KEMBUJE—In the year 2000, South Africa became the 8th African country to ratify the Rome Statute. Since then thirty-four African nations became party to the Statute that established the International Criminal Court (ICC). This meant that Africa was the most represented continent at the court. But sixteen years down the line, South Africa, like Burundi, is withdrawing from the court. Reports claim that South Africa does not wish to violate its obligations to the AU to protect the diplomatic immunity of AU heads of state, hence it can no longer be party to the Rome statute.
Hitherto, all the thirty-four African nations acknowledged full-well the purpose of the ICC and their obligations to it. Not one of them found any contradictions there until now. Also, part of the ratification of the Rome Statute gave the states the liberty to issue a declaration or make a reservation as regards to their concerns about the treaty. Only a few of African countries made declarations regarding Article 87 of the Rome Statute which concerns the channels and languages that the ICC will communicate with the state parties. While many European, Asian and Latin American states made various reservations and declarations on other provisions to state their concerns and obligations, no African country made any reservation about any other provision of the treaty. Yet, some sixteen years hence, South Africa and Burundi said they wish to pull out echoing the usual banter of the AU itself, which has been urging its members to pull out of the ICC since the indictment of Omar Bashir of Sudan and Uhuru Kenyatta of Kenya.
What a Basket of Deplorables?
I think Africans should begin to do more reflection on the state of affairs in Africa so that the people will begin to realise their obligations to themselves and do the needful. For it is clear that indeed Africa does not have the requisite leadership that is prepared to play its rightful role to move the people forward. I have written extensively on this issue but let me state once again some basic facts so that we can understand where we stand.
Human Rights Issues of Concern Across Africa
First, in Malabo, Equatorial Guinea. When the AU met there in 2014 one of the decisions they took was to amend the protocol establishing the African Court on Human and People’s Rights to stop the court from investigating or prosecuting sitting heads of state or senior government officials. A year before this, Rwanda withdrew its declaration that allows its citizens or NGOs to take the government to court for violation of human rights by the government. Since its set up about 10 years ago, only about half of African countries have in fact ratified its protocol.
In the protocol, Article 5, Rule 33—one of the Rules of Procedure of the Court—allows not only states but also NGOs and individuals to sue their governments before the court for rights violations. But for NGOs and individuals to be able to do that, the respective government has to first make a declaration that it recognises the jurisdiction of the court to hear such petition. Hence, since its set up only seven countries have issued such declaration to allow their citizens or NGOs to petition the government before the court. They are Burkina Faso, Ghana, Malawi, Mali, Rwanda, Tanzania and Cote d’Ivoire. But now this has reduced to six because in 2013 Rwanda withdrew its declaration since an opposition politician, Victoire Ingabire, complained that her imprisonment for genocide denial was politically motivated and therefore she is challenging the Rwanda government for that.
Then you come to 2015 when both Rwanda and Congo conducted sham referendums to change their constitution in order to prolong the terms of their presidents by manipulating term limits. Already presidents Denis Sassou Nguesso and Paul Kagame have both served more than 20 years in power. For Kagame in Rwanda, if the changes follow accordingly he could be the president until 2034!
As if this is not enough, we now have the Democratic Republic of Congo also change the constitution to allow Joseph Kabila to remain in power until April 2018 when there should have been elections in this month October 2016 as his last term. Kabila, with whom I was born in the same year of 1971 has been president since 2001, i.e. 15 years ago already after inheriting from his late father Laurent Kabila. Meantime in Gabon, the elections of last month, September were rigged by the incumbent Ali Bongo who has also inherited the presidency from his late father Omar Bongo when he died in 2009 after 40 years in power.
In all these cases the AU of course merely makes cosmetic appearances with a mission and then issue vague and scanty short statements calling for peace and calm only to go mute. Burundi is a case in point where the AU could not do a thing about that buffoon of a tyrant Pierre Ngurunziza who is tearing his country apart since he rigged elections in 2015. He has already been president for 23 years.
In the meantime, thousands of Sudanese especially those in Darfur continue to be massacred by the Janjanweed and other armed criminal militias of Omar Bashir. Hundreds of Kenyans massacred in the wake of the 2007/8 elections have perished with no one held to account as Pres. Uhuru Kenyatta and his accomplices managed to walk their way out of the ICC and are now urging the AU and all African countries to withdraw. As at this moment, the government of Prime Minister Hailemariam Desalegn of Ethiopia is cracking down brutally against the Oromo population of Ethiopia who are calling for equal rights and justice in their own country. Yet AU is headquartered in the middle of Addis Ababa. In the Gambia, after a brutal crackdown on protestors in April 2016 and the subsequent jailing of Ousainou Darboe, leader of the biggest opposition party and his entire executive members among tens of supporters, the AU mission to the country said the matter is a domestic issue to be dealt by Gambians. One feels only nausea if you imagine the situation in Egypt or Eritrea not to mention Zimbabwe or Cameroun.
Thus from the West to the East, the North to the South, regime after regime, president after president continue to crackdown on Africans in all forms and shapes with all kinds of tools and methods without hindrance. Where they do not gun down protestors, rest assured these regimes will arrest, detain and torture people to death. Even in countries we tout as democratic such as Ghana, Senegal, Cape Verde or Botswana, 20 years of stable governance could not still get majority of our people out of poverty and deprivation. These regimes continue to fail to put in place right policies and programs to ensure efficient and accountable governance that the masses of the people can enjoy the fruits of their sovereign wealth and their labour.
Instead in these so-called democratic countries where regular free and fair elections take place with a peaceful transfer of power the votes could not still ensure an affordable balanced diet and decent standard of living for the common man and woman in Dakar or Accra or Gaborone or Praia. But the height of the betrayal of these countries is how presidents Sall or Mahama or Carlos Fonseca continue to appear as if they do not see the violations in Africa. They choose to remain quiet and ignore the plight of Africans at the hands of predatory leaders. Why do they not rebuke their peers for these atrocities? Instead we see hundreds and thousands of the youth of Africa perishing in the Sahara Desert and the Mediterranean Sea as they flee their motherland for lack of hope and peace and justice. Such is the life of an African in the midst of abundance in 2016.
South Africa’s reasons for Withdrawing from the ICC
Thus when we consider all of these, to now imagine that South Africa will have nothing to think about other than to pull out of the ICC because it could not arrest Omar Bashir when he visited the country in 2015, is the highest form of betrayal and disgrace. Even when at the time the South African High Court did make a ruling that indeed the government of Jacob Zuma had a constitutional responsibility to arrest Bashir, the government refused claiming that by the time they got that order from the court, Bashir had already left the country. But now if South Africa is claiming its responsibility under the AU Charter to protect diplomatic immunity of African heads of state as the reason to leave the ICC, what about its responsibility to the very constitution of South Africa itself? Is Jacob Zuma trying to tell us that his government gives primacy to the AU Charter and to an anti-African person like Bashir over and above the constitution of South Africa? Is Jacob Zuma telling Africans that the immunity of Omar Bashir is more valuable than the lives of the people of Darfur who are being massacred because of the ridiculous racist policy of Bashir and Khartoum?
The history of Sudan is clear. It is a country inside Africa where the Arab-speaking population of the north feel they are Arabs and not Africans and therefore think they are better than rest. This is the whole idea behind the war in that country for decades that has led to the division of the country into Sudan and South Sudan in 2011. Hence Bashir and his government are a racist apartheid regime for which South Africa should be the last, if ever, to recognize and sympathize with that regime.
By its own history, South Africa should have been the first and leading voice for justice, equality and human rights in the world today. That Jacob Zuma would protect an African sellout like Bashir who is no different from Apartheid criminals such as Hendrik Verwoerd, PW Botha and Pik Botha is a huge insult to each and every African; an irreparable betrayal of the martyrs of the 1960 Sharpeville Massacre, 1976 Soweto Uprising, and 2012 Marikana Massacre.
The decision by the South African government to withdraw from the ICC because of Bashir is a direct affront and a shameful dishonor of the life and struggles of Mangaliso Sobukwe, Steve Biko, Lilian Ngoyi, Walter Sisulu, Oliver Tambo, Chris Hani and Nelson Mandela and the millions who have perished as they stood up to fight against injustice and inequality in South Africa. The decision by the government of Jacob Zuma is a painful betrayal of the struggle and solidarity that each and every African gave to South Africa to see to it that it was free. After all of that, to imagine that Jacob Zuma would decide to align with individual presidents against the millions of African citizens clearly shows that Zuma is a man of vanity bereft of any iota of responsibility, morality and patriotism. Here is a man full of shame; an embodiment of low self esteem and treachery of unprecedented proportions never seen before in the history of mankind!
How now should African citizens enjoy life, liberty and the pursuit of happiness and security in their homeland? When its leaders and the governments close all avenues from where they could obtain justice and enjoy the fruits of their land and labor. In each and every African country, the leaders and governments have weakened the justice delivery system which they continue to manipulate to ensure that the masses are never able to hold the government to account.
Even when they setup the African Court and before it the African Commission on Human and People’s Rights, these African leaders and their governments disregard the rulings of these institutions with impunity. How therefore could the African citizen enjoy his or her human rights? ICC would have been irrelevant and unnecessary if indeed domestic, sub-regional and continental justice systems were strong, effective and accountable. But how can they be when you have these kind of leaders litter this hapless continent and saturate its AU whose current Chairperson is no other than Idriss Deby, a certified armed and dangerous tyrant, who is notorious for election rigging, torture and summary execution of his citizens in Chad. Shame.