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ICC and perverted justice in Africa

By Andrew Mwenda

Last weekend, we celebrated 48 years of independence. Sadly, many Ugandans (and Africans generally) do not appreciate the political significance of this event largely because of the failures of post independence governments. The resultant frustration has given vent to sections of the international community, largely from the West, to seek to wrestle control of our affairs from African decision makers to international institutions.

Today, Africa is facing deliberate and sustained pressure to surrender key decision-making power on matters concerning our people to international institutions set up and dominated by western nations ‘ World Bank, IMF, UN, ICC, etc. Yet none of these institutions is organised along democratic principles. Instead, the power to make or thwart decisions is influenced by financial contribution or by historical circumstances that gave veto powers to a few. Unfortunately, partly because of our genuine frustrations with our governments, partly because of our local quarrels and competitions; but largely due to lack of intellectual independence, large sections of African elites support these efforts.

For example, the UN recently issued a report accusing the armies of Uganda and Rwanda of gross human rights violations including committing crimes against humanity and genocide in the Democratic Republic of Congo (DRC). This report has received a lot of support from international human rights organisations but equally from local human rights groups, opposition parties and sections of the media. Activists are calling for the trial of the accused ostensibly ‘to send a clear message that impunity will not be tolerated.’

I have always been reluctant to support such reports not because the accusations are false but because they lack context. They also seek to surrender our destiny to the UN, an institution that wields a lot of power yet cannot be held to account for its actions. When Rwandans stared mass extermination in the eye in 1994, the UN, which had a peace-keeping mission in that country, just withdrew. No one held it accountable for this ill-advised decision. So there is no Calvary of the international community that we can trust to save us. Therefore, most efforts by some (read the West) to undermine our right to self determination by putting in place international institutions to govern our affairs as if our countries are not sovereign states but mere trusteeships are unwelcome.

While the growth of international norms and laws to govern aspects of our global community is welcome, this should take place through a democratic process where the affected parties have effective control over the solutions offered for their own emancipation. Second, as far as possible, these norms should take the local context seriously lest they promote a perverted form of justice. It is most improbable that some remote and detached international bureaucrats armed with an abstract notion of justice can appreciate the complexity of a local problem. And even if they did, they may not appreciate the hard-nosed bargains and tradeoffs necessary to achieve a workable solution.

Let us look at the processes that have resolved the most intractable conflicts on our continent over the last two decades. Under apartheid rule, white supremacists indulged in gross human rights violations and committed crimes against humanity. However, Nelson Mandela (that icon of our times) and his African National Congress party recognised that these crimes were committed in a specific political context. To build the nation of South Africa and achieve inter-racial harmony and social integration, Mandela understood that he needed to place political reconciliation above the pursuit of justice.

Consequently, Mandela did not look at F.W. de Klerk and other leaders of South Africa, who had committed crimes against humanity, as criminals to be sent to jail. He approached them as partners in the search for peace and democracy. This meant placing quarrels over a contested past behind in order to discuss the future. Had there been an International Criminal Court in 1994 armed with an abstract notion of justice without any reference to local context; an ICC open to making the complicated tradeoffs necessary to achieve political accommodation, de Klerk and his apparatchik would never have left power peacefully. Mandela and the ANC would only have had to come to power through a military victory. This would have taken decades and caused a lot of bloodshed.

Another successful example is Sudan whose president, Omar al-Bashir has been irresponsibly indicted by the ICC allegedly for crimes against humanity and genocide in Darfur. There has been more death in South Sudan than Darfur and Bashir was a central actor there too. Yet the late John Garang understood that Bashir was a partner in seeking a peaceful end to the conflict in the South. He was thus involved in negotiating and signing the Comprehensive Peace Agreement with him. I still believe that Bashir is (or should be seen and treated as) an important ally in the search for peace in Darfur. His indictment may create worse problems than it is seeking to solve.

Another example is Mozambique where RENAMO was a violent rebel group like Uganda’s Lord’s Resistance Army and Sierra Leone’s RUF. To secure a peaceful resolution of their conflict and to build a democratic society, the leaders of that country did like Mandela. In Rwanda, the RPF initially tried to pursue justice claiming that amnesty would tantamount to accepting impunity. Over time Paul Kagame and those around him realised that solving political problems is a complex issue that requires accommodating some evil in order to secure peace and reconciliation. They chose Gacaca (local community-based courts).

In all cases, the lesson is clear ‘ that any pursuit of justice must be rooted in the context. To do so requires making hard bargains and tough tradeoffs. This means that any notion of justice or impunity has to be subjected to a reality check. Most critically, we see that where violence was aimed at achieving a political objective, it is misleading and indeed counterproductive to treat it as a mainstream criminal offence. However, such nuance cannot be appreciated by international institutions whose actors are not affected by the decisions they make; so they seek to pursue justice without context. Those who suffer from the protracted conflicts understand the tradeoffs necessary to achieve peace. This is the reason why Africa should reaffirm her right to self determination.

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