Institute for Security Studies (Tshwane)
Holding former heads of state accountable for atrocities seems to be catching on in the region.
04 MAY 2017 / BY PETER FABRICIUS
Last week’s decision by the Appeals Chamber of the Extraordinary African Chambers (EAC) in the courts of Senegal to uphold the conviction and life sentence of former Chadian dictator Hissène Habré was just the latest victory – though it was certainly among the biggest – for international criminal justice in West Africa.
The Appeals Chamber rejected part of Habré’s appeal against his conviction by the EAC’s trial chamber in May 2016 for crimes against humanity – including murder and torture – committed while he was president of Chad between 1982 and 1990. Purely on procedural grounds, the court acquitted Habré of rape, including that of Khadija Hasan, one of the many brave victims of the Habré regime who gave compelling evidence at the trial. The judges found her accounts of the four times that Habré raped her believable, but said the original charge sheet had not contained sexual offences.
The EAC was created especially to try Habré and his official accomplices, although only he has stood trial.
Already there are signs that the Habré case may be inspiring others. This week, in Ouagadougou, Burkina Faso, the trial of former president Blaise Compaoré and his cabinet is due to start. They are being charged for their alleged role in killing protesters during the popular uprising in October 2014 that overthrew his government.
There are signs that the Habré case may be inspiring others
Meanwhile in Guinea, investigating judges have for seven years been probing former coup leader Moussa Dadis Camara and other former or current high-ranking officials who were then ruling the country for their role in the massacre by the security forces of more than 150 peaceful protesters and rape of more than 100 women on 28 September 2009 at a stadium in Conakry. In March this year, one of the former high-ranking officials, Aboubacar Sidiki ‘Toumba’ Diakité, was extradited from Senegal for prosecution in Guinea.
The Guinean judges have the International Criminal Court (ICC) breathing down their necks, ready – under the principle of complementarity – to step in if they fail. The ICC opened a preliminary examination into the situation in Guinea in October 2009, but has kept to the sidelines to allow Guinea to deal with the matter itself.
‘The case has moved forward slowly and has yet to proceed to trial, but seems poised to ultimately advance with increased backing by the government for the effort over time,’ says Elise Keppler, associate director of Human Rights Watch’s International Justice Program. ‘This would be the first such prosecution of its kind in Guinea.’
And in Gambia the new administration of President Adama Barrow is exploring criminal accountability for those responsible for murder, arbitrary arrests, torture and enforced disappearances during the long reign of Yahya Jammeh whom Barrow defeated in elections late last year. Barrow seems still to be undecided between a justice approach and an amnesty and reconciliation approach.
However Allan Ngari, a senior researcher at the Institute for Security Studies, says the eventual success of the case against Habré last week – after 26 years of dogged pursuit by his victims which changed the nature of African jurisprudence – seems to have given impetus to judicial moves against Jammeh. Some of Habré’s victims recently visited Gambia to provide solidarity to Jammeh’s victims and to show them that even former heads of state can be brought to justice, he says. Ngari also notes that Gambian authorities are now investigating mass graves of presumed victims of Jammeh’s atrocities recently discovered near the capital Banjul.
‘We are seeing victims pushing for justice against former heads of state who would never before have seen the inside of a court room,’ Ngari says. ‘It’s incredible.’
Support for the ICC is noticeably stronger in West Africa than elsewhere on the continent
Progress in legal accountability is also being made elsewhere in the region. The trial of the leader of the 2012 coup in Mali, General Amadou Haya Sanogo, and 17 co-defendants, including other members of the Malian army, began last year in the southern Malian town of Sikasso.
The defendants stand accused of the abduction and killing of 21 elite ‘Red Berets’ who were detained and forcibly disappeared between 30 April and 1 May 2012, after being accused of involvement in a 30 April counter-coup against Sanogo.
It is also worth recalling the pioneering 2012 conviction of former Liberian president Charles Taylor for war crimes and crimes against humanity by the Special Court for Sierra Leone. Though Taylor was arrested immediately after leaving office, he had been indicted while still president.
The contagion of criminal justice spreading across West Africa has inevitably, though, also raised the question of ‘victor’s justice’, as Ngari points out. Is the motive always an authentic desire for justice for all or is it often merely a rather sordid quest for revenge against foes?
Nowhere is this question being asked more sharply than in Côte d’Ivoire in the aftermath of the bloody civil war, sparked by Laurent Gbagbo’s refusal to cede power to President Alassane Ouattara following the November 2010 presidential elections. Between December 2010 and May 2011, at least 3 000 civilians were killed and more than 150 women raped, with serious human rights violations committed by both sides.
Terrible atrocities were clearly committed on both sides. Yet, at least so far, only those in the Gbagbo camp have been tried, either by domestic courts or by the ICC. Ivorian investigators have laid charges against some pro-Ouattara commanders but none have been tried and Human Rights Watch says some of the commanders have meanwhile been promoted. The ICC is also investigating pro-Ouattara commanders. Meanwhile, Gbagbo himself and his accomplice Charles Blé Goudé have been standing trial at The Hague for crimes against humanity for some time. And Gbagbo’s wife Simone Gbagbo has been convicted and sentenced by an Ivorian court for her role in the 2011 events, despite misgivings about the fairness of her trial.
The fervour for criminal justice in West Africa raises the question of ‘victor’s justice’
Ngari nonetheless says that in general the judicial processes in most West African countries are deemed to be independent of political power, with judicial officers investigating suspects before referring them to trial. He contrasts this with the investigative process in a country like South Africa which is widely suspected of being politically tainted.
And one could add that, whatever the motivation, justice remains justice, provided that it is indeed meted out in fair trials.
The fanfare must also be tempered by doubts about whether Jammeh or Compaoré, for instance, will be extradited from exile (in Equatorial Guinea and Côte d’Ivoire respectively) to face the consequences of their alleged crimes, although the Habré case has increased the pressure and demonstrated how long the arm of the law can be.
Ngari also notes, significantly, that the rest of the continent has so far remained largely immune from this contagion of international criminal justice sweeping West Africa. Elsewhere, he says, the only successful case so far has been the ICC conviction in 2016 of former Democratic Republic of the Congo (DRC) vice president Jean-Pierre Bemba for war crimes and crimes against humanity in neighbouring Central African Republic in 2002 and 2003.
Support for the ICC, more specifically, is also noticeably stronger in West Africa than elsewhere on the continent. This was again evident in January this year when leaders at the African Union (AU) summit decided to consider a strategy for collective withdrawal of African states from the court. Nigeria, Senegal, and Cabo Verde entered formal reservations to the decision – an unusual step in the AU. Burkina Faso, Côte d’Ivoire, Mali, Ghana and Sierra Leone later expressly affirmed their commitment to the ICC, along with Malawi, Zambia, Tanzania, the DRC, Lesotho and Botswana from Southern Africa.
Habré’s conviction last year was ‘a wake-up call to tyrants everywhere that if they engage in atrocities, they will never be out of the reach of their victims’, says human rights defender Reed Brody.
Maybe, at least as far as Africa is concerned, that should read ‘tyrants in West Africa’ rather than ‘everywhere’.
Peter Fabricius, ISS Consultant