Africa: Birth of the African Court of Justice

The institution of international law has been gathering momentum since the end of the First World War and the establishment of the League of Nations. Since then, the development of the international criminal justice system has been fast-tracked, mainly by international regimes such as the International Court of Justice (ICJ), including the International Criminal Court (ICC) which has become an abomination of the application of international law.

Interestingly, international criminal justice is not the private space of the ICC, it is the primary concern of national and regional institutions. Common sense is slowly prevailing that synergy, rather than hegemony, should be at the forefront of the tenets of the international criminal justice system.

It is worth noting that the African Union has become the first international institution in the world to come up with an initiative for the setting up of an international criminal justice system at the regional level, through an international crimes chamber to the African Court of Justice and Human and Peoples Rights.

The birth of this initiative, through a protocol adopted by the African Union Heads of State and Government Summit in Malabo, Equatorial Guinea in June 2014, should put to rest a plethora of accusations that Africans are not interested in justice.

Admittedly, many African states are still hesitant to ratify this historic protocol. The protocol required ratification from 15 member states for the African Court to start its operations. While no state has yet ratified the protocol, nine countries have signed the treaty.

Like anything else made in Africa, apart from its abundant natural resources the Malabo Protocol has been met with skepticism and criticism from some quarters, primarily from those who wish to continue subjugating Africa perpetually, ad infinitum.

The Malabo protocol contains a list of 14 very progressive prosecutable transnational and international crimes. Certain provisions in the protocol are obviously contentious and controversial, but that is the nature and scope of any international treaty.

Those provisions need to be subjected to, and tested at national and regional levels, and thereafter amended accordingly by the concerned parties. The fact that the protocol grants immunity from prosecution to sitting heads of state by the court, should not be seen as the alpha and omega of the intended international criminal justice system to be managed by the court.

It is small wonder that seasoned Uncle Toms are harping on this particular provision. They conveniently forget that immunity is granted to their sitting heads of state in their citadels. They also forget that the late president of Chad, Hisenne Habre, was prosecuted at the Extraordinary Chambers in Senegal by an African court under the guide of the AU.

Some neo-colonial megaphones have unashamedly started accusing Africa of trying to use the African court as a scapegoat to avoid prosecution by the ICC. It should be borne in mind that international criminal justice is not the exclusive function of the ICC.

The ICC should merely complement and support national and regional criminal justice systems in Africa to ensure that it serves as a court of last resort, not of first instance - that is if Africa will still remain party to the ICC. It is accepted that the Rome Statute is a great piece of work, at least on paper. However, not everything that glitters is gold. An example of the USA regarding membership of the ICC is fundamental in the conduct of international law.

Not only did the USA refuse to ratify the Rome Statute, it passed a legislation allowing for the use of military force to "rescue" any American who might be held by the ICC for contravening the Rome Statute.

The American Service-Members' Protection Act (ASPA) enacted in 2002 is a USA federal law that aims "to protect United States military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal court of which the United States is not party".

ASPA authorises the USA president to use "all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the ICC". ASPAS also prohibits cooperation between the USA and the ICC.

This is the position of the USA on the ICC. It is clearly a hostile position. If we are to buy into the litany of simplistic arguments advanced by white supremacy apologists, anti-Africans and Uncle Toms masquerading as defenders of innocent Africans against tyranny, one would hope that we also embrace the notion that what is good for the goose is equally good for the gander.

The imbalance in the dispensation of international criminal justice is reason enough for the creation of an African Court of Justice and Human and Peoples Rights. This has been the key to the argument between Africa and the ICC.

Dr Charles Mubita holds a PhD in International Relations from the University of Southern California.