Tuesday, November 22, 2011

Africa 'Court' OffGuard

Africa ‘court’ offguard

November 22 2011 at 04:57pm
By Peter Fabricius

Will Saif al-Islam make it to court and, if so, who will judge him? His life could depend on that decision.

Saif, son and one-time heir apparent to the late Libyan leader Muammar Gaddafi was captured in southern Libya on Saturday while fleeing south to try to cross the border into Niger.

He is now being held by his rebel captors, pending transfer to Tripoli to stand trial for alleged crimes against the people of Libya, while serving as one of his father’s chief lieutenants. Saif is a fugitive from the International Criminal Court, which indicted him earlier this year, along with his father and his father’s chief intelligence official.

So the new Libyan authorities could simply bundle him off to The Hague to be tried there.

But it seems more likely that the National Transitional Council (NTC), which now rules Libya, will want to try him themselves. It would be revealing to hear the views of the AU and its member states on this matter.

AU leaders have decided that because they believe the ICC is picking on Africa, no member states should co-operate with it.

But would they feel the same about Saif? The AU does not much like the NTC, mainly because it chose to topple Gaddafi by force, instead of following the AU’s own “road-map” which prescribed a ceasefire and negotiations with Gaddafi.

Will the AU now remain true to its summit decisions and oppose Libya handing Saif over to the ICC?

Will it be happy for the NTC judicial authorities, when those are established, to try him instead?

The difference could be that between justice and injustice and life and death.

The ICC would give him a fair trial and would, at most, sentence him to a long jail term.

Whether Libya would or even could give him a fair trial remains uncertain. And the chances must be considered quite high that, if convicted, he would be sentenced to death.

South Africa, particularly, as a signatory to the Rome Statute creating the ICC and an abolitionist state, ought to call on the Libyan authorities to send him to The Hague.

But will it?

In theory there is a solution which would address the dilemma.

Saif could be tried by the African Court on Human and People’s Rights which has been operating from Arusha, Tanzania, since June 2008.

Its mandate is to adjudicate the Charter of African Human and People’s Rights which, of course, includes the right to life and the usual freedoms which Saif al-Islam Gaddafi allegedly violated.

And so, one might have thought – this layman’s opinion stands to be corrected, though – this court could do the job of trying Saif, thus offering an African solution to an African judicial problem while also avoiding the prospect of a kangaroo court or a nasty Saddam-style execution etc.

Trouble is the African Court just doesn’t seem to have really got off the ground.

It seems to have adjudicated nothing of substance, only a bunch of pedantic procedural issues which hardly justify a majestic court with a president and 10 other judges.

Part of the problem is that before it may hear a case brought by an individual or an NGO against a government, that government has to grant the court that jurisdiction.

In one of its recent “judgments” it deliberated long and hard before deciding to reject an application from a Chadian citizen opposing the case which Senegal is supposed to be bringing against former Chadian dictator Hissein Habre for atrocities committed against his people.

The case was never on from the start as Senegal has never granted the African Court the right to hear cases brought against it by individuals and NGOs.

One of the court’s judges even complained that this application should have been dismissed from the start as an administrative matter rather than being the subject of a full judgment.

If the AU refuses to co-operate with the ICC one would think that it would ensure its own equivalent was functioning fully.

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