FORGET THE ICC: AFRICA NEEDS TO REVIVE ITS TRADITIONAL JUSTICE SYSTEMS
By Ronald Elly Wanda
Friday, July 16, 2010.
The beginning of June 2010, saw Uganda’s capital Kampala, the heartbeat of Africa, play host to the first ever Review Conference of the Rome Statute, which in 2002 gave birth to the International Criminal Court (ICC). A timely event that triggered a renewed interest in discussions centered on the limits and possibilities of international justice serving African interests. Questions such as: “is there sufficient gravity for Africans to depend on the International Criminal Court (ICC) to deliver local justice?” dominated civil talks at malwa (local brew) dens in towns and villages right across the continent.
In East Africa, the Kenyan Nobel Peace laureate, Wangari Maathai, added to the works. Writing in an East African weekly prior to the conference, and in reference to her native Kenya- which saw 1300 killed and more than half a million internally displaced following the post-election violence of late 2007, she argued that Africa has leaders that make violence against humanity seem worthwhile.
“These leaders”, Maathai observed, “mobilized their supporters, mostly from their communities, to go and kill and rape and destroy members of other communities”. Accordingly, Maathai affirmed that Africans support the ICC in bringing to an end the culture of impunity by holding those who commit such crimes in Africa to account. “Impunity”, noted the Professor, “not only perpetuates crimes against women, children and other civilians, it teaches successive generations how to continue the violence”.
Whilst it is difficult to fault the professor, my Pan-African impulse is very much enticed. From ancient European philosophers namely Plato and Aristotle, to notable African thinkers, Anta Diop, Nabudere, Mazrui, Mafeje and undoubtedly many others, runs a thread of universal agreement that the idea of justice inevitably suggests the notion of certain equality. In Africa this has not been the case.
Given five centuries of systematic destruction of African communities’ political, cultural, economic and social structures by Europeans, Africa is yet to attain psychological well-being from the sustained assault on its humanity, which continues to this day under different guises now including the ICC’s “legal colonialism”.
Exogenous forces aside, today’s societies in Africa are also deeply marked by class, ethnicity, gender, religion and other dimensions of difference and inequalities, making injustice instead of justice the norm. The continent has been forced to continue nursing a deep sense of what my good friend, Professor Mammo Muchie, has termed “wounded psyche” in its memory that keeps attacking the marrow of its social, political as well as its legal confidence.
Since flag independence in the 1960s, African governments have been in a rush to normalize authoritarian rule and human rights abuses under the auspices of Maendeleo (development) and economic growth. A short stroll in any African village today confirms that the globalised Western culture of justice delivery or for that matter innovation, that most African leaders seem to trust, has not improved the well-being of our local communities or delivered justice for them.
On the contrary, it has often blocked viable indigenous innovation of cultures and suffocated African justice. Here in East Africa, cultures of innovation have largely accrued from the jua kali (informal), and not the formal sector. Indigenous cultural innovations have also been at the centre of development in most Highly Indebted Poor Countries (HIPC) such as in Uganda or her slightly richer sister Kenya, notably because of wanainchi (citizens) exceptionally limited access to capital.
As such, when it comes to delivering justice in Africa, we ought to revise our priorities by doing away with existing pre-conceived ideas that might have worked within the European cultural setting as they have clearly not acted up in the face of socio-cultural heritages of African societies, neither has the opposite- the Afrikanisation of western concepts of justice delivery.
This is because the Western justice paradigm remains retributive, hierarchical, adversarial, punitive and is guided by codified laws and written procedures. Whilst on the other hand, African justice systems have always been guided by unwritten laws, traditions and practices like inclusiveness, consultation and consensus. These are learned primarily by example and through the oral teachings of elders.
In any legal matter, every adult member of the community gets involved into solving a conflict and they all focus on the need to resolve issues so as to attain peace and social harmony. The community is involved in the entire process; from disclosure of problems, to discussion and resolution, to making amends and restoring relationships.
Recently while on a study visit to Iwokodan, an Iteso clan in Kamuge, Pallisa District, north eastern Uganda, I was narrated a story of a land dispute involving two community members that took twenty years being tossed around courts that was eventually resolved within days after it was referred back to the clan. In that case an amicable resolution was reached promptly because of elements such as; the just act is correctness, the rejection of inequality; reason instead of arbitration; conscience instead of inhumanity and so forth that one find in traditional African justice unlike the existing westernized arrangement. Another example is Rwanda where the re-establishment of its traditional courts (the Gacaca); to help deal with the crime of genocide and foster reconciliation between its communities has yielded a positive outcome.
When it comes to international law, it is fair to argue, African states have failed to abide by their international fair trial obligations probably because these standards have been impractical in the first place, given the realities of poverty, illiteracy and strong cultural beliefs that characterize most of our communities in Africa. As a result, the law applied by the Western style courts is felt to be so out of touch with the needs of most African communities and coercion to resort to them therefore amounts to denial of justice.
As for the ICC, we must reject it on the basis that it is an epithet of legal colonialism by the European Union (EU). Not only does it receive 60 percent of its funding from the EU, it has also ignored all European or Western human rights abuses in conflicts in Iraq and Afghanistan or human rights abuses by states considered “darlings of the West”.
Despite over 8,000 complaints about alleged crimes in at least 139 countries, the ICC has started investigations into just five countries, all of them here in Africa. The ICC’s double-standards and autistic legal blundering in Africa has derailed delicate peace processes that have instead prolonged devastating civil wars.
As Dr David Hoile, author of The International Criminal Court: Europe’s Guantanamo Bay? has observed, “the court’s proceedings ought to be questionable given its judges, some of whom have never been lawyers, let alone judges, are appointed as the result of vote-trading among member states”. Adding, “The ICC has engaged in prosecutorial decisions which should have ended any fair trial because they compromised the integrity of any subsequent process. Its first trial stalled because of judicial decisions to add new charges half-way through proceedings”.
African governments’ continued reliance on donor funding has made societies in Africa vulnerable to the vulgaries of shifting donor conditionalities and (wicked) interests. Malawi’s president, Bingu wa Mutharika’s recent retract from his 14 year prison sentence of Monjenza and Chimbalanga, a homosexual couple, and Uganda’s Yoweri Museveni’s disposal of the Anti-Homosexual Bill (the so called Bahati Bill) respectively, serves as points in reference.
Therefore, concerns for the emancipation of the continent from the ravages of foreign domination and underdevelopment and building of a new Africa from the grassroots upwards ought to be a concern for us all. As renowned scholar Dani Nabudere forcefully urges, “we must defend African people’s dignity and civilisational achievements and contribute afresh to a new global agenda that can push us out of the crisis of modernity as promoted by the European enlightenment”.
Ronald Elly Wanda is a Lecturer at Marcus Garvey Pan-Afrikan University, Mbale, Uganda.
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