6 June 2016

South Africa: Has Dakar Provided a Legal Blueprint for Africa?

Photo: Le Soleil
Hisséne Habré

The verdict has been handed down - former Chadian dictator Hissene Habré is guilty of crimes against humanity. However, Legalbrief reports that the jury is still out on whether the Extraordinary African Chambers that handled the case has provided a blueprint for the continent which threatens to lurch away from the International Criminal Court.

Although it took decades to bring the former strongman to his knees, the hybrid court has been saluted for setting a global precedent by prosecuting a former leader of another nation by using the legal principle of universal jurisdiction which allows countries to try people for crimes not committed in their territory.

The cries of joy in the Dakar courtroom a week ago said it all. The fact that the victims of Habré's regime and their supporters waited patiently until the presiding judge, Gustave Gberdao Kam, closed the session and dissolved the Extraordinary African Chambers (EAC) before celebrating is testimony to the respect everyone has shown for this court over the past 10 months.

Journalist Celeste Hicks said she had a lump in her throat as she watched Souleymane Guengueng and Clement Abaifouta - two men at the heart of the civil society case against Habre - embracing. In an analysis on the allAfrica site, she notes that the trial was the culmination of 25 years of tireless campaigning by civil society activists, many of them former inmates of Habré's network of secret prisons which were run by the dreaded DDS (Directorate for Documentation and Security).

'We may never know the exact number of people that died as a result of neglect and torture in those prisons, as well as attacks on ethnic groups who opposed his rule and massacres in villages. But we do now know thanks to witness testimony, of the appalling brutality of Chadian security agents during Habré's rule from 1982 to 1990.'

Recounting one of the most dramatic moments in the trial, she said witness Khadija Zidane stood metres from Habré in the courtroom and accused him of having personally raped her on four occasions.

'The question of whether this so-called "hybrid court" model could be replicated for use in future human rights abuse cases is now on many people's lips. Some have even speculated that the success of this trial - completing its hearings within a year without interminable requests for further funding - could influence the future of the International Criminal Court (ICC) which has struggled in its attempts to prosecute sitting African heads of state, such as Omar al-Bashir of Sudan and Uhuru Kenyatta of Kenya.'

Hicks points out that the EAC was created by the AU within the existing Senegalese justice system. In the end, she says she believes it will be the symbolism of the trial which will have the greatest impact on future African justice.

'Here we saw Chadian lawyers representing Chadian victims on African soil. The entire case was filmed and streamed live, and significant efforts were made to educate ordinary Chadians about the case and its importance. This focus on victims has been crucial. As Souleymane Guengueng, the former Habré victim who fought to the end for justice, put it: "I think that has really opened the minds of people in Chad - that the president is not an untouchable god."'

The successful prosecution has galvanised the movement for a permanent forum for justice in Africa, but experts say several legal roadblocks stand in the way.

'We want a permanent, continent-wide system for justice in Africa,' said Aboubacry Mbodj, secretary-general of Dakar-based African rights group RADDHO. 'That's why we will continue to demand from the African Union a permanent mechanism so that heads of state are not above the law.'

A report on the BDlive site notes that he accused the AU of 'dragging its feet', citing the adoption of the Malabo protocol in 2014, which envisaged an international criminal law section for the African Court of Justice and Human Rights that is yet to be established.

Angela Mudukuti of the Southern Africa Litigation Centre, which unsuccessfully pushed for South Africa to arrest al-Bashir for war crimes when he was in the country, said the AU's conduct on impunity was sometimes a 'contradiction'.

'They have come out strongly on several occasions, encouraging their member states not to co-operate with the ICC for the arrest of sitting heads of state,' she said, including over Bashir, who has yet to stand trial in The Hague despite an ICC indictment.

Ali Ouattara, president of the Ivorian branch of the Coalition for the ICC, which works to strengthen international co-operation between ICC member states, said the international court should act as a complement, given Africa's past weaknesses in bringing its own despots to book. 'We hope that Africa can judge Africans in a permanent way and we hope that the ICC will always be there as a buttress,' he said, according to the report.

Full report on the BDlive site

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