It’s not the International Criminal Court (ICC) that should worry African governments if events are anything to go by.
Over and again, leaders used to getting their way have lost to NGOs, opposition parties and ordinary citizens who approached the local bench.
This month, South Africa reversed its decision to leave the ICC after a challenge in the Pretoria High Court by the opposition Democratic Alliance. Three judges ruled in favour of the DA that withdrawal was at odds with the constitution.
But the very act of leaving stemmed from an effort by the group, Lawyers for Human Rights, to force an arrest of Sudanese president Omar al-Bashir who, in June 2015, attended a conference in South Africa. A warrant from the Hague on a charge of genocide meant any ICC member was compelled to detain him on sight.
President Jacob Zuma and his ministers hatched a plan to get al-Bashir out of the country and, since then, no one wanted by the ICC has dared enter South Africa.
Zimbabwe is no stranger to abuse of the law. Since 1980, President Robert Mugabe has used some of the world’s most oppressive legislation to detain people without trial and prevent journalists from writing about it.
And, still, the government has lost — time and again — when magistrates have refused to accept confessions extracted under torture.
Further afield, the elite are being tested not by global justice but in local courts. And for the most part, they are losing on a continent with more democracy now than at any time in history.
- Kenyan athletes have sued officials who allegedly stole money meant to cover their expenses at the 2016 Rio Olympics. If the matter is not resolved, Kenya could be barred from future games.
- In Nigeria, a local court has thrown out Abuja’s effort to stop Biafran separatist, Nnamdi Kanu, from taking his case to be heard by judges from the regional body, Ecowas. He is suing the state for $800m, claiming a lengthy detention and alleged abuse have violated his rights.
- South Africa’s radical EFF, and lobby group Afriforum, are thrashing out the issue of land-grabs before a judge. Afriforum says Julius Malema was wrong to call for land invasions; he, in turn, says a law that prevented him doing so is out of date.
- Former Gambia strongman, Yahya Jammeh, who fled the country in January faces multiple charges of murder, torture and embezzlement.
- Back in Zimbabwe, protesters detained for rallying against Mugabe were released by a court last week after they challenged the legality of their arrest.
Professor Gregory Stanton is one of the world’s foremost human-rights lawyers and founding president of Genocide Watch, a monitor group for mass atrocity that, in 2011, formally classified the Gukurahundi murders in Zimbabwe as genocide. Those killings happened in the 1980s and led to the deaths of up to 40 000 Matabele civilians at the hands of a unit reporting directly to President Robert Mugabe.
Based in Washington DC, Stanton is passionate about holding the state to account.
“Democracy must be grounded in the grass-roots,” he says. “It only works when ordinary citizens get involved.
“The same applies to justice. That’s why courts are open to the public. It’s why legal challenges can halt orders of the president, a minister or anyone else in authority.”
If there’s a problem with the justice system in Africa, it’s found in a continent-wide poll released this week. On average, 30 per cent of respondents said they had to pay a bribe to get help from the courts.
In the study by Afrobarometer, Sierre Leone fared worst for judges on the take (67 per cent) while Botswana scored a perfect zero, but one-in-five Zimbabweans parted with money or a gift to have their case heard.
And there is a problem with the cost retaining a lawyer and sitting unpaid in a courtroom instead of at work.
In SA, 42 per cent found the process too expensive and, in Zimbabwe, more than a third said the price was out of their reach.
Sadly, tyrants can make life hard for the rest of us.
Last month in London, the long-time president of Djibouti was humiliated after losing what critics say was an attack by proxy on the political opposition.
Since independence from France in 1977, Djibouti’s only two presidents have been Ismaïl Omar Guelleh and his late uncle. The constitution has a two-term limit but Mr Guelleh is on his fourth, winning 87% of the vote last year in a country where media is under state control and opponents have largely been driven underground or to exile.
Enter Mr Abourahman Boreh, a friend of the president who spoke out when Guelleh ran for a third term in 2011 and suggested he might stand as a rival candidate.
Mr Boreh’s firm had been retained to expand the port on a strategic piece of land near the capital, jutting into a narrow strait of water that forms the only link between the Indian Ocean and Suez.
Here, on one of the world’s busiest sea lanes, France, the USA and China all have military bases and have learned not to anger their host.
Boreh was placed on a trumped-up terror charge and, when he fled, Guelleh pursued him through European courts, freezing his assets, then suing the businessman who now had no money to fight the case.
But the Guelleh regime lost every time when evidence was either lacking or shown to be fabricated. Boreh’s assets were released and he was found innocent on all counts.
Then Djibouti went after the company Boreh had contracted to build a container dock at the port, claiming Dubai-based DP World had won the tender through a bribe. DP also has terminals in Europe, Senegal, Mozambique and across the Middle East.
In February a commercial court in London found nothing to back the claim.
Djibouti was ordered to reimburse Mr Boreh a staggering £9.3m (US$11.3m) for his legal team. No wonder in the Afrobarometer study, those who rated themselves “poor” felt justice was out of reach.
Another complaint in the poll was time. More than 60 per cent said justice is too slow. For example, three-quarters of Kenyans felt delays at court were intolerable. Ditto South Africa at 32 per cent and Liberia the worst at 81.
Other gripes were that judges don’t listen and the process is hard to understand.
In Harare, government is notorious for ignoring judgements.
Little wonder the challenge to state power comes mostly from NGOs and class action. And for the all the problems, there’s been a steady rise in cases. So much so that Jacob Zuma says the courts are making his job difficult. He has been challenged over renovations to his private home and on claims of corruption and abuse of the constitution.
Mr Zuma is set to stand down in 2019 and unless his successor grants a pardon, he could face years of litigation when he leaves office.
And it’s not just the president. The police, broadcasters, ministers and state entities have all been sued in the past year as citizen groups become ever more aware of their rights.
Contrary to complaints logged by Afrobarometer, many cases were resolved in months if not weeks, usually with the state caving in.
Some Africans distrust the bench, but in a country where confidence in the state is at record low, 63 per cent of Zimbabweans said they still had faith in the legal system.
The Hague process is costly and trials can run for a decade, but in or out of the ICC, Africa has found its voice.
Some say it makes lawyers rich and the country hard to govern. Maybe so, but the trend of “I’ll see you in court,” is growing.
Professor Stanton has no qualms about that. “Recent decisions in South Africa against Sudanese president al-Bashir, or against tyrants in Gambia or Djibouti show how global justice is a task for all of us,” he said
“The only real enemy is silence.”
If he’s right, those who, just a few years ago, ruled with impunity will have to get used to being hounded by the law.Post published in: Africa News