The Challenge of Accountability for Grave Crimes

The Challenge Of Accountability For Grave Crimes

Eastern Africa and the Great Lakes region in particular – symbolizes in the most tragic way, the shift from grave crimes being the by-product of interstate or international relations to their commission in the strict limits of the national sphere. Historically, international crimes (war crimes) were mainly committed as part of the activities of states in their relations with each other or towards peoples not considered part of their citizenry. International crimes were also committed to protect narrow conceptions of national sovereignty (genocide, crimes against humanity, piracy, or mercenary). However, in recent times such crimes have increasingly been committed in the course of the exercise by the people of their rights. The crimes are therefore, very often, the result of state resistance to free exercise of people’s rights. This is particularly true in East Africa, a region most affected by the bloody violence related to electoral rights and resulting from politics of ethnic exclusion. Whether it is exclusively the work of state security forces or it also involves more or less organized non-state actors, political violence almost always accompanies elections in the region. Over the past decade, most countries in the region embarked on two categories of important reforms: to establish appropriate norms and mechanisms to fight serious crimes and, in the electoral field, to improve the quality of people’s participation in governance. In most cases, however, the two sets of reforms were carried out parallel to each other, without any effort to link them together. In Kenya, for instance, reforms undertaken to prevent electoral debacles of the magnitude of what was experienced in 2007 were carried out separately from and parallel to reforms in the legal field. These led to the transformation of the judicial system and gave birth to the idea of creating a division for international and cross-border crimes. Electoral offences, however, are not on the list of crimes under the jurisdiction of the proposed division. This is despite the fact that they were at the origin of the post-election violence of 2007/2008. The fight against serious crimes committed in connection with the exercise of the people’s political participation is therefore one of the main projects that await actors in the region in the coming years. One element of this project is the need to criminalize electoral offences and to treat them as the serious crimes they are. We cannot develop special mechanisms to deal with serious crimes, such as the international crimes division in Uganda or the proposed special court mandated by the African Union for South Sudan, while, at the same time, closing the jurisdiction of these mechanisms from violations of electoral laws that trigger the most serious crimes, as the case of Burundi recently reminded us. The East African region faces another challenge, that of international cooperation in the fight against serious crimes. One of the attributes of national sovereignty is the prosecution of crimes, which is mainly in the realm of the domestic jurisdiction. However, the punishment of the gravest crimes – also rightly called international crimes – sometimes sets an exception to this principle and lends itself better to an international jurisdiction, or at least a strong international judicial cooperation. The paradox is that the East African countries have been deeply affected by serious international crimes. However, the countries have been the most resistant to the role of the international community in the repression of these crimes. While it was the first country to refer a situation to the International Criminal Court (ICC), Uganda has since been leading the anti-ICC campaign. The country has given itself a flag-bearer role, which recently culminated in the unusually violent diatribe President Museveni meted against the ICC at his inauguration. For the past four years, Kenya has deployed the bulk of its diplomatic assets against the ICC, including initiating repeated calls for African state parties to the ICC to withdraw en-mass from the court. More recently, the leaders of Burundi were busy frustrating a fact-finding mission of the African Union on the serious crimes committed as a result of the violation of the constitution by President Nkurunziza. Almost at the same time their South Sudanese counterparts were writing opinion articles in international media to oppose a special criminal court whose establishment was endorsed by the African Union. For its part, Rwanda continues its decade-long crusade against the exercise by Western courts of universal jurisdiction over serious crimes when African leaders are allegedly involved in those crimes. Instead of giving the impression of having personal issues with international law whenever it comes to combating serious crimes, the East African Community members must demonstrate their seriousness to fight against these crimes by welcoming international cooperation. This starts with respect for investigative procedures and implementation of international judicial institutions recommended by the East African Community and the African Union. Civil society in the region is expected to increase its efforts towards this goal by working with governments to help them in their request for international cooperation to fight serious crimes.

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Pascal Kambale is a senior advisor at the Open Society Foundations’ Africa Regional Office (AfRO)

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