Civil societies want dialogue over proposed Africa courtís mandate
African Civil Society groups are opposed to the amendments to expand the mandate of African Court of Justice and Human Rights (African Court) to individuals for genocide, war crimes and crimes against humanity. The civil society groups argue that despite voicing strong reservations to African Union about the proposed Court last December, discussions on the amendments have reached an advanced stage and fear the amendments could be endorsed at the ongoing meeting of African Attorney Generals and Ministers of Justice from May 7Ė15, 2012 in Addis Ababa, Ethiopia.
The plans to establish the Criminal Court of the Continent comes at a time when many African ICC state parties, more so Kenya have been championing complete withdrawal from the Rome Statute that founded the ICC. However, the move seems to have fallen on a flat face. AU has alleged ICC bias against Africa, despite her 33 States parties constituting the biggest regional group in the Assembly of States Parties- and significantly influenced the choice of international justice expert Fatou Bensouda as the new prosecutor.
AU Legal Counsel Ben Kioko says the review and passage of the draft protocol on the continental wide Criminal Court tops the agenda of the meeting. This is where the civil societies read mischief and say the hurried draft protocol has not been subjected to public scrutiny and consultation. They particularly want the conference to order further and careful examination of jurisdiction, definition of crimes, immunities, institutional design and enforcement of an expanded jurisdiction among others.The Banjul, Gambia based Court was originally meant to tackle human right and good governance in the continent. In July 2008, it agreed to merge with African Court of Justice to serve Criminal Court for the continent. Since then, there have been several vain attempts to make the court try many of the international criminal cases facing African nationals, mainly at the Hague-based International Criminal Court (ICC).
The civil societies accuse AU, which is strongly opposed to ICC trials, for hurrying with formation of African Criminal Court, which is likely to be endorsed during the conference so as to try some of the Africa situations at the ICC. Other proposals include trying thee cases at regional based Courts of Justice. For example, Kenyan President Mwai Kibaki recently requested that four Kenyans facing trails at ICC be deferred to the Arusha- based East African Court of Justice. Other African nationals facing criminal charges at the ICC are from Democratic Republic of Congo, Libya, Sudan and Uganda.
But the groups led by Jemima Njeri Kariri from International Crime in Africa Programme (ICAP) say such requests for deferral will divert attention and resources from national obligations to fight impunity. She argues that AU members have primary obligation to investigate and, if there is sufficient evidence, prosecute persons suspected of crimes under international law before their national courts. The groups including Coalition for an Effective African Court on Human and Peoplesí Rights, Darfur Consortium, East African Law Society, International Criminal Law Centre, Open University of Tanzania, Open Society Justice Initiative, Pan-African Lawyers Union, Southern Africa Litigation Centre and West African Bar Association.
They urge the meeting by Government Experts on Legal Matters to be skeptical about the proposed expansion, saying addition of jurisdiction to try individuals before a regional court would be unprecedented. Miss Kariri says requests for deferrals undermine human rights protection but also divert resources and attention from strengthening the ability and willingness of national authorities to prosecute international crimes.
The groups aver that unplanned expansion of African Courtís jurisdiction could dilute its capability to deal human rights, saying additional mandate will further drain away resources needed to shore up courts human rights mandate. By enforcing important rights to justice, truth, and reparation, regional human rights courts can make essential contributions to the fight against impunity as a part of broader human rights protection.The civil societies argue that creating such regional courts have immense impact on the broader fight against impunity, saying it will take time for amendments expanding the African Courtís jurisdiction to include criminal cases to take effect. Since 2008 only three states have joined the African Court merger protocol. They argue that Non-ICC states parties may use the prospect of future regional criminal jurisdiction to justify not joining ICC, but without any guarantee that they will ever join or cooperate with Africa Criminal Court.
The expansion of the courts jurisdiction, they argue could maintain current gaps in accountability and undermine efforts to widen the reach of international justice. They say establishing a regional court is complex, time consuming and expensive. Individual criminal prosecutions meeting international standards have entirely different adjudicating human rights violations by states or intra-state disputes. For example, they argue it took ICC nearly ten years to put systems in place to perform these functions and to complete its first trial.
They warn the top African law makers that implementing an expanded mandate will also be costly at a time when the operation of other regional mechanisms remains limited due to resource constraints. The cost of a single trial of an international crime has been estimated at nearly US$20 million.
Miss Kariri urges the meeting to ensure African ICC states parties provide essential backingóincluding funding since several Africans have been appointed to senior offices at the ICC. ďThe continued engagement of African states parties is vital to ICCís success. If the African Courtís jurisdiction is expanded, African ICC states parties may face duplicative or competing obligations between the African Court and the ICC, including in resource and cooperation requests,Ē she says.
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