opinionBy Cheryl Frank and Anton Du Plessis
The rule of law has had a tough time in Africa recently.
The recent decision by African Union (AU) leaders to effectively shield the most powerful from justice reflects the reality that when the rule of law collides with politics and power, it is not usually the rule of law that emerges victorious.
There are many sources of this power, with the most toxic mix resulting from the confluence of politics, money and organised crime. This is true across the globe, and not just in Africa.
It is telling that the 2013 Ibrahim Index of African Governance identified the lack of rule of law as one of our continent's most significant challenges. Confronting this problem is not just about policy reform and improved capacity. More than anything else, it requires courageous leadership.
There are, however, pockets of hope. The Africa Prosecutors' Association (APA), with membership from 30 national prosecuting agencies from across the continent, stated at its 8th annual conference in Cape Verde last week that 'we as prosecutors have a vital role to play in safeguarding the rule of law and human rights in Africa, especially where powerful people may have infringed the law. We will assert independence and courage in the prosecution of such crimes'.
The APA conference celebrated the notable achievements of many African prosecutors. The Zambian Director of Public Prosecutions (DPP), Adv Muthembo Nchito, who prosecuted former Zambian presidents Frederick Chiluba and Rupiah Banda on corruption charges told his fellow prosecutors last week, 'one of the principal outcomes of corruption is its assault on the rule of law'. He added, 'Prosecutions provide an opportunity to restore a culture of accountability and begin to correct a disfiguring culture of impunity'.
The APA declaration and the successes of its members matter because history has shown the importance of courageous and independent prosecutors who can play a leading role in ensuring that justice applies to the powerful and that the rule of law is upheld.
Although national prosecutors carry the heaviest burden, their international counterparts also play an important role in holding powerful people to account for their actions.
It is therefore concerning that on 12 October African leaders at the AU Extraordinary Summit sought to shield Kenya's president and deputy president from facing international justice at the International Criminal Court (ICC) by resolving that 'No charges shall be commenced or continued before an international court or tribunal against a serving president or senior member of a government in power'.
Other reports indicated that western diplomats were ready to consider the AU's request to the UN Security Council to defer these prosecutions for a year (under Article 16 of the Rome Statute which established the ICC), ostensibly due to the perceived importance of Kenya's leaders in responding to the recent terror attack on Nairobi's Westgate shopping mall.
A senior European diplomat is quoted in the Telegraph as saying: 'Uhuru is not an indicted figure who is defying the court like Sudan's president (Omar) Bashir.
He is someone who is working closely with the West in a region in chaos that needs to tackle a very worrying terrorist situation', adding that a solution must be found that avoids a breakdown in relations with Kenya's President Kenyatta or the court's authority.
Without diminishing the importance of global and African counter-terrorism efforts, it would be unfortunate if terrorism were somehow elevated in status above grave international crimes.
If the scales are tipped in favour of Kenya's role in fighting terrorism - and against holding its indicted leaders to account for alleged mass atrocity crimes - it would expose the double standards of international politics.
The assertion of the rule of law is not just about good legislation and the capacity for its implementation. It is not the institutions of justice and accountability that fail, it is their leaders that do.
Mukesh Kapila, a former UN official who has been instrumental in bringing international attention to a range of human rights atrocities, including the situation in Darfur, Sudan, convincingly argues that much depends on brave leadership in exposing wrongdoing and delivering justice. The Zambian DPP's comments argue for the same from prosecutors.
This does not, however, absolve the rest of us from responsibility. Courageous leadership is needed from all those that wield power, including business and civil society.
Cheryl Frank, Programme Manager, Transnational Threats and International Crime Division, ISS Pretoria and Anton du Plessis, Deputy Executive Director, ISS