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Africa decides | The World Weekly

At its 26th summit, the African Union (AU) prepared to tackle the major issues of the day in a bid to shape the continent’s political and economic aims for the year ahead. Though the central theme of the conference was officially human rights, and women’s rights in particular, the biggest decisions were made on Africa’s relationship with the International Criminal Court (ICC) and the proposed peacekeeping mission in Burundi. However, the AU did address other important topics, such as UN reform and free trade. These rulings set key precedents for Africa and distinguished its role in the world.

The AU versus the ICC

While the ICC was established in 2002 to try crimes against humanity, it has fallen into disrepute among African leaders where a feeling has been allowed to grow that the court is only picking on weaker targets. The ICC has indicted 39 individuals so far, all of them African. As such, the AU has described the ICC as a “neo-colonial instrument”. 

In a landmark decision, the AU summit has backed a proposal to move towards a withdrawal from the ICC. While an AU withdrawal would not automatically withdraw its member states, it does open the door.

African Union Commission Chair Nkosazana Dlamini-Zuma at the EU-Africa Summit, on November 12, 2015

The proposal on the ICC was put forward by Kenya’s President Uhuru Kenyatta, who briefly stepped down from his post to appear before the ICC in October 2014 in relation to alleged crimes against humanity committed in the aftermath of the 2007 elections. Mr. Kenyatta confidently strode into the Hague, where the case against him quickly collapsed due to the withdrawal of key witness statements. Upon his return, President Kenyatta’s approval ratings leapt from 43% to 71%. Meanwhile, the Kenyan Parliament passed a motion to withdraw from the ICC over the indictment. Kenya has not yet proposed a law to leave, but the possibility of one in the foreseeable future cannot be ruled out.

At the same time, the trial of Hissene Habre in Senegal has set a major precedent for African justice. It’s the first case of an African court trying a former dictator in the name of universal jurisdiction. The charges go back to crimes committed during the 1982-1990 Habre regime in Chad. Allegedly, Mr. Habre sanctioned the killing of over 40,000 people. The trial opened in 2015, after a 25-year campaign to bring him before the courts.

Earlier in 2014, the AU had adopted a resolution granting immunity to the leaders of its member states from international prosecution. This appeared to contradict the ratification of the ICC treaty by many African countries. But this motion has not hindered ICC investigations and trials. Although the ICC is often accused of a bias against Africans, the court has only indicted the leaders of five African countries: Charles Taylor (Liberia), Muammar al-Gaddafi (Libya), Omar al-Bashir (Sudan), Laurent Gbagbo (Ivory Coast) and Uhuru Kenyatta (Kenya). It’s also the case that the ICC is a treaty organisation and is based upon the consent of its signatories.

The 1998 Rome Statute was ratified by many African countries, while far fewer Middle Eastern and Asian states joined the ICC. Some have speculated this may be related to foreign aid, but journalist turned academic Keith Somerville told The World Weekly that the Rome Statute was not tied to aid. Rather, in Mr. Somerville’s view, many African governments signed up to the ICC after the Rwandan genocide to demonstrate they had moved on. The Rwandan trials, which did not involve any leaders, were seen as the benchmark for international justice, so African leaders signed thinking they would not be indicted.

Kenya's President Uhuru Kenyatta smiles as he speaks with Ghana's President John Mahama at the AU Summit, on January 30, 2016

ICC cases in the Central African Republic, the DR Congo, Mali and Uganda, have all been based on consent, but this is not always the case. The UN Security Council (UNSC) has the power to refer cases to the ICC, the most famous case being the genocide charges against Sudan’s President Omar al-Bashir. It’s also unlikely that the UNSC would veto the indictment of an African leader. Critics have constantly pointed out that there are plenty of war criminals and human rights abusers outside of Africa, so it may be understandable why many Africans view the ICC with suspicion. “It is difficult for fair-minded people and lovers of justice to ignore that not long ago, America and Britain invaded Iraq and sentenced to death its President Saddam Hussein for ‘weapons of mass destruction’ his country did not have,” South African politician Motsoko Pheko wrote for Pambazuka News in June 2015. “The damage that the American and British invasion has done has incubated the Islamic State of Iraq and Syria. This has destabilised and created unprecedented chaos in the Middle East and poses danger to world peace.”

Most recently, the ICC has launched an investigation into allegations of war crimes during the 2008 war between Russia and Georgia over South Ossetia. 

Despite African antipathy towards the ICC, support for leaving is not universal. “Leaving the ICC with no credible mechanism for justice for mass crimes in sight would be an error of colossal proportions,” argued the editorial board of Kenya’s Daily Nation. “It is far better for member states to stay in the court and advocate reforms, rather than bolting and leaving millions on the continent unprotected by an international court which can step in when national institutions fail.”

Not every African government has a bad relationship with the court, as the Pretoria-based Institute for Security Studies commentator Simon Allison points out: the DR Congo maintains steady relations with the ICC and shows no signs of pulling out. The DRC was the second African country to make a referral to the ICC and the government of Joseph Kabila has largely cooperated with the court. Most recently, the Kabila government signed the Rome Statute into law, thereby binding its institutions to the court’s standards. But it’s also true the ICC has yet to investigate allegations against the Kabila government and its armed forces.

Nonetheless, the AU ruling may prove to be a catalyst for states to leave the ICC. The Kenyan government might well opt for withdrawal, while the African National Congress (ANC) in South Africa has adopted exit as a policy desire. The world will be watching to see who makes the next move.

The AU drops intervention in Burundi

In a major u-turn, the AU summit voted to shelve its plan to deploy 5,000 peacekeepers in Burundi. Originally, the AU planned to move troops stationed in the DR Congo across the border. The main aims of the mission were to disarm the militias and protect civilians. The AU plan to deploy peacekeepers ran into trouble when the Burundian government made clear it would regard such a mission as a violation of its sovereignty. Burundi’s President Pierre Nkurunziza warned the mission would be seen as an “invasion”, a position reiterated by Burundi’s Foreign Minister Alain Nyamitwe.

Already reluctant to push ahead, the AU found the sovereignty argument convincing. Many states such as the Gambia regarded this measure as a step too far down a slippery slope. On the other side of the debate, Nigeria’s President Muhammadu Buhari spoke in favour of the mission. But given the official commitment of the AU to uphold national sovereignty, the case of Burundi posed a serious dilemma.

Rwanda’s President Paul Kagame walking with Chad’s President Deby and Guinea’s President Conde, at the AU, on January 30, 2016

Legally, the AU could only intervene without consent under particular circumstances, such as war crimes, genocide and other crimes against humanity. As the situation in Burundi fits none of these circumstances, the AU decided it could not justify such an action and proposed an ‘inclusive dialogue’ as an alternative. Burundi retains its seat on the AU Peace and Security Council (PSC).

The AU resolution has drawn strong criticism from observers. The PSC report’s editor Liesl Louw-Vaudran told South Africa’s Daily Maverick the AU decision was “a victory for the Burundian government, there’s no other way to look at it”. Writing for the Institute for Security Studies, Stephanie Wolters said: “Critics of the government continue to be targeted, and the killings have not stopped. If the AU is to maintain momentum, and not look like it is dropping the ball in Burundi, it needs to act fast and concretely”.

It’s widely feared that Burundi may descend into civil war. The last one tore the country apart for over a dozen years. The Burundian government is held together by the Arusha agreement, which was the basis of the peace settlement. The AU played a major role in settling the Burundian Civil War. Elder statesmen Julius Nyerere and Nelson Mandela mediated the 2000 peace talks, while South Africa deployed hundreds of peacekeepers. Following this, Ethiopia and Mozambique contributed troops to beef up the AU mission. As the funding began to dry up, the UN moved in to replace the AU forces.

So far the violent clashes have not taken the form of a Hutu-Tutsi ethnic conflict. The major protests began in once predominantly Tutsi neighbourhoods, but the demonstrations included Hutus and Muslims (who identify with neither group). By contrast, the Burundian government is dominated by Hutus and has been accused of raising its own Hutu militias. Nevertheless, the propensity for ethnic warfare is why Burundi’s crisis matters to the whole region.

With its own history in mind, neighbouring Rwanda fears the crisis could spill over the border. At the same time, the Burundian government has not participated in attempts to hold peace talks, while Uganda’s President Yoweri Museveni is preoccupied with his re-election and cannot effectively mediate. The East African Community (EAC) is losing patience. Under these conditions, some people are now looking towards the UN Security Council.

In Rwanda’s New Times, legal expert Fred Nkusi has argued that the UNSC is “in a better position to resolve the Burundi political turmoil”. The UNSC has the power to authorise international sanctions, peacekeeping efforts and appoint new mediators to engage both sides. “Since all regional avenues have apparently been fruitless, this is the eleventh hour for the UN Security Council to take action that can yield a sustainable solution. The reluctance to take action bespeaks the division between UN Security Council members over the issue.”

If the AU has dropped the ball, is it now in the court of the international community?

Other key issues 

Women’s rights

The AU has identified many barriers to gender equality: economic exclusion, discrimination, limited political participation, and a lack of access to education. At the same time, gender representation has improved in recent years, with Rwanda ranking number one in the world for the number of female parliamentarians. In light of all this, the AU has reaffirmed its commitments to gender equality and the rights of women.

Nearly halfway through what the AU has declared the African Women’s Decade, there is still a lot of work to be done to curtail gender violence and harmful cultural practices. The AU has established what it calls “an extensive and progressive body of legal instruments to promote gender equality and women’s rights”. This includes the AU Constitutive Act, which provides the groundwork for promoting gender equality. Other committees and bodies have been created to serve as a reporting framework. Meanwhile, the AU Gender Policy and the Fund for African Women aim to build a framework for expanding women’s rights.

According to Mr. Somerville, the AU has played an important symbolic role in promoting gender equality and the rights of women. In 2012, former South African Foreign Minister Nkosazana Dlamini-Zuma became the first woman to become the AU Commission’s chairperson. Ms. Dlamini-Zuma’s ascendancy came just after the election of two prominent female presidents: Ellen Johnson-Sirleaf in Liberia and Joyce Banda in Malawi. No matter how symbolic, these events were an acknowledgement, according to Mr. Somerville, of the leadership abilities of women in major political roles.

UN Security Council reform

In his address, outgoing AU Chairman Robert Mugabe called for greater equality at the UNSC. The Zimbabwean president emphasised that the populations of Africa, India and China are far greater than the US and Europe. He even suggested that the UN Headquarters, based in New York City, had been misplaced. “If the UN is going to survive, we must be equal members of it,” he said, to loud applause. South Africa’s President Jacob Zuma was slow to join the ovation, the South African Broadcasting Corporation noted.

Outgoing African Union Chairperson and Zimbabwe’s President Robert Mugabe salutes the AU, on January 30, 2016

The absence of an African state among the permanent members of the UNSC has long been a bone of contention in African politics. Some observers see South Africa, the biggest economy and a strong democracy, as the best candidate for a permanent African seat. India is likely to back the proposal because it also wants a permanent seat on the UNSC and, if reforms for the world body were eventually agreed, it would need African support at the UN General Assembly.

Free trade

AU Commissioner for Trade and Industry Fatima Acyl has called for structural adjustments to create jobs, so as to improve the livelihood of Africans. “If you don’t transform, there will be a lot of importing of products that you have,’’ Ms. Acyl told summit attendees. Many African economies remain dependent on imports, thereby undermining domestic production and, by extension, economic development. She argued for the creation of a Continental Free Trade Area (CFTA) to facilitate a single market for goods and services. Ms. Acyl described the free trade plan, alongside the African Mining Vision, as the backbone to the AU’s industrial transformation plan.

The CFTA was proposed last year and negotiations have already begun. The AU hopes to establish an Africa-wide economic zone by 2017. If the plan is successful, the free trade zone will bring together the Common Market for Eastern and Southern Africa, the South African Development Community, and the East African Community. It would comprise a population of over one billion people with a combined GDP of more than $3 trillion. While it would not constitute a common market, or anything like the European Union, it would be a step towards economic integration.

Presently, inter-African trade constitutes just 13% of total African trade. The UN Economic Commission for Africa estimates that the free trade area could boost internal African trade by $35 billion per year. It could also attract greater foreign investment. Its success would depend not just on reducing tariff barriers, but on the ability of African economies to produce goods at competitive rates that other African economies would buy.

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