City of Cape Town: "All (wo)men are equal... except of course when they aren't."

In a landmark finding, the South African Human Rights Commission (SAHRC) found that the City of Cape Town's "sanitation policy" violated the rights of informal settlers on several accounts. 

The City, having skimmed through the report has stated that it has "serious reservations" about the findings & intends to appeal, with no further comment. Am I surprised that Helen of the Cape & Pat "I see nothing wrong with bucket toilets" de Lille have not directly responded to the SAHRC's findings? No.

Am I surprised that in their original submissions, the City had the gall & nerve to suggest that for "those people" a toilet per FIVE HOUSEHOLDS is sufficient? No. It is after all the same city that put spikes and rocks in areas where homeless people seek shelter so they wouldn't be an eyesore to the touring haves. The very same city that sided with exploitative farmers when the farm workers went on strike demanding fair and equitable recompense for their toil.

I wonder what the City of Cape Town has reservations to:
1. That sanitation is a basic right?
2. Their policy being called racist & biased?
3. Doing their job?

I'm also curious as to whether the lovely people at the City use temporary and bucket toilets etc or is that reserved for "those people"?

It would seem that some of us are in 2014, but many, sadly, are in 1989 or thereabouts. #NotYetUhuru
Read the SAHRC report here: http://www.sjc.org.za/wp-content/uploads/2014/07/Investigative-Report-Western-Cape-Social-Justice-Coalition-9-July-2014.pdf

Bienvenue en Afrique du Sud. Nous sommes tous egaux, sauf les pauvres qui sont (pour la plupart) les noirs. Prenez un siege.

An African Court with criminal jurisdiction... but not for senior government officials

The Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights was adopted at the recently concluded 23rd AU Summit in Equatorial Guinea. The Protocol, in expanding the jurisdiction of the Court (now the African Court of Justice and Human and Peoples Rights), provides, inter alia, for the prosecution of international crimes, unconstitutional changes in government, terrorism and a variety of transnational crimes. A step forward. 

In terms of this Protocol African heads of state and government, and senior government officials will be immune from prosecution while in office. Two steps back. 

The issues of immunities remains a contentious one. On the one hand, there are those who believe that immunity from prosecution is necessary (at least for heads of state). On the other, there are those who are of the view that no one should be above the law, irrespective of what office they hold. The latter also equate immunity to the promotion of impunity.  

I ascribe to the latter thinking. The inclusion of broad immunity provisions (Article 46 A bis must be read with Article 46 B (2)) in the new court's protocol suggests one thing... at least in respect of criminal prosecution at regional level, all men are equal, but some more equal than others. 

The Protocol is now open for ratification. Once the requisite 15 countries have ratified the Protocol, it will enter into force. 

(I intend to reflect later, amongst other things, on the inclusion of unconstitutional changes in government as a category of crimes in the Protocol. Life allowing!)

(Not-so-) Fleeting thoughts on South Africa's new immigration regulations

When the new South African immigration regulations were presented for comment (earlier this year), I lambasted what I viewed then (and still do) as an attempt by SA to move towards immigration laws that can only be compared to those of beacons of inclusiveness like Australia (where lower-income South East Asians are treated as unwanted trash that must be 'processed' on neighbouring islands, where aborigines are marginalised within their own country, neglecting Australia's history and location and to whom Australia belonged before the queen's ships arrived) and Israel (whose policies today mirror those of SA prior to 'freedom'). The regulations were signed into law, despite concerns raised about the content and the lack of clarity in parts. It has been over a month since promulgation and my views have not changed especially in light of conversations I have had over the past few weeks with government officials from other countries.

Whatever SA's concerns about "contamination" fuelled by what I can only regard as institutionalised xenophobia (which manifests almost exclusively as afrophobia), there are several demerits to such strict regulations for a country that relies significantly on foreign trade, foreign direct investment and tourism. Two are most glaring:

1. In the longterm, the laws will affect SA's economy more than they will affect everyone else. Notwithstanding that these regulations won't necessarily lead to reduced inflows of foreigners. In fact, the stricter regulation of legal migration has been known to increase "illegal" migration (I put illegal in quotes because I have a problem with such terminology).

2. Some have heralded the provisions related to the movement of children, BUT the reality is trafficking in SA is largely INTRA-country, not inter. Furthermore, people who traffic children are unlikely to use legitimate channels to "export" if sodoing will involve greater risk.

Time will tell.

Africa: Until the lion learns to speak, tales of hunting will be weak

As I reflect on how the African story has been told - mostly by non-Africans through a largely negative lens riddled with bias - I wonder whether we would view our history and ourselves differently if our continent's stories had been told by others, by our own.

And so I thought, imagine a tale of hunting told by a lion… then by the hunted gazelle… then by the zebra that looked on… then by the trampled grass… and last by a gun-toting, thrill-seeking photojournalist. Imagine.

Our stories have been told largely through a colonial gaze - so we are viewed as a continent divided, of different people. Yes, society is variegated. Yes, we are different peoples. Yet, we are one people. United in ways not clearly enunciated in history books, but that can be seen in our culture(s), our traditions, our beliefs, our looks… Today, a Tswana from South Africa will argue (with the greatest conviction) that his are not the Motswana of Botswana. How unfortunate. You will hear Tanzanians say that theirs is *the* Swahili, that the people of Kenya and especially Uganda speak it all wrong.

Today, we forget that our present societies were carved out for us - built on DIFFERENCES, on seeking to isolate rather than unite, to "divide and conquer." So, today, we tend to focus on that which divides us, not the many that unites. We have become they.

Our stories have been told through the eyes of "explorers" who write of "discovering" Victoria Falls, as if Mosi oa Tunya did not thunder and splash millennia before David Livingstone heard it then saw it.

Our tales are told by journeying financiers who speak of "civilisation" based on the price of commodities they place value on. What we once shared, we now buy, borrow, beg or steal from our neighbours.

Our tales are told by warmongers who see our children through the barrel of an AK-47. Faces reflecting on the blades of machetes. Who view victory through conquests, not (necessarily) as peace.

Yet we know our stories, we know what lies beneath the facade of misinformation. We could tell these stories, but do we?

Know your story. Know your history. Only then can you begin to understand your present & what your future needs.

Know that the original Shona dictionary was written by a Dutchman & an Englishman. "Are you Shona or Ndebele?" I am always asked immediately after saying I am from Zimbabwe. "I am neither," I always reply. For I am a combination of many cultures, but owing to patrilineage I identify as Karanga, child of the roaring Lion (Shumba Charumbira). I am not a caricature created by some to simplify the intricacies of my people... Yet, I am one with the other peoples in what is now my country. What is my continent. I am, as from the day I was ushered into this world, until the day the earth will swallow me: African.

For those who do not know, Africa is a beautiful place filled with amazing people with intriguing and complex tales. Explore it (through literature, travel, engagement). Africa is more than a quickly hashed up article on the BBC "Africa" website.

Africa is Africa.

Love and so forth and so on

I recently discovered Lang Leav's poetry. It is so beautiful in its simplicity & I have found myself reading and rereading over and over again. 

One of my favourites is "Ebb & Flow," which made me reflect: 

I want a love that survives the tide, in its ebb & flow. A love that weathers storms. A love that turns the saddest lows into the greatest highs. Washes away tears. Ferociously. Passionately.

An out of breath, yet still breathing, type of love. A love whose end is no end at all. An all-encompassing love. A breath of fresh air. A love that requires no mention. A silent love that people see before they hear. Love, not lust.

❤️

DRC warlord's conviction a small step in the right direction

14 March 2014

On 7 March 2014, the International Criminal Court (ICC) found former Congolese militia leader Germain Katanga guilty as an accessory to one count of murder as a crime against humanity, and four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging).

The charges relate to offences committed on 24 February 2003 in an attack on the village of Bogoro, in the Ituri district of the Democratic Republic of Congo (DRC). Over 200 people died as a result of the attack.

Katanga – infamously known as Simba (meaning 'lion' in Kiswahili) – was found to have acted in the knowledge of the criminal common plan devised by the Ngiti militia to target the predominantly Hema population of Bogoro.

The court found that Katanga had been the intermediary between the weapons and ammunition suppliers and those who had committed the crimes in Bogoro. This ensured that the militia were able to secure military superiority.

It should be noted that Katanga, who was initially charged as a direct co-perpetrator, was convicted as an accessory. This finding by the ICC on a lesser mode of liability is significant in that it suggests Katanga was either not as directly involved as initially charged; or that the prosecution was unable to ascertain his guilt as a direct perpetrator.

“The ICC must explain the verdict to victims and affected communities in the DRC”

While the court's decision to convict Katanga has been heralded as a triumph of international criminal justice, the ICC acquitted Katanga of other charges relating to sexual crimes and the recruitment of child soldiers.

The prosecutor’s inability to prove Katanga's guilt speaks to the inherent challenges in investigating and prosecuting sexual crimes. These include high evidentiary requirements, legally and factually insufficient indictments, victims as witnesses and the challenge of holding an accused criminally responsible for the actions of his or her subordinates.

While finding that there had been children within the Ngiti militia and among combatants during Bogoro attack, the evidence against Katanga for his role was insufficient. This is not the first time that such a finding has been made with respect to the Bogoro attack. In December 2012, the ICC acquitted Mathieu Ngudjolo Chui, the leader of another implicated militia group (then Katanga's co-accused), of these and other charges due to a lack of evidence.

Given the verdict in the Chui case, there were concerns that Katanga might also have been acquitted on all charges. Despite the convictions, the prosecution's inability to sufficiently demonstrate Katanga’s guilt for the other crimes brings into question whether justice for those specific crimes will ever be seen.

Brigid Inder, Executive Director of Women’s Initiatives for Gender Justice, lamented the decision to acquit Katanga on charges of rape and sexual slavery as 'a devastating result for the victims/survivors of the Bogoro attack, as well as other victims of these crimes committed … in Ituri.' William Pace, the Convenor of the Coalition for the ICC, also expressed concern over the acquittals. According to Pace, it means that 'those responsible for the crimes of rape and using child soldiers, which continue to blight the region, have yet to be brought to justice.' He believes the ICC must increase its outreach to explain the verdict to victims and affected communities.

“Despite Katanga's conviction, conflict in the DRC continues, and members of his FRPI are still active”

The remaining two cases linked to the DRC conflict relate to crimes committed in the neighbouring Kivu provinces. This makes it important for the DRC to seek ways to bring to justice other perpetrators who were involved in other attacks in Ituri and elsewhere, through domestic legal channels. It is worth noting that the cases prosecuted by the ICC relate only to a small fraction of the international crimes committed in the DRC since 2002.

Speaking on behalf of the victims in the Katanga case, legal representative Fidel Nista Luvengika said many hope the judgment will contribute to peace and reconciliation. However, it remains concerning that the conflict in the region continues, and that members of Katanga's Force de Résistance Patriotique en Ituri (FRPI – the Front for Patriotic Resistance in Ituri) are still active.

The rebels are said to conduct routine attacks against the local population and frequently clash with the military, resulting in large displacements of people. It can only be hoped that Katanga’s conviction serves to deter further crimes, and more importantly, that it encourages domestic prosecutions of other perpetrators.

Whether this will happen remains to be seen. The 2012 conviction of militia leader Thomas Lubanga Dyilo brought no dramatic changes in the DRC in terms of criminal justice reforms or in reducing violence. This is despite the fact that in 2011, the Congolese government seemed to be on track to establish specialised mixed courts to prosecute international crimes. Also, in October last year, President Joseph Kabila committed to identifying and prosecuting anyone who organised armed groups.

This is particularly important because the ICC, as a court of last resort that complements national jurisdictions, cannot be expected to address impunity on its own. That the ICC has only been able to convict two people confirms this. The ICC can realistically deal with very few cases and only with those perpetrators who are considered to be the most responsible, and who are often in positions of power.

Katanga's conviction is an important success for the ICC. But it will only be regarded as one for international criminal justice if it encourages further efforts to bring justice to the DRC. Until then, victims in Ituri and elsewhere will continue to wait.

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

http://www.issafrica.org/iss-today/drc-warlords-conviction-a-small-step-in-the-right-direction 

Prosecuting the powerful: will justice ever be done?

28 January 2014

2013 was the year in which efforts to prosecute political leaders for their alleged involvement in international crimes seemed to reach a peak. By mid-2013, current and past presidents (and deputies) from several African countries had been indicted at international and regional level. If international criminal justice were to be measured on court rolls alone, 2013 would have been heralded as a year in which justice showed that no one is above the law. Nevertheless, little progress, if any, has been made in any of the cases. In fact, 2014 began with more delays and uncertainties around whether justice would be served in cases against the politically powerful.

The International Criminal Court (ICC) currently has seven senior politicians on its court roll.

The first, former deputy president of the Democratic Republic of the Congo and alleged president and commander-in-chief of the Mouvement de libération du Congo (Movement for the Liberation of Congo), Jean-Pierre Bemba Gombo, was indicted for war crimes and crimes against humanity committed in neighbouring Central African Republic (CAR) in 2002 and 2003.

At present, Bemba is the only suspect accused by the ICC of committing international crimes in the CAR, however there are ongoing investigations that may lead to further indictments. Bemba’s trial, which began in earnest in 2010 following his arrest in Belgium, has suffered several setbacks. These include multiple delays and allegations of tampering. In November 2013, Bemba, together with members of his defence team, was charged with offences against the administration of justice – including presenting false or forged evidence and corruptly influencing a witness to provide false testimony. This is the first such case before the ICC.

The second, Omar Hassan al-Bashir, President of Sudan, remains at large following two warrants for his arrest on charges of war crimes, crimes against humanity and genocide in Darfur. That Bashir has managed to evade justice is in large part due to the African Union (AU) July 2009 resolution not to cooperate with the ICC in arresting him.

As the first sitting head of state to be indicted by the court, Bashir has been the proverbial thorn in the side of international criminal justice. In the absence of dedicated law enforcement capacity, the ICC relies on national police to arrest suspects. This has proved difficult, if not impossible, where the AU calls on member states not to cooperate in the arrest of presidents. The AU argues that as a president, the accused enjoys immunity from prosecution, which has led to al-Bashir being shielded from prosecution.

The third, former president of Ivory Coast, Laurent Gbagbo, is on trial for his alleged role in the crimes against humanity committed following the 2010 Ivorian general elections. Arrested and surrendered to the ICC in 2011 by Ivorian police, Gbagbo is the first former head of state on trial at the ICC. His trial has, however, been riddled with delays and allegations of victors’ justice. The latter has fuelled a shift in sentiments in his country, with some people now calling for his release.

Then there are the cases against President Uhuru Kenyatta of Kenya and his Deputy, William Ruto, who are charged for their involvement in the violence that ensued following disputed elections in Kenya at the end of 2007.

The violence, which lasted two months, left over 1 100 people dead and many more injured. Kenyatta and Ruto, who were reportedly at opposite sides of the violence, formed a strategic alliance ahead of the 2013 presidential elections. This alliance is proving successful for both as they buttress their support at home on a wave of anti-ICC sentiments.

Kenyatta’s trial, which was set to commence on 5 February 2014 after several delays, will now begin at a yet-undecided date following the cancellation of the commencement of trial by the ICC. Analysts predicted that there would be several further delays to Kenyatta’s trial, amid continued criticism from Kenyan victims’ rights groups that such delays would dilute justice – if at all it would be served.

Sixth is Saif al-Islam Gaddafi, the de facto prime minister of Libya during the armed uprising of 2011. Gaddafi, who is charged both by the ICC and Libyan authorities, has been the subject of a legal battle for primacy between three institutions: the ICC, Libyan authorities and the Zintan militia who have him in custody.

His ICC defence team believes Gaddafi will not receive a fair trial in Libya and that he is likely to be executed if convicted. His Libyan trial is set to commence in February 2014. Gaddafi’s co-accused, former intelligence chief Abdullah al-Senussi was transferred to Libya for trial from Mauritania. The ICC has ruled that Libyan authorities can try al-Senussi.

Meanwhile, Senegal, working together with the AU and with the support of the Economic Community of West African States (ECOWAS) commenced the long-awaited trial of deposed Chadian leader, Hissène Habré.

Habré, who fled to Senegal after he was removed from power by a military coup, is accused of war crimes and crimes against humanity during his presidency. Significantly, Habré’s is the first trial of its kind on the African continent, where a former African head of state is being tried in another country by a court established in collaboration with the AU. Tellingly, as a former head of state, Habré is not detained in one of the lower-end public prisons; but instead at the newly renovated facilities at Cap Manuel.

It is yet to be seen whether these cases against heads of states (past and present) will amount to much.
The AU has condemned the ICC for indicting heads of state and this has made it difficult for the ICC to proceed in several cases. In its most recent decision, at an extraordinary summit of heads of state in October 2013, the AU lambasted the ICC and reiterated its stance of non-cooperation in respect of cases involving presidents. This position prompted Kofi Annan, the former Secretary-General of the United Nations, to criticise African heads of state for undermining international criminal justice and sending the wrong signal about Africa’s commitment to protect and promote human rights and reject impunity.

Annan stated further that, ‘If [African heads of state] fight the ICC, vote against the ICC, withdraw their cases, it will be a badge of shame for each and every one of them and for their countries.’
Given the challenges encountered up to now, one thing is clear: prosecuting powerful leaders is no easy task. This should not dissuade those seeking justice for international crimes; there have been important successes, such as the prosecution of former Liberian president Charles Taylor. Perhaps 2014 will be the year in which justice is finally done.

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

Originally published by the Institute for Security Studies: http://www.issafrica.org/iss-today/prosecuting-the-powerful-will-justice-ever-be-done 

No Black and “other” Africans in the Rainbow: A Nation Divided

I live and work in Pretoria, a bustling cosmopolitan metropolis that is lauded as the biggest city in Africa (at least in breadth). Bustling and cosmopolitan for the moneyed and the non-blacks, not for the masses who shuffle up and down the city’s Jacaranda lined pavements daily. I love Pretoria, the city, but not necessarily her history, or her people whose present seems so deeply intertwined with the city’s history that as a “black” African, I must defend my turf (silently, sometimes loudly). I moved to Pretoria in February 2009 to work. It was a dream come true. To work in the city with the most foreign representation on the continent, touted as cosmopolitan and “modern.”

I shared the news with those with ears. I was living with my sister and her husband at the time and both had their reservations. My sister asked me how I’d “survive” in Pretoria with all the racism and the then recent spates of xenophobia (I don’t know how to say “ear” in Setswana!). I told them that I didn’t think either of these interrelated phenomenon remained in the country’s capital, and if so that they would be extreme. I was wrong, they were right. I would soon learn that there’s little space for "black" in the rainbow, and none at all for black people from other African countries… not yet anyway. In fact, on closer inspection you’ll find that there’s not much brown either!

Fast forward almost 5 years later, I sat in my home in Pretoria, and read with an odd mix of interest, anger, shock and relief, the article by Neo Maditla on “rental racism” in Cape Town. Interest because issues of racism and classism intrigue me and South Africa is riddled with these. Anger because as a black person from outside South Africa, I have experienced similar “rental racism” and “rental xenophobia” 1550km away and in the dorps, towns and cities in-between. In 2007, I struggled to get a digs in little Grahamstown after I left university residence because few “non-liberal” white folk wanted to share with a 'darkie' and black South Africans kept querying my nationality! In 2012, after “securing” a lovely duet in a quiet neighbourhood East of Pretoria, the agent’s email tone changed once I indicated that I was Zimbabwean. After initially informing me that the security deposit would be 1.5 months’ rent plus admin costs, he sent me a terse email with a revised “addendum” that now included a curiously out of place addition that foreigners must pay 3 months’ rent as deposit.

I was to learn later on that rental agents were rolling out this “new” requirement. My reading of it was “We don’t want foreigners living in our houses,” considering most people are lucky if they get half their deposits back! I have blacklisted (excuse the unfortunate pun) Trafalgar along with a few other agencies operating in Pretoria.

I read Neo’s article in shock, not at the article itself, but at the writer because she seemed to think this phenomenon was unique to Cape Town and/or out of the South African norm. Further, that the article suggested that the unfair discrimination was just a race issue. It isn’t. Relief (and let me explain here) because FINALLY someone had cared to share the tales of the many who have suffered this fate. And it wasn’t me. You see, whenever I say anything vaguely negative about South Africa (even if it is to say that I hate rugby and that cricket bores me), I am attacked and told that I must “go back to Africa where [I] came from.” So it was refreshing to read an article by a South African calling out other South Africans for their prejudices. And it wasn’t in the dreaded News24 comments section!

While, it would be unfair to over-generalise and say that Pretoria (and Cape Town) is a racist and xenophobic city. Allow me to be unfair at this juncture. The irony of racism and xenophobia in Pretoria and Cape Town (and elsewhere really) is that they are juxtaposed with the internationalisation of the country. It is paradoxical.

Pretoria, as the country’s capital is a hub of international activity, with expats living in secure estates and meeting for Latin cocktails and salsa classes on the regular. Cape Town as the “design” capital of the country, the seat of parliament has its all round “we’re so glamorous, we don’t see colour, creed nor nationality, except if you are poor here” vibe. Ah. Never mind.

I speak of racism and xenophobia in the same breath because these two are inextricably linked in South Africa. I am yet to hear of Greek shop-owners being mistreated and/or violently assaulted by angry “local” mobs. In fact, whenever foreigners are attacked in South Africa, the victims are invariably black. And African. I contend that black Africans are targeted because to their attackers they symbolize something that they are struggling to attain. After decades of a repressive white regime in which black people were regarded and treated as inferior, many still struggle to accept that black people can succeed. That black people can carve a niche for themselves and soldier on despite seemingly insurmountable challenges. So when a black foreign person succeeds where they could not, it is viewed as a greater injustice than when a white foreign person does so. It does not compute. It makes no sense. But xenophobia is nonsensical.

It is clear to me that xenophobia and all other forms of hatred towards people perceived as the "other" are nothing more than external manifestations of one’s own internal self-loathing and/or feelings of inadequacy. As if by killing off those you "fear" are taking away your resources (resources which you claim entitlement to, whether or not you really are entitled to them is another issue altogether) you'll suddenly become better. That exterminating the other will solve your problems. It is intriguing that whenever people experience racism and xenophobia, it is almost always from (near) strangers.

The racism and xenophobia I have suffered has mostly come from people who don’t know me, people who attempt to measure my successes and failures within a split second at the till at my local supermarket and decide there and then that I am either not worthy of their services or grab hold of their bags because, the flying spaghetti monster forbid, I might just try to snatch their handbag and run home. I have suffered xenophobia from people who decide that because I am Zimbabwean, I must smell a certain way, speak a certain way, walk a certain way and all of this must not be done in South Africa. I must do and be it in Zimbabwe.

In 2008, while getting my hair washed at a side street salon (because high-end, yet reasonably priced beauty parlours for black people are still hard to find in South Africa), my South African hairdresser, who obviously had no idea I was not South African, candidly remarked, “Foreigners steal our jobs.” The ever diligent person that I am, and obviously not wanting her to chop off my ailing mane, I waited until she was done styling my hair to tell her that I was a foreigner and I had no intention of stealing her (or anyone’s job). I added that, as a foreigner, it was harder for me to get work despite being an above average student in university. She hissed at me and accused me of “passing off as South African.” My hair was in an acceptable state and I wasn’t in the mood for more idle chitchat, so I made a quick escape.  She didn’t physically attack me and I doubt she had any plans to. However, it was people just like her who months prior and in the months and years to follow, took to the streets in a widespread attack on foreigners on the basis of her very allegation. That black foreigners were here to steal jobs from black South Africans and must go back from whence they came.

It is sad and terribly disheartening that our world is cluttered with degenerate human beings who, despite millions of years of evolution, still fail to accept that the "other" does not really exist. What cowardice it is to attack someone because of (mis)perceived differences and unfounded stereotypes. The problem of xenophobia is particularly riling because more often than not it manifests in violence. It astounds me that one can discriminate against another because they hail from across an imaginary line. People forget that we are all one and the same despite some differences in external physical appearance, concentrations of melanin, and language.

I struggle to reconcile the on going xenophobia(violent or otherwise) with what I know of South Africa’s battle for liberation. Did South African people not recently celebrate and ululate at the demise (or perceived demise) of apartheid? Did that freedom "just" happen? Was it not through the actions of a vast majority of people – many of whom were foreigners – that South Africa became "free"? Many of South Africa’s heroes sought refuge in neighbouring African countries where they were treated, not as visitors, but as family – brothers in arms. Harbouring exiled freedom "fighters" is but one of many ways through which foreigners aided the South African "revolution." Were it not for the same foreigners being attacked today, "freedom" might not exist in South Africa (well, not for most people anyway). But I digress…

From newspaper articles, you would think that society agrees that xenophobic violence is appalling, yet little seems to be done to arrest the problem. What are WE really doing about it? By sitting back and doing nothing are we not part of the problem? Issues such as these should be debated in the public domain, protests should be held and those who have, through their xenophobic violence, harmed others (psychologically, physically, emotionally or otherwise) should be brought to book. Something can be done. There needs to be a clear legislative framework that addresses xenophobia and it must be properly implemented.

PS: As I write, xenophobia remains a real and immediate threat for many Africans living in South Africa. The Institute for Security Studies will, on 12 December 2013, host a seminar on why Somali immigrants continue to suffer the brunt of xenophobic attacks in the country.

PPS: I use the South African nomenclature for racial identifiers as a (strange type of) courtesy to the readers. Personally, I struggle with the use of “black” to identify people of African origin, as I am yet to meet a “black” person (shades of brown, yes. Black? No.) Also, white doesn’t sit well.

Ottilia Anna Maunganidze is a researcher and international criminal law expert at the Pretoria-based Institute for Security Studies. She writes in a personal capacity.

This was originally posted on Umuntokanje and uses some content from previous writings by the author. 

Is trial by video at the ICC virtual justice or the real thing?

21 November 2013

Is the proposal by Botswana, Jordan, Lichtenstein and others to allow accused like Kenya’s President Uhuru Kenyatta to participate in his International Criminal Court (ICC) trial by video link a shrewd chess move to outfox African governments? Or is it a genuine move to address African concerns, which African leaders – and the ICC itself – would be wise to seize?

Last Friday the UN Security Council (UNSC) rejected the African Union’s (AU) demand – put forward by Rwanda, Togo and Morocco – that the cases against Kenyatta and his deputy William Ruto for alleged crimes against humanity after the 2007/8 elections should be deferred under Article 16 of the Rome Statute governing the ICC. States parties to the Statute on the UNSC argued that the proper place to discuss the AU proposal was in the ICC itself, and particularly the annual gathering of the Assembly of States Parties (ASP) to the Rome Statute which would be meeting this week in The Hague.

Britain’s ambassador to the UN, Mark Lyall Grant, told the UNSC that the ICC had already addressed the AU’s (ostensible) central concern that the ICC cases should not distract Kenyatta and Ruto from governing Kenya, especially at a time of heightened terrorist threat illustrated by the Al-Shabaab attack on Nairobi’s Westgate shopping mall in September. Grant recalled that the ICC had thrice postponed the start of Kenyatta’s trial, until February 2014, and had agreed to schedule the two trials so that the two leaders were never in The Hague – i.e. out of Kenya – at the same time.

Grant also said that at this week’s ASP meeting, a number of amendments to the ICC rules would be proposed to further address the AU concerns, including the proposal that sitting leaders like Kenyatta may be ‘present’ at their trials in The Hague by video conferencing. This would allow Kenyatta to remain in Nairobi, greatly reducing the distraction from his official duties.

Ottilia Anna Maunganidze, a researcher at the Institute for Security Studies, notes that Kenya has proposed that sitting heads of state and government should be immune from prosecution by the ICC. This would no doubt fully satisfy the AU which adopted a resolution to that effect in October and prompted the ASP to conduct a debate today on the impact that indicting sitting leaders could have on peace and security. But Maunganidze doesn’t think Kenya’s proposed amendment to the Rome Statute has a chance, as there is no consensus on the issue. In order for such an amendment to pass, in the absence of consensus, a two-thirds majority of states parties would have to support it, and then a seven-eighths majority would need to ratify it.

The UK video link proposal and a similar amendment jointly submitted by Botswana, Jordan and Lichtenstein have a much better chance of being adopted as they would only entail amending the ICC rules of procedure and evidence which requires a two-thirds majority. It’s not quite as simple as that, though, she explains, as the proposed amendments to the rules must be consistent with the Rome Statute which takes precedence. The Rome Statute, for instance, requires suspects to be ‘present’ at their trials, and some countries will surely argue that a live video image of Kenyatta in the courtroom will not make him ‘present’ as the Rome Statute requires.

Probably quite a few governments will agree with Human Rights Watch and other activists that the ICC should not make special exceptions for sitting presidents as this would violate the principle of equality before the law. And in any case the video proposal, even if accepted at the present meeting, would still take considerable time to wend its way through the protracted ICC approval process.
Some observers suspect, though, that the proposal may have been submitted as a means to placate the African lobby and justify not taking action on the UNSC. But if we assume, for the sake of argument, that it is a sincere attempt to reconcile the competing interests of universal justice and effective government to deal with security threats in particular, then it could well be adopted at some point. And one could also assume, perhaps, that if the necessary support is visibly mustered at the current meeting in The Hague, the approval process could be fast-tracked.

We have already seen the ICC bend the rules for Kenyatta and Ruto, a sign that it is feeling the growing pressure being put out by the AU. And, strategically, the ICC probably needs to adopt this proposal, in order to avoid alienating Africa even further and possibly provoking a future withdrawal by some of the 34 African signatories to the Rome Statute, which would deal a very damaging blow to international justice.

But if the Western and other countries boxing in the international criminal justice corner really back the proposal and want it to go through in time for the Kenyatta trial, what about the AU side?
Some African governments seem rather non-plussed by the proposal. The South African Department of International Relations and Cooperation’s response to it has been to insist that the government’s official position is still for a deferral by the UNSC of the cases against the two Kenyan leaders. Yet in the same breath, it does not rule out supporting the video link proposal. Maunganidze confirms that right across government, there seems to be ambivalence about it.

That may be because in a sense the video proposal has called South Africa and Africa’s bluff. If they are really concerned that ICC indictments will fatally distract Kenyatta from his government responsibilities, this proposal addresses that concern, not fully but sufficiently. But if the Kenyan case is really just a vehicle for the AU’s resentment that the ICC is picking on Africa and for a self-serving desire by leaders for blanket immunity, then they will be inclined to reject it. Some answers to these questions should start emerging from the ASP meeting. 

Peter Fabricius, Foreign Editor, Independent Newspapers, South Africa

Originally posted by the Institute for Security Studies

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