Editorial - Sisonke Msimang

By Sisonke Msimang | March 05th, 2012
Sisonke Msimang, OSISA Executive Director

“Before we were a country, we knew ourselves to be part of global movements for justice. Now we have come full circle - the poorest Kenyan can claim the gold standard of international justice that her own government has not afforded her. Can turn to the international statutes and conventions that Kenya is signatory to, and under them, seek redress for crimes committed against her.” Shailja Patel - Kenyan activist, playwright and the 2011 Poetry Africa Letters to Dennis poet.

I cannot remember a year in recent history that was as rich with drama as 2011. As masses of angry protesters gathered in Tunis and Cairo early in the year, millions of ordinary people across Africa watched the protests, willing them to prevail and wondering aloud if countries south of the Sahara would follow suit. The spontaneity of the protesters masked a steely determination: the old wily leaders would not outlast them this time. They were prepared to stay in the streets until the change they wanted was delivered. It was breath-taking.

The popular revolts in Tunis and Egypt were both the result of electoral contests in late 2010, which provided an opening for long suppressed tensions to boil over. Meanwhile, contested elections in Ivory Coast triggered another volatile situation as the incumbent, Laurent Gbagbo, refused to vacate State House after UN-certified results showed that he had lost to Alassane Ouattara by nearly eight percentage points. Instead of conceding, Gbagbo – following the African autocrat’s how-to-stay-in-power rulebook – cracked down on suspected Ouattara supporters only to find that France was not prepared to accept an African solution to the Ivorian problem.

And in Kenya, after the government repeatedly refused to put in place a proper and credible inquiry into the horrific violence that followed the 2007 elections, victims and their supporters secured over one million signatures in a campaign to bring the main orchestrators of the bloodshed to book, and then watched in amazement as six senior figures were indicted by the International Criminal Court (ICC) and appeared in The Hague – and on their television sets.

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While the indictments provoked criticism from some elite quarters, the response from ordinary Kenyans was overwhelmingly positive as they refused to buy the argument that justice against Africans must be meted out in African courts. They knew, as one commentator noted, that this was the “first time that senior Kenyan politicians had faced the consequences of being held responsible for wrongdoing.” It is the same in many of the countries in which we work. Political elites exercise absolute impunity and ordinary people know this. And this knowledge, and the growing resentment about it, fuels continued interest in elections – and widespread support for the ICC – in countries that lack key elements of democracy.

The campaigns about the need for ‘African justice’ are deployed by those with an interest in ensuring that they can continue to operate above the law. It is that simple. And 2011 demonstrated – like never before – that no one is above the law. While criticism of the ICC has gained momentum in the past few years, 2011 will be regarded as a watershed year, when the Court struck real fear in the hearts of those who have something to hide. It is one thing for Congolese or Ugandan warlords to be brought up on charges, or for Sudan’s indicted President to continue flying around Africa, safe in the knowledge that his peers will never hand him over. But to watch dark-suited members of the Kenyan elite being questioned in The Hague is another thing entirely. As is watching Gbagbo being arrested in his mansion and then becoming the first former president to appear before the ICC. And so is seeing Gaddafi’s death recorded on a cellphone camera and knowing that his polished son – as polished as the sons of so many of our dear leaders – could end up at the ICC as well.

While the ICC has been busy, 2011 was also an important year for complementarity – a phrase that is regularly deployed by lawyers and those familiar with the technicalities of human rights. Simply put, while the ICC has an important role to play in prosecuting high profile figures, it remains critical in the longer-term to strengthen national judicial systems so that they are able to tackle serious crimes like genocide and crimes against humanity, including rape.

In February 2011, some government soldiers were tried by a local court for crimes against humanity in the most unlikely place – a place where the legal system has almost entirely broken down and where people have been traumatised by over a decade of conflict and widespread atrocities, particularly mass sexual violence. The place was eastern Congo – in the small town of Baraka. Few eyes from the international community were trained on the trial of Lt. Colonel Kibibi but its importance for international criminal justice should not be underestimated.

On New Year’s Day 2011, a mass rape took place in the town of Fizi. Like so many similar incidents in this scarred place, it could have ended there. The soldiers responsible for the rapes could have gone back to their camp and the women of the village, like so many others across the Congolese provinces of North and South Kivu, could have been left to try and pick up the shattered pieces of their lives. Instead, NGOs, the UN peacekeeping mission and women’s rights activists kicked into gear, collecting eye-witness testimony and piecing together what had happened – and a few months later, Kibibi and ten of his soldiers found themselves in a mobile court in nearby Baraka charged with rape and crimes against humanity.

I didn't witness that precedent-making trial but I had travelled to observe a mobile court run by the same committed group of people in 2009 and found that it was effective and – despite the heat and the insects and the ramshackle courtroom – exceedingly professional. At the trial that I attended, a crowd of about three hundred people sat in the sun, rapt. Everyone fell silent when the father of a 15-year-old spoke about his daughter’s abduction by a militaire, ten years her senior, and nodded solemnly when the Prosecutor spoke about the gravity of the charges. What struck me, as the proceedings unwound in a combination of Lingala and French, was that the court was making it a point to put the exercise of justice on display for community members. And there can be no doubt that where justice is on display, accountability surely follows - whether in remote parts of eastern Congo or on television from the plush courtrooms of The Hague.

How Africa deals with those accused of perpetrating international crimes is complicated. Indeed, while the African Union position on the ICC is politically disingenuous, there is no doubt that African institutions must be used to provide that accountability. That Congolese women can hold Congolese military officers accountable for the grossest of human rights violations - and that they can do so on their own soil - is a victory for victims everywhere. And the Congolese government should be commended for not interfering.

It is vitally important for domestic justice systems to try international crimes where they have the space and capacity to do so - and equally important for the rule of law around the world that efforts should be made to continually enhance this capacity. But this can never entirely replace the need for an International Criminal Court. Elites in Africa - and elsewhere – will continue to operate above the law in many places. Until every court system in the world can claim to be above manipulation, the ICC will be a critical institution for victims. The events of 2011 have served as a cautionary tale: the voices of victims cannot be suppressed.

It may take time, and it may require a range of different platforms, but the march of progress for victims of crimes against humanity is unstoppable.

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