9 March 2016

Africa: Can Gbagbo's ICC Trial Quench Côte d'Ivoire's Thirst for Justice?

analysis

On Monday, 7 March, the trial of Laurent Gbagbo resumed at the International Criminal Court (ICC). The former Ivorian president and his co-accused, Charles Blé Goudé, are on trial for four charges of crimes against humanity (murder, rape, persecution and other inhumane acts) that occurred during the post-electoral crisis of 2010-2011.

The crisis resulted in more than 3 000 deaths. Without underestimating the legal, political and even geopolitical issues at stake, it is important to note that the trial is not in itself a definitive response to the need for justice for all the victims. While the proceedings at The Hague are currently drawing much attention, the judiciary in Côte d'Ivoire must also manage cases linked to the crisis with due priority. Not only should the Ivorian judiciary do so efficiently, but it must also work to enhance its credibility.

If the ongoing trial at The Hague is to mete out some level of justice for the victims, it is imperative that this momentum is carried through at the national level by means of an appropriate judicial response. This would be in accordance with President Alassane Ouattara's statement of 4 February that 'he will no longer send Ivorians to the ICC,' arguing that the Ivorian justice system had been 'rebuilt'.

The president's stance raises important questions given the numerous challenges facing the Ivorian justice system. Critics say that the system lacks impartiality and that mechanisms for justice are not implemented effectively - as illustrated by the existence of so-called political prisoners, and dysfunctional proceedings observed in certain trials.

The partiality of the Ivorian justice system is emphasised in a recent report by Human Rights Watch (HRW), published on 8 December 2015. The report points out that almost all of the cases that have been initiated since the crisis target supporters of the old regime. Similarly, in its latest annual report - published on 26 February - Amnesty International states 'that a number of perpetrators of crimes committed during the post-electoral crisis continues to escape justice'. This certainly seems to be the case for members of the Republican Forces of Côte d'Ivoire (Forces républicaines de Côte d'Ivoire, or FRCI). Formerly linked to the Armed Forces of the New Forces (Forces armées des forces nouvelles, or FAFN), many members are known to have militarily supported the establishment of the current regime.

So far, only eight former FAFN leaders have been indicted for their involvement in the post-electoral crisis. The National Commission of Inquiry's (CNE) report on violations of human rights and humanitarian law, which was submitted to Ouattara in 2012, showed that both parties involved in the conflict were responsible for the post-electoral crisis. Despite this, there has been very little movement in the investigation of 20 'pro-Ouattara' soldiers who were accused of committing crimes during the crisis. Even though these soldiers were formally charged by the Special Cell of inquiry and investigation (Cellule spéciale d'enquête et d'instruction, or CSEI), most of them continue to occupy important positions in the security apparatus.

The way in which legal proceedings have been conducted in some cases has also fuelled criticism. Referring to the trials of some allies of the former regime, Amnesty International reported that some of the procedures have compromised their right to appeal. Several observers have further noted a lack of presumed innocence in recent trials, for example with the soldiers accused of murdering former president, Robert Guéï. In a number of judgements, the evidence presented seems insufficient to justify culpability - reinforcing the view that the accused were presumed guilty prior to the trial.

Arbitrary arrests and detentions of opposition figures - primarily from the former ruling party, the Ivorian Popular Front (Front populaire ivoirien, or FPI), add to criticism of how the post-election crisis has been managed by the Ivorian justice system. The existence of political prisoners - individuals who are detained for months on end without being formally charged - is a case in point.

It is unclear how many such prisoners are being detained. According to Pascal Affi N'Guessan, president of the FPI, there are around 300, while the Ivorian authorities say there are around 250. Amnesty International, meanwhile, speaks of 'more than 200 supporters of former President Laurent Gbagbo', and highlights the abuse that some have faced. In a report of 15 May 2014, the UN independent expert on the human rights situation in Côte d'Ivoire also outlined instances of torture and other human rights abuses.

The release of some prisoners close to the former government - some provisionally - and the unfreezing of assets, have generally been interpreted as a result of political bargaining. This has also been reinforcing the impression that acts are guided by political, rather than legal consideration.

The verdict on 10 March 2015 of the trial of Simone Gbagbo and 82 other defendants charged with endangering the security of the state, participating in an insurrectionary movement, and disturbing public order - has, therefore, raised many questions. While some of her co-defendants, including Affi N'Guessan, received penalties corresponding to the length of their provisional detention (18 months in prison, in N'Guessan's case) - others, like Simone Gbagbo herself, were sentenced to 20 years in prison. N'Guessan's sentence was considered 'lenient' by some, and has been interpreted as a move of the current regime to reward Affi's efforts to bring the FPI back in the political game.

It might seem idealistic to hope for a judicial system that is totally independent from the executive, or free from political involvement. However, this should not get in the way of establishing a credible justice system. The willingness of the Ivorian authorities to revert to national justice is a move to be welcomed. It is indeed the responsibility of national institutions and stakeholders to find effective ways and means within their own countries. However, the many statements made by the highest Ivorian authorities to promote a true and fair justice system have so far remained wishful thinking. The way the Ivorian justice system has operated thus far is also a cause for concern.

The outcome of the trial in The Hague should not exempt the Ivorian authorities from their urgent responsibility to guarantee truly restorative justice for the human rights violations that occurred during the post-electoral crisis. It is also their duty to ensure its independence and credibility.

Côte d'Ivoire, having inherited a decade-long political and military crisis in addition to the post-electoral crisis, is still a deeply divided country. A justice system that does not promote the strengthening of social cohesion could entrench or increase such divisions. And if Côte d'Ivoire's social fabric continues to fray, this will also severely limit prospects for economic growth.

Armande Jeanine Kobi, Junior fellow, Conflict Prevention and Risk Analysis Division, ISS Dakar

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