The African Criminal Court: An African Solution for African Problems?

At the African Union (AU) Summit meeting in July, the African Heads of State are expected to finalize and adopt the creation of the African Criminal Court. The creation of such a regional criminal court is unprecedented and may come into conflict with the existing International Criminal Court (ICC), but the question is: is an African owned justice process, outside the hand of “western” influences, what is needed to foster security and peace on the Continent?

The African Court of Justice and Human Rights (aka the African Criminal Court) will be the result of the merger of two existing AU legal structures—the African Court on Human and People’s Rights and the Court of Justice of the African Union—and will have three sections: general affairs, human rights, and international criminal law. The jurisdiction envisioned for the court will include the categories already covered under the Rome Statute of the ICC – genocide, crimes against humanity, and war crime – but will also include crimes of particular relevance to African, including piracy, terrorism, mercenary activity, corruption, money-laundering, human/narcotic trafficking, and illegal exploitation of resources. This comprehensive list of indictable crimes aims to combat some of African’s biggest problems through criminal justice, in hopes that this will subsequently promote regional peace and security. While its adoption is anticipated at the July AU Summit, the new court will not enter into force until it is ratified by 15 member states.

The African Union has been very vocal regarding its feelings of contempt for the present system of international criminal justice. Since, to date, the ICC has only taken on African cases, there is a general feeling that the Court biased, determined only to seek out and prosecute African violators of international criminal law. It is important to note, however, that out of the 18 cases the ICC is currently handling, 12 were referred to the ICC by the respective countries and only 6 were the result of a UN Security Council directive. While the President of the ICC maintains that is ICC is not a political entity and acts impartially within the strict legal framework provided for by the Rome Statute, the fact that the only Security Council directives have been for African fugitives while other violators in international criminal law have thus far escaped indictment, questions the degree of independence by which the ICC operates. It is in this context that the African Union has sought to create their own system to bring about African justice by and African hand.

One of the biggest problems with the ICC and its indictments in Africa is that it does not take into consideration the context in which their indictments have been rendered. For example, the ICC has indicted, tried, and convicted Congolese perpetrators of crimes against humanity in the midst of the enduring conflict in the Democratic Republic of Congo. In this way, the ICC acted with a strictly judicial understanding: an individual has committed an indictable crime under the Rome Statute and therefore must be brought to justice. Such a mindset does not take into consideration the large implications of such an indictment on the longer term peace and security of the region. Justice, while an important aspect in post-conflict reconstruction and an essential component of any democratic society, renders hard-line, black and white decisions—either convicting or acquitting an individual; in the midst of a conflict the circumstances surrounding an individual’s actions are hardly ever black and white. There is a lot of grey area that the ICC does not have the mandate to take into account. Justice creates clear winners and losers and, in doing so, can negatively impact the reconciliation and post-conflict reconstruction process. In extreme cases, this creation of winner and losers can prove the grievances upon which future violence is founded. The interest of peace and security is the reason why the AU has called for the postponement of trials against AL-Bashir, not wanting trials Given this, is would an African owned judicial system be more understand of the context in which it operates and make greater strives towards achieving regional peace and security?

The creation of the regional criminal court is completely unprecedented under international law and consequently, its interaction with the ICC is uncharted charted territory. For one, there is no hierarchy of treaties under international law; everything is on the same level. Currently, the ICC has agreements with national court, surrendering jurisdiction to the national level if the state is willing and able to carry over prosecution, but it has not such mechanism to deal with the creation of a regional court. Thus, if a state is partied to both the African Criminal Court and the ICC, there is no clear cut why of determining which court will have jurisdiction. This will pose a conflict in terms of jurisdiction among those African countries which have ratified the ICC Charter and which seek to ratify the statute of the African Criminal Court.

If the United Nation’s coordination of peacekeeping missions with the African Union serves as precedence than there may be some guidance in the construction of the AU/ICC road-map. More and more, there is a movement towards African led peacekeeping mission that are supported by the UN. The African Union Mission in Somalia (AMISOM) is an example of this. The goal then would be to create a relationship between the African Union and the ICC in which the African Union has primary jurisdiction over cases, but is supported by the ICC and has the discretion to refer cases to the ICC. The exact details of this suggested relationship remain unclear at the present moment. However, in order to avoid future conflict and headaches, the relationship between the ICC and the African Criminal Court should be fleshed out in more detail before the African Criminal Court enters into full force.

Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law. Currently she is in Arusha, Tanzania, working as a Legal Intern for the United Nations International Criminal Tribunal for Rwanda. You can email her at jah340@georgetown.edu or follow her on twitter @joleneh340

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Tanzania: An Unraveling Democracy?

This past week, with the UN compound bombing in Somalia, the ongoing crisis in Syria, the protests in Turkey, and the outbreak of protest in Brazil, story of the bombing in Arusha received little to no international media attention. When weighed against these other events, the June 15th bombing in Arusha seems like such a small and isolated event. Tanzania is perceived to be one of the more stable countries in the region and the recent events have been deemed by security personnel to be isolated incidents. However, when taking into consideration the political motivation of these crimes as well as the responses of both the authorities and the police, one can’t help but wonder if this situation is a glimpse of a greater problem, one that if not addressed, could threaten the stability of Tanzania’s democracy.

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On Saturday June 15th, Tanzania’s opposition party, the Party for Democracy and Development (CHADEMA) held a rally at the Saweto district stadium, in the Kalonlei area of Arusha city. The rally was the peak of the campaign for by-elections to fill the vacuum for representatives in six Arusha area districts, notably Kalolei, Themi, Elerai, and Kimandolu, origionally scheduled for Sunday, June 16th. What should have been a peace demonstration—exemplifying democracy, freedom of expression, freedom of association, and free speech—quickly turned chaotic when grenade exploded near the center stage as Freeman Mbowe, the party’s leader, addressed supporters. The bomb killed four people, three of which were children, and resulted in approximately 50 to 70 additional causalities. Although the assailant(s) have not yet been caught and the motive has not formally been determined, it is believed that the attack was politically motivated, the opposition leaders being the intended targets of the blast. Arusha is a CHADEMA stronghold and this attack threatens to exacerbate already uneasy political tensions between CHADEMA and the CCM, the ruling party of the government. CHEDEMA officials have previously expressed complaints regarding government crackdowns against opposition demonstration and public rallies.  The National Electoral Commission cancelled the by-election in all six Arusha districts, citing insecurity. The by-elections have been rescheduled for Sunday, June 30th.

In response to this event, Tanzania authorities banned all public gatherings and deployed the Tanzania People’s Defense Forces to keep the area clam. Consequently, when a memorial service was held on Tuesday June 18th, to mourn the death bomb’s victims, the service was perceived as a security threat. The police, liable to disperse any unauthorized rallies, fired teargas into the ground, fired several rounds of warning shots into the air, and made several arrests as the attempted to disperse the crowd. Roadblocks were set up, movement around Arusha became increasingly difficult, and security became a pressing concern for Arusha residents. CHADEMA has long complained of unnecessary crackdown by the Tanzanian government, and this is yet another example. Four deputies of CHADEMA and a dozen supporters were arrested on charges of illegal assembly, but were released on bail on Wednesday, June 19th.

There have always been tensions between CHADEMA and CCM in northern Tanzania; however, these tensions have recently increased as support for CHADEMA has been rising in the region, making the party a serious contender in the next election. Tensions between the ruling political party and the opposition party are not abnormal in and of themselves. In fact, such rivalry is inherent in the democratic system. In a developing democracy such as Tanzania, the way in which the rivalry is expressed is of the utmost importance as it sets precedence for the handlings of a multiparty democracy in the future.

CHADEMA is an opposition party with growing popular support, particularly in northern Tanzania. In a free and fair democracy, if CHADEMA is able to bolster the majority support and win the next election, they should rightfully become the ruling party in Tanzania. The bombers of the CHADEMA rally remain unknown and until the perpetrators are caught, it is dangerous to make accusations regarding who the bombers were; however, given that the bombing took place at a political rally and is considered to be an isolated incident, the assumption remains that the bombers’ motivations were political. Who they were and what kind of association they have are undetermined.

The banning of political rallies by government officials in response to this bombing is concerning. Yes, there is an element of security involved, but there a fine line between national security and the infringement on human rights, which is often blurred. What is more striking was the dismantling of the memorial service. This was not a political rally—although largely CHADEMA supporters were in attendance—it was memorial service for those who had perished in the bombing. Moreover, the police were quick to employ violence and confrontational methods to break up this gathering, rather than first attempting to disperse the group through non-violent means. The overreaction of the police in this instance has the potential to insight further violence as some may feel compelled to respond/reciprocate their treatment by the police. And thus begins a cycle of violence that can quickly spiral out of control. This has not yet been the case in Tanzania, but with the underlying tensions between the political parties and the authorities’ use of violent methods there is festering potential.

Tanzania has been a relatively stable democracy since gaining its independence from colonial rule in 1964, especially when one considers the other countries in the region; however, it transformation into a complete and opened democracy is not yet finished. The next step in the process is the acceptance of alternative political groups and the willingness of the present party in power to relinquish power, when and if another party rightfully wins the majority. With growing opposition towards the ruling party, it is essential that they be granted a platform for the expression of their opinions and ideas. If suppressed, as the opposition party continues to grow, this could seek to threaten Tanzania’s democratic stability.

Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law. Currently she is in Arusha, Tanzania, working as a Legal Intern for the International Criminal Tribunal for Rwanda. You can email her at jah340@georgetown.edu or follow her on twitter @joleneh340