Human rights lawyer Femi Falana SAN has urged the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda to “immediately open an investigation into the allegations of international crimes committed by the government of former president Yahya Jammeh.”
Falana stated this today in his keynote address at a meeting by the African Network on International Criminal Justice held at Dakar, Senegal.
In the paper titled: Africa and the ICC: Achieving justice for victims and ending impunity across the continent Falana said, “If the ICC wants to be relevant in Africa it cannot continue to pick and choose the cases to investigate and prosecute. For instance, the Prosecutor of the ICC issued warnings and threatened to prosecute politicians linked with political violence during the 2015 general election in Nigeria. But no such warning was ever issued when former President Yahya Jammeh annulled a credible presidential election held in The Gambia in 2016.”
“Happily, the Economic Community of West African States intervened decisively and prevented the break out of a civil war in the country. As the ICC cannot continue to turn a blind eye to atrocities committed by the regime of former president Yahya Jammeh of Gambia the Prosecutor should open an investigation into them under the Rome Statute without any further delay.”
Falana’s paper read: “The Rome Statute of the International Criminal Court (ICC) recognizes that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity” owing to armed conflicts. These grave crimes threaten the peace, security and well-being of the world. Africa has had its fair share of the problem. As such, various efforts to pursue, make and keep the peace have been intensified over the past half a century.”
“To the extent that the ICC has failed to try the heads of governments of some powerful states responsible for the unprecedented crimes against humanity and genocide committed in Iraq, Afghanistan, Libya and Syria the allegation of selective prosecution of African leaders cannot be dismissed lightly. But the failure of the ICC to prosecute such well known highly placed criminal suspects should not be a justification for preventing the arrest and trial of other perpetrators of crimes against humanity and genocide.”
“As far as Africa is concerned the ICC cannot be absolved of the allegations of selective prosecution. In fact, the case of former President Laurent Gbagbo has gone from selective prosecution to selective persecution. Whereas he was discharged and acquitted in February 2019 the ICC has ordered him to be incarcerated in Belgium pending when the Prosecutor would file a fresh charge against him. But since the ICC has no power to order a defendant that has been tried, discharged and acquitted it ought to quash the detention of Mr. Gbagbo forthwith.”
“In as much as AU is opposed to the indictment and prosecution of African leaders not much has been done to promote to accountability and defend human rights. In fact, in order not to be held to account only nine States (Algeria, Benin, Burkina Faso, Cote d’Ivoire, Ghana, Mali and Tanzania and The Gambia) have made a Declaration to allow victims of human rights abuse to seek redress in the African Court on Human and Peoples Rights. However, the AU will be deceiving itself if it believes that the planned mass withdrawal of African states from the ICC will shield African leaders who engage in genocidal acts from prosecution and humiliation.”
“As long as the governments in Africa continue to pay lip service to the fight against impunity, the victims of egregious human rights infringements will not hesitate to seek redress in available human rights mechanisms with a view to bringing perpetrators to book.”
“If the AU does not want Africans accused of violations of international law to be tried outside the continent and outside domestic jurisdictions, it has to show strong political will to combat impunity and ensure justice for victims. Refusal to comply with court orders admitting criminal suspects to bail or ordering the release of detainees is an invitation to anarchy. The manipulation of constitutions for tenure elongation is also an invitation to political instability.”
“The AU has to adopt measures to prevent the manipulation of national constitutions to legitimise tenure elongation by ruling parties, harassment of opposition figures and civil society activists, killing of political opponents, proscription of civil groups, closure of media houses and ban on freedom of expression and association.”
“To best address accountability and combat impunity across the continent, African leaders should strengthen and improve domestic criminal justice systems and the regional and sub-regional human rights courts and mechanisms. In particular, the Summit of Heads of State or Government of the Southern African Development Community (SADC) should reaffirm its commitment to improve respect for human rights among its member states, consistent with the SADC treaty, which commits them to act in accordance with the principles of “human rights, democracy and the rule of law.”
“The Summit of Heads of State or Government should without further delay restore the SADC Tribunal’s human rights mandate and comply fully with the orders of regional tribunals and municipal courts. It should be noted that SADC leaders in August 2014 stripped the tribunal of its mandate to receive human rights complaints from individuals and organizations, leaving it only to adjudicate disputes between member countries. This drastically limits the tribunal’s human rights protection mandate.”
“The AU should immediately rescind its 2018 outrageous decision [DecisionEX.CL/Dec.1015(XXIII)] to limit the autonomy and human rights mandate of the African Commission on Human and Peoples’ Rights. This illegal decision is entirely inconsistent and incompatible with the human rights provisions of the AU Constitutive Act, and it is retrogressive to say the least.”
“It should be noted that the AU Executive Council in June 2018 stated in its decision that the African Commission only had “independence of a functional nature, and not independence from the same organs that created the body.” The AU Executive Council also decided to authorize the AU policy organs to revise the criteria for the commission to grant observer status to NGOs, taking into account overtly broad considerations of “African values and traditions.”
“The African Commission on Human and Peoples’ Rights itself has to wake up and be counted on the side of human rights, be more assertive in the exercise of its human rights mandate and to robustly challenge any attack on its foundational instrument—the African Charter on Human and Peoples’ Rights—by the AU or any other institutions for that matter. The African Commission has to restate its historical leading role across the continent in promoting and protecting human and peoples’ rights, including in Nigeria when it delivered groundbreaking decisions during the period of military dictatorship in the country.”
“The AU should stop prioritizing ‘political settlement’ of egregious human rights abuses at the expense of accountability, access to justice and effective remedies for African victims of violations and abuses. Accountability and justice must never be sacrificed to promote the interests of those in power.”
“African victims of human rights violations and abuses cannot have faith and confidence in domestic criminal justice systems and regional and sub-regional human rights courts if the AU continues to fail or refuse to address the challenges confronting these institutions of justice and to consistently obey and enforce court judgments.”
“The African human rights community should coordinate and organize victims of crimes against humanity and genocide to seek reliefs within the criminal justice system. Victims of human rights abuse should be encouraged and supported to seek redress in domestic courts and regional tribunals and institutions. The AU and its member states and African leaders in general must sort out the procedural obstacles that continue to impede the effective enforcement of judgments of regional courts in domestic nation states.”
“The AU should stop engaging in confrontation with the ICC and instead show genuine commitment to prosecute those accused within member states’ domestic courts, develop the capacity to prosecute crimes under international law within national courts, and improve access to justice for victims nationally and regionally. The African Union should adequately fund the African Court on Human and Peoples’ Rights and encourage its member states that have not yet done so to ratify the protocol to the African Charter on Human and Peoples’ Rights establishing the African Court on Human and Peoples’ Rights and make declarations that would allow individuals and NGOs direct access to the court.” (ChannelsTV)
