The riddle of the stalled 2014 AU protocol to vest the African Court of Justice and Human Rights with jurisdiction over international and transnational crime resurfaced in Arusha this week.
Three years later, the proposal which came at a time of a sustained AU assault on The Hague-based International Criminal Court (ICC) has remained a riddle with nine signatures and zero ratifications from the 50-plus member AU.
Among the signatories is Kenya, Benin, Mauritania, Tanzania and Guinea Bissau. Kenya also offered $1 million dollars (Sh103 million) to the operations of the court. At least 15 countries are required to ratify the protocol for it to come into force. Brokered in Malabo, the Coastal capital of Equatorial Guinea, the deal attracted support for adding a regional accountability layer to quest for justice but was equally ridiculed as a scarecrow to ICC activities in Africa and granting of immunity to sitting heads of states and governments.
“It is truly a reflection of the specific needs of the African continent in dealing with international and transnational crimes. I know it’s taking time but the process of ratifications of international instruments is no easy walk in the park for most countries,” Selemani Kinyunyu, a Tanzanian lawyer affiliated to the African Court said at a Wayamo Foundation symposium on international justice.
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Trouble for the protocol began in Malabo when it generated more heat than light. On the date the protocol was endorsed by the summit, there was no paper on the table for interested states to sign up as they left Equatorial Guinea.
“As a result, countries left Malabo before signing up to the protocol. With the agenda done with and with leaderships back in their capitals, it became a little difficult to get as many numbers as we would have wished. It is happening nevertheless and we will get there, eventually,” Kinyunyu said.
Allan Ngari, a South African-based researcher with Institute for Security Studies, said lack of political will and not lack of institutions to fight impunity is the bane of Africa. Outside the Malabo protocol, he submitted, only five of the 50 plus AU countries have legislated on international crimes.
And even where the legislations are available, it is much more in paper than in practice. Ngari gave the example of Kenya where International Crimes Act is in operation, yet the country’s judiciary has perpetually reneged on its obligation to set up the International Crimes Division. “Everyone else in the criminal justice system in Kenya is ready except the judiciary. The Office of the DPP has set up an international crimes division and the DCI as well. They can investigate these cases but they have nowhere to take them,” he said.
Ngari also rued Africa for wasting invaluable time limiting the international justice discussion to debate of immunity for sitting presidents. He also claimed African governments have locked up individual’s access to regional courts for selfish reasons.
ICC’s senior trial lawyer Anton Steynberg promised the African court a similar experience as ICC whenever they will begin prosecuting the powerful people in the continent. “I can see ourselves having same conversations 10 years from now when you begin running into the same headwinds as ICC, same brickwalls,” he said.
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Steynberg cautioned against lumping transnational crimes and international crimes together, saying the former will always trounce on the latter.
The African court was engineered to have complementary mandate with ICC over crimes of international law. It was also to try transnational and other international crimes outside of ICC such as drug trafficking, piracy, terrorism, mercenarism, money laundering, corruption, unconstitutional change of government among others.
Kinyunyu said transnational crimes are fast evolving as Africa dithers in setting up the new court. He said cyber-crimes, currency counterfeiting, wildlife trafficking and emergence of “low-tech but huge impact threats” such as motor cycle gangs, use of mobile money and virtue currencies are presenting new challenges ahead of establishment of the court.
Previously, the AU has been unable to rally support for operationalisation of the African Court of Justice set up in 2003 as well as the merger of the ACJ and existing African Court of Human and People’s Rights into the court which AU now wants expanded.