became a reality.. I needed my rest. No partying for me.



You might be wondering what this all has to do with you.. It's not like you care much for the plight of the ordinary person anyway... Not least one whose passion is the one thing you love most to destroy: human rights... Well, that's just it! My not-so-dear Despots.. This letter is to you..



On 31 December 2010, as many a middle-class spawn partied up a mini storm, explosions tore through Nigeria, 60 women were brutally raped by members of the military and militia in the Eastern DRC, Cote d'Ivoire teetered on the brink of collapse... As many a person partied up a mini storm on December 31st 2010, thousands across the world caught their last breath... killed, tortured, maimed... Some died physically, most died emotionally and spiritually. Their dignity stripped off them leaving them bare... As many partied up a mini storm on December 31st 2010, the world began to burn... You, the arsonists, drank your overpriced champagne and plotted your future as many lamented their present...



On 1 January 2011, the sun arose and with it a tempestuous new dawn... Ben Ali of Tunisia was toppled, Hosni Mubarak soon followed... The people had had enough... they were tired of typing out their sentiments and living at the mercy of greedy despots... they - like phoenixes risen from the ashes - got up and stayed up until their desires were met... Or were they? Tunisia and Egypt remain unstable... the rest of the region is catching fire... burning fervently and so close to the devil's cauldron... Born of violence many shall die of violence.. so the adage goes...



I have decided to stain my satellite view of Africa with red ink... it symbolises the blood that continues to be let in our people's struggle for their right to be human.. It marks the pain and suffering that no one should ever go through. The raw and gaping wounds that you have caused. It marks your legacy dear despots..



As the sun rose on 1 January 2011 I wondered: Will this decade usher in a new dawn? Will we rid ourselves of the choke-hold of our "leaders"... The sun has not set... When you're gone, dear despots... we may rest... and maybe I too will party up a mini storm on the eve of 2012... One can only dream *sigh*



Yours insincerely,



Sick & Tired

Do you know the one you love?

So... I've told myself that by the time I'm 30 I want to have visited at least half of the African countries... because I cannot continue to claim that I love this continent if I do not know it intimately... If I have not laughed with the Dinka at dusk, danced with the Masai at dawn or eaten amongst the pyramids like those from the House of Ptolemy .. I have told myself that until then, Africa will be the love I speak about, the love I hope to know, the one with whom I shall spend the rest of my life... but not that I truly love... not yet...



Yes, I am committed to my continent...It is here that I was born and it is here that I shall take my last breath... until then.. until the day I return to the bowels of the African earth, I will fight for it and help to make it strong... and when Africa has risen from its ashes and stands up high, I will creep into the shadows and watch my love shine... not because I do not want to be seen with it, but because I want the rest of the world to fall in love with it the way I have.. to see it's beautiful face and dare not lift a gun to tear it to shreds... to see it's evergreen glow and want to nurture it all the days of their life... What is love, but a selfish emotion if it is not shared? But, let me not contradict myself, I cannot claim to love Africa yet... I do not know it...



So, I ask you... do YOU know the one you "love"? Do you know their mind? their body? their soul? their essence? If you don't... how dare you claim to love them? How very dare you?

Africa's lab rats and the "miracle" gel...

I watched in utter awe the evening news the other day as some "gynaecologist" who couldn't pronounce Human Immunodeficiency Virus praised the recent "breakthrough" in HIV/AIDS science... While busy failing to focus on the camera and occasionally pouting (I suspect that might be her "pose") she praised scientists for the vaginal gel that - after three years of testing on 889 women in rural Kwa-Zulu Natal - has been found to reduces the rate of infection by just under 50% and also reduces the possibility of getting infected by Herpes... Asked whether this could double as a contraceptive, the online-graduate said "No" (not in just one word though).. she laboriously attempted to convince the South African public tuned into SABC 3 at the time that "this is great news for Africa" and that the women who took part in the study are heroes.. *cough*.. from where I sat most of the women are actually unwitting martyrs, martyrs for a scientific cause that they probably aren't even entirely committed to... No amount of publicity can rid these women of the HIV that is now in their system.. no amount... and for what? So the lovely people of San Francisco can one day have irresponsible unprotected sex with the aid of a gel? I just vomited a little inside...

Now, don't get me wrong, I have NO problem with trying to find a cure for AIDS or doing research to help prevent HIV... I am well aware that all people afflicted by this virus (and later syndrome) suffer immensely and that a cure (or at least a preventive measure) would be wonderful - not only for Africa, but the world. My problem is that African women - mostly uneducated and thus incapable of giving the informed consent requisite even in the most basic of contracts - are being used as lab rats in these scientific studies.. We might celebrate when we hear that it has a 50% success rate and thus lessens our chances of infection, BUT what of the 50% of women who were infected because they were misled into thinking they were using the "miracle" gel? Are they just necessary collateral damage? At what point will we - as Africans - wake the fuck up and just say "No"...


For the rather biased story, see: http://www.bbc.co.uk/news/health-10691353

Can the Cameras Roll Back to Darfur?

OK, first things first, my heart bleeds for the people of Haiti, after living for centuries in abject poverty they had the terrible misfortune of falling victim to a massive earthquake (AND aftershock!) that has left hundreds of thousands dead and millions without food or shelter. An atrocity occurred there.. the world needs to do something. quick.

BUT! With all the world's attention on Haiti, people seem to have taken a break from caring about the rest of the world... shame on you CNN! I direct my disdain at CNN because not so long ago it was them that made Darfur so damn popular that even Angelina "I-want-to-save-the-world-by-adopting-as-many-cute-little-poor-kids-as-I-can" Jolie went there with her poodle of a Brad and had a few "glamour" shots taken... I hear Madonna got lost on her way to Darfur and ended up in Malawi.. too late Madge, Tomb Raider beat you - along with hundreds of German couples... but let's clap hands for you, at least you watch a "news" channel!

People continue to die every single day all across the African continent (yes, not just Darfur... it just made for a catchy title)... These people are dying from preventable disease, famine, hunger, pestilence... EVERY SINGLE DAMN DAY... Do we care? I guess we can sort of say we do... if ofcourse we sit through the images of these hungry and dying Africans which are made available to us on our flat-screens just after dinner, while we drink some blood coffee... Hmmm, maybe I should sms that number.. I hear I can donate R7.50 to help feed a kid in Port-au-Prince! Done. That is it. "We care". Oh how very dare we? We sit and watch as our continent rots... and yet we jump at the prospect of "saving" people in Haiti! I'll have my hypocrite coffee with no sugar, thanks.

Lest people think that I don't care about Haiti, allow me to reiterate: I do. I get that Haiti seriously needs help and I congratulate all those who have done their bit to aid the country (which btw is the poorest in the Western hemisphere, and after this quake could very well become the poorest worldwide)... What I don't get is people who act like they care or offer a "helping hand" just so they can smile at the camera. Can the cameras please roll back to Darfur? Or did that stop being glamorous around 2006? Yeah. I thought so. Even Somalia's off our TV screens... at least now we can see "Africans" suffering elsewhere, right? It's not all that bad...

This is my kind of Africa....

Walking to work this morning, I took a deep breath of fresh air laced with the soothing smell of the flowers whose beauty has been brought to life by the early rains... with solid steps towards my destination I felt an overwhelming feeling of love and pride... I was at that very moment a 21st century woman living in her kind of Africa... the Africa they don't seem to care much about on the supper time news... I was greeted by cheery faces and the occasional "dumela" ... the sun was shyly peering through the clouds, scared to reveal itself to the world beneath, yet my heart was filled with its warmth... these are my people... this is my land... This is My Africa...

Africa.... Oh Africa... so rich, so beautiful, so warm, so welcoming... few people know or appreciate just how truly magnificent you are.. your name is mentioned and those who think they care will take a deep sigh and lament your fate; those who only want to use and abuse you and leave you dying by the wayside find themselves with a wily snarl on their faces... you are their lamb, ready for the slaughter.. they will drive you there and watch as you take your last breath... but that is not the Africa I see... that is not the Africa that flows in my veins...

....My Africa is teeming with life... as vibrant as the village crier's drum at sunset and the crow of the cocks at dawn.. My Africa never rests... it toils even as the world sleeps... In its suffering it sees nothing but hope... It is... has been... and shall forever be at the core of my being...
My Africa never gives up... after years of drought and strife my Africa is brought to life by the early rains... each flower proudly displaying itself for all the world to see.. I take it all in each day as I walk on the soil of my ancestors.. I breathe in deeply... the clean fresh air..

My Africa. My Pride. My Love.

One step at a time...

If you had asked me a couple of months ago what I wanted to do with my life... I would have answered quite convincingly that I was going to help save Africa (with or without a cape)... that I was going to start small and hope my influence spreads like a benevolent virus (oxymoron?) and have the desired knock-on effect... RIGHT.
Somewhere at the beginning of my crusade, it soon became apparent to me that not only was I NOT going to save Africa, but that Africa (or at least its despotic leaders… yes… I have generalized) was not particularly interested in being “saved”. After all, the majority of us Africans have been brainwashed into believing that not only can we NOT be saved, but that IF someone were to save us it would most definitely not be a black African… I suppose if I were a blond briefcase carrying Swede I would still think I can “save” Africa… after all, when all else has gone to sleep, money keeps talking…

The sad reality is that Africans are locked in the vicious circle of a cancerous culture of dependency … Forget the “uneven” international playing field for a brief moment… this dependency is an illness that seems to have formed part of “our” culture… so real is this syndrome that I can smell it everywhere I go, I see it at every crossroad as homeless vagrants stretch out their hands to me and beg for “just twee rand sisi… I family to feed… just twee rand”...
Back to the greater world… Africa continues to wait for the "masters" to offer them a little piece of their cake, while they hold out the begging bowl... I am frankly tired of Africa being complicit in its own subjugation. Our continent is by far the richest in terms of natural resources, and yet we allow the rest of the world to dictate our terms of trade... The sad truth though is that Africans seem rather complacent about pulling themselves out of this unfortunate quagmire… like the begging vagrants on most urban streets on this continent… Our “leaders” couldn’t be bothered about pulling up their socks and actively seeking the continent’s development, on its own terms... In the Southern African Development Community only ONE out of FOURTEEN of the member state does not depend on donor funding for the bulk of its government budget… Unsurprisingly that country is pretty much run by the west… alas, even the non-beggar is a slave… But what IS alarming is that most of these countries have extensive resource wealth that far surpasses that of some grey island archipelago off-the-coast of continental Europe... and yet most of this wealth is "owned" by foreign "investors"... Anglo-gold, Old Mutual, Delta, British Tobacco...

How can anyone even have the energy to attempt to save a continent where people have decided that aid and donor funding is the solution? I have been taught that you can only help those who want to be helped… so here I am throwing in my dirty white towel until my fellow Africans wake up and realize that they are the help they desperately need and not the help they keep seeking.

Africa needs to tap into the continent's vast potential. This continent is by far the richest... and whoever says that the West will cease to demand our resources if we unilaterally declare independence, as it were, has never looked at the fingers of many an engaged woman in the streets of Milan, Paris, New York, London and all the other little towns and cities... Has never passed by a cafe on a cold winter's night and smelt the strong aroma of Kenyan coffee and South African rooibos... of Zimbabwe's citrus in the juices...
Or late at night snuggled under a warm cotton blanket, while sending a text message from a phone whose functioning would be impossible were it not for DRC's Coltan and Zimbabwe's chrome... Or passed by an emaciated model with her fingers wrapped around a Virginia Thins cigarette as she desperately tries not to indulge in yet another bite of chocolate cake...Thank you Ghana!

Combined with the Middle East, African produces the bulk of the world's oil... the oil that turns the cogs of Western capitalism. If African countries would metaphorically and literally close the oil tap, the tables would turn as the West looks to our continent for the oil it so desperately lacks and even more desperately NEEDS.

Our problem lies in bad governance, the spirit of corruption and elitist neo-patrimonialism... cutting out bad apples won't do... the tree must be uprooted and a new one planted.

I will remain a soldier...

First thing's first... these are the ramblings of an angry pan-Africanist... yes... I am a pan-Africanist and I won't even attempt to justify my position.. So, if I may, allow me to clear my throat of 23 years of repressed bile...

Now, while I do declare my firm stance as a Pan-African, I can't help but lament the constant invocation of this "idea" by many an African leader as a means through which to escape responsibility or to rally the support of their "brothers"... This note serves as an overdue love-letter to the many African leaders who have manipulated the notion of pan-Africanism to this end... I write my "letter" weeks ahead of a scheduled conference in which African leaders are expected to "unite" against what they consider to be a western backed conspiracy by the International Criminal Court against Africa..

" Dear Omar al-Bashir, Robert Mugabe, Hissene Habre, Thabo Mbeki, Mwai Kibaki, Abdoulaye Wade, Col Muammar Gaddafi, the late (but not quite gone) Lansana Conte, Idriss Deby, Mahmoud Tandja, Joseph Kabila... and your fellow despots who continue to kill the continent with your corrupt dictatorial governance... silencing dissent with the muzzle of an AK-47 and thinking up Western conspiracies against the "African brotherhood" to allow you to suck the life out of our beautiful continent.... I can only say this to you:

"Let not the dreams of our forefathers be clouded by your neopatrimonial desires to cling to power... leave not the African continent bleeding and crying for mercy. Have you not shamed your children enough by your kleptocratic governance? Must we continue to suffer as you bloat your bellies with the innocent cadavers of many who have died because of your misrule and greed? As you pillage our continent's resources and wash your hands with the blood of Africa's children, for just one second I dare you to stop and think of the legacy you leave with us your children, your grandchildren... because of you there are so few of us who still desperately cling to delusions of a united Africa... united not in strife... but united in a vision for a better tomorrow where Africa takes its position at the head of the table... lifts itself from the ashes and establishes itself as an equal... *sigh*

It is true that our greatest enemy is ourselves... As we strive to extricate ourselves from the vicious cycle in which you have placed us... we find ourselves blaming the disarray of the continent not on our failure to stand up and fight but on you... This is what you have made us... We are only as strong as our weakest point... you have brought us to our knees...
Have you no shame? Have you no heart? We cry, but you do not hear us... Ours shall not be a violent revolt... for the pen IS mightier than the sword... as I stare into the metaphorical barrel of the gun before me I have this to say to you: I will not give up... I WILL remain a soldier until this war is won "