ICC IS THE RIGHT ANSWER

*By Ayah Paul Abine
Those advancing criticisms against the ICC for prosecuting only African leaders appear to be completely divorced from the African realities. And their criticisms seem to be inconsistent with the incontrovertible legal principle that all persons are equal before the law. It is even tempting to contend that some of the points put forward to buttress those appreciations are more moral than legal. But the ICC is a court of law.

Few would dispute that many are African leaders who have entrenched themselves in power so much so that they do die in office without having been held to account for their atrocities against the very people they profess to lead. For their protection additionally, they have castrated their national courts by fusing the Judiciary with the Executive and making themselves the heads of both, thereby rendering the courts wholly impotent generally, and especially as against themselves. Nor is anyone familiar with the African story unaware that a number of contemporary African leaders have, in superfluity, enshrined in their constitutions absolute immunity for life for themselves within their national borders, with the result that they have placed themselves above their constitutions; and, by extension, above all State institutions, the Judiciary inclusive. None of these unfortunate developments can be said to be true of the West.

If we took Cameroon as an example to illustrate a weak judiciary, we would find that the President of the Republic appoints and dismisses members of the judiciary in his capacity as the head of the Judicial Council. He similarly disciplines, promotes and transfers them. It is not uncommon to hear even officially that he is the number one member of the judiciary. In other words, he heads both the Executive and the Judiciary. In that powerful position, he would strike fatally anyone below who dares to threaten him with mere investigation. Conversely, the subordinates cower in subservient subjugation for the protection of self and profile.

As we are all equal before the law, how else would any like leaders, suspected of heinous reprehensible conduct such as war crime, and crime against humanity, be held to account outside international tribunals like the ICC, in the face of the castration of their national courts? Would national courts have jurisdiction in the circumstance as an exception to the rule of natural justice that no-one should be judge in his own cause? Otherwise, with the entrenchment of African leaders in power for life, or at least indefinitely, what is the viable and just alternative to prosecuting them before the ICC?

We could well be right to blame international NGOs for their tilted clamouring for justice as we crusade for fairness in the dispensation of justice in our world of a global village. But that calls for the genuine unity of Africans in order to give ourselves the necessary weight to be effective like Amnesty International and Human Rights Watch. It does us no good that we unite only in the effort to shield from prosecution our peers who are accused of crimes against humanity because in them we see ourselves. Nor is it justifiable at law to invoke failings on the part of international NGOs to defeat justice, well grounded as our cause may be in morality.

With the leave of readers, I wish to state here that for the little that has been my lot to read, I have not chanced upon any legal principle to the effect that one can invoke as a defence against prosecution the fact that some other persons, suspected of committing similar offences, or even the same offences, have not been prosecuted. Defence in criminal law is personal. To repeat for emphasis, prosecution would not be rendered nugatory just because some of the offenders have not been prosecuted. It would be noted that the Prosecution reserves the legal right even to drop charges against a co-accused in order to use him as a witness. Doing so does not vitiate the prosecution of the remaining accused.

If well-meaning Africans there are, or even non-Africans, who want to stand up for justice in Africa, therefore, their struggle should be in defence of the defenceless who are losing their lives and property daily because they are powerless before powerful lords with insatiable lust for power and property. Arguing the case for immunity to prosecution in favour of those powerful lords on the ground that they are sitting presidents, or that charges have not been brought against some non-Africans that we have arrogated to ourselves the right to find guilty even before their being investigated, would be encouraging more lawlessness in Africa; siding with oppression, and retarding further our retarded development.

I think that ICC is the right answer to the African oppressors in our present circumstances!

*AYAH Paul ABINE is a career jurist and Member of Parliament,Cameroon’s National Assembly