Introduction
There are several key legal issues that seem to dominate the African and international media in recent months. Firstly, the African Union’s Assembly of Head of State and governments at its 28th Ordinary Session held in Addis Ababa, Ethiopia, made an unparalleled decision against the International Criminal Court (ICC). In a resolution, the African leaders “welcomes and fully supports the sovereign decisions taken by Burundi, South Africa, and The Gambia as pioneer implementers of the Withdrawal Strategy, regarding their notification of withdrawal from the ICC.” In addition, the organization also called on its member states to withdraw from the ICC.

However, Human Rights Watch indicated that “Nigeria, Senegal, and Cape Verde ultimately entered formal reservations to the decision adopted by heads of state.” Also, “Liberia entered a reservation to the paragraph that adopts the strategy, and Malawi, Tanzania, Tunisia, and Zambia requested more time to study it.” Unfortunately, it appears that the AU is embarking on a serious campaign to withdraw Africa from the ICC which has been a medium that is designed to end impunity in Africa and the developing world.

Prior to the 28th Ordinary Summit of the African Union, the governments of South Africa and the Gambia had contemplated on pulling out of the International Criminal Court (ICC). South African is claiming that the mandates of the ICC are in “violation” of the conventions of the African Union (AU), an organization of African governments and states. The Gambia has dismissed the ICC as a court that is biased against Africa. . (The Gambia, under the Adama Barrow Administration has since returned to the jurisdiction of the ICC).

Secondly, reports of the trial and conviction of the former President of Chad in Dakar, Senegal is noticeable. The third visible legal element includes news regarding the start of the trial of the former first lady of Ivory Coast, Ms. Simone Gbagbo, in Abidjan. It is essential to note that the focus of this analysis is designed to look at the challenges of prosecuting war crimes and crimes against humanity in the African courts against the backdrop of the African Union’s decision against the ICC.

This analysis also comes at a time when victims of injustices on the African continent are painfully seeking legal redress from the International Criminal Court in The Hague for crimes allegedly committed by African leaders against their own population. However, African leaders are contending that any claim of injustice and abuse must be litigated in the African courts and under the guidance of African judges.

Notwithstanding, victims have countered that the African courts do not have the capacity to deliver the justice that they urgently demand. The victims argue that the African courts are corrupt and easily influenced by political considerations.
The Senegalese Trial
A Senegalese based court that evolved from the African Union sentenced former Chadian President Hissene Habré to life in prison on May 30, 2016, for torture. Mr. Habre has been on trial on charges of war crimes, crimes against humanity and rape dating to his presidency from 1982 to 1990.

The trial started in July 2015 following nearly fifteen years of delay. The surfacing of the trial was a result of massive advocacy by both victims of the Habre’ regimes and human rights campaigners.

Mr. Habre fled to Senegal in 1990 after his government was overthrown in a military coup. He subsequently sought and received political asylum in Senegal. The African Union succumbed to pressure and supported the arrest and detention of Habre in 2013 and which resulted in his trial and conviction.

Mr. Habre had consistently rejected the authority of the Senegalese court and refused to testify before it. At some point during the trial, Mr. Habre was forcibly led into the court room and his supporters considered the court proceedings as “staged” to impeach the service of the former Chadian leader. Yet, victims and human rights campaigners have hailed the conviction as a closure for the victims of the Chadian dictator. The second issue that caught my attention is the trial in Ivory Coast.

The Ivory Coast Case
In the West African nation of Ivory Coast, official known as Cote D’Ivoire, the former first lady of the country, Mrs. Simone Gbagbo is on trial. The trial resumed recently in Abidjan, the country’s capital. Mr. Gbagbo is the wife of former Ivorian President Laurent Gbagbo who was deposed with the help of French troops stationed in the country’s capital Abidjan.

The country’s Attorney-General has charged the former first lady for undermining “state security.” The Ivorian Government accused Mrs. Gbagbo for her alleged participation in human rights violation of the supporters of now Ivorian President Alassane Ouattara.
The trial of Mrs. Gbagbo has its basis in the aftermath of the 2010 post-elections conflict that witnessed the murder of hundreds of people on both sides of the conflict involving then President Gbagbo and then rival Ouattara. A human tragedy emerged when Mr. Gbagbo declined to accept the outcome of the results of the elections.
As soon as the trial of Mrs. Gbagbo began in Abidjan, victims and human rights advocates raised concerns about its credibility. Reports indicated that three rights groups representing nearly 250 victims of the Ivorian bloodbath said they would refuse to take part in the trial of Mrs. Gbagbo because of doubts over its credibility.
Media reports quoted Pierre Kouame Adjoumani, of the Ivorian League of Human Rights as saying that the trial lacked relevance. Mr. Adjoumani reportedly indicated that Mrs. Gbagbo was “accused of crimes against humanity, something she could have only done through an organized group – so why is only she being judged?”

Mrs. Gbagbo who is 65-year-old, along with eight civilian and military devotees of her spouse, former president Laurent Gbagbo, commenced under substantial security and was broadcast on local radios.

African Governments and ICC
Arguably, it is unthinkable that the African judicial system has the capacity to attempt to prosecute allegations of rights abuses and crimes against humanity. Over the years, the International Criminal Court in The Hague has served as the arbiter of justice for African and most of the developing world.

The creation of the International Criminal Court (ICC) in The Hague has witnessed the prosecution of some of the leading dictators in Africa. The case of rebel leader turned President Charles Taylor who is now in a British prison in the United Kingdom is a classic example. In spite of the fairly good work that the International Criminal Court is going, it continues to receive frequent disdain from a cross-section of African leaders.

For instance, the African Union unashamedly refused to honor the arrest warrant issued by the International Court against the Sudanese President. The government of South Africa declined to implement the arrest of the Sudanese President during his state visit despite the country’s consent to the agreements of the ICC at the time. But the High Court in South has blocked the withdrawal of the southern African nation and that reversal decision has been conveyed to the United Nations..

Surprisingly, the African National Congress, which currently provides leadership for the South African state, had sought justice against apartheid through the International Criminal Court during its struggle.

Indeed, times have changed and the revolutionaries are rejecting what they called “international intervention” in the African judicial matters. It is sad and unprecedented that the predominantly black government that grew out of the collapse of apartheid can now side with the dictator in the person of the Sudanese President.

Selective Prosecutions
So, it is somewhat surprising that the African Union has had confusing positions to defend against the prosecution of the Sudanese President while supporting the prosecution of former President Habre’ and former first lady Mrs. Gbagbo. However, while for example, the Ouattara government is joyfully parading Mrs. Gbagbo through the Ivorian criminal court system, President Ouattara has strongly refused to turn over former Burkina Faso President Blaise Compaore to his home government for prosecution on charges of human rights violations and murder.

It can be recalled that a combination of the Burkina Faso civic and military groups forced Mr. Compaore from power forcing him into exile in Ivory Coast. The government in Burkina Faso has issued an arrest warrant for Mr. Compaore for allegedly murdering then President Thomas Sankara during an October 1987 military coup d’état. Mr. Compaore has been offered Ivorian citizenship under the direction of President Ouattara to protect him from prosecution. As a side note, Ivorian President Ouattara has family roots in Burkina Faso.

Still, in the Ivory Coast, it is evident that Mr. Ouattara served as the leader of a loose group of rebel groups that launched an armed revolt against the Gbagbo government.

Data indicates that the Ivorian post-election crisis left 3,000 dead. Genocide Watch says that forces backing both former President Laurent Gbagbo and current President Alassane Ouattara were implicated in war crimes and possibly crimes against humanity during that period of conflict.
In 2013, Mr. Alan White, the former chief of investigations for the United Nations Special Court for Sierra Leone called on the International Criminal Court (ICC) to investigate and prosecute leaders of the Forces Nouvelles, the rebel group loyal to President Ouattara over alleged atrocities the group committed during the civil war in Ivory Coast.

Mr. White observed at the time that there was a need to ensure balanced investigation and a balanced prosecution. He pointed out that “Quite frankly that is one of the areas right now that the country of Ivory Coast is struggling from is the fact that there is not a sense of justice.”

Implications and Challenges
While it should be a welcome experience for African Governments through the African Union to mirror the prosecution of crimes and abuses allegedly carried out by individuals of power and influence, such approach must be designed to deliver actual and equal justice. This analysis is no sympathizer to individuals who are indicted for crimes against humanity and other dreadful crimes.

However, if such prosecutions are to be taken seriously, then all African leaders and their allies who are connected to war crimes and systematic killings of their people must be brought to justice to include former Burkina Faso President Blaise Compaore and leaders of the Ivorian rebel group the New Forces that are loyal to President Ouattara as well as the President Bashir of Sudan.

I believe that if the Senegalese government can embrace the challenges to revoke the asylum of former Chadian President Hissene Habre and subsequently support his prosecution, conviction, and sentencing to twenty years in prison, then the African Union must follow the same lead in bringing Mr. Ouattara and the Sudanese President to justice.

Moreover, the African Union as a matter of urgency must also seek to support the prosecution of the rebel group- The New Forces in Ivory for their role in pre and post-elections killings in Ivory Coast. But if only the supporters of former President Laurent Gbagbo are singled out for prosecution as is currently observed, the intent and objective for justice and fair-play will be elusive.

It is not too late to meet the challenge. African governments must demonstrate that political will to consider the serious implications that their disdain for the ICC has in undercutting justice in Africa. The African Union can support the ICC while at the same time engage and collaborate with the court and work-out their concerns.

The African Union has an obligation to develop and implement a judicial system that will work for everyone; the poor, the have little, have nothing, the rich and the powerful by recognizing the ICC as a partner in the attainment of the rule of law on the continent. It is important to note that the AU’s current position on the ICC has the potential to undermine goodwill and support the African judicial system that needs international support to clean the African criminal justice system of corruption, bias, and political control.

It seems irrational that the AU will undermine the authority of the ICC especially when it does not have the political resolve and capacity to enhance the credibility and viability of the African criminal justice system. The wrong-headed AU resolution has further opened a gateway for African leaders to enhance their dictatorial rule. At the same time, the decision will ultimately undermine the prosecution of war crimes and crimes against humanity in Africa.

Meanwhile, it is hoped that more African countries will join Nigeria, Senegal, and Cape Verde, Liberia, Malawi, Tanzania, Tunisia, and Zambia to push against the withdrawal from the ICC. There is no doubt that such an action will require courage and strong political determination because it deserves the sustained effort to end impunity on the African continent.

By: Kai G. Wleh
Editor-In-Chief
African Star