Khama: SADC's Slouching Novice
October 27, 2016
Sydney Kawadza Senior Features Writer
Zimbabwe Herald
“Khama, Khama, Khama,” President Mugabe said on September 15, 2008. The President was addressing delegates who had witnessed the historic signing of the Global Political Agreement between Zanu-PF, MDC and MDC-T. The parties, which made up the Zimbabwean Parliament, were agreeing to form an inclusive Government, which came into effect the following year.
For the first time, President Mugabe seemed to be at a loss of words as he tried to make a point towards Botswana President Seretse Khama Ian Khama. The momentary pause came after the President had taken time to chronicle the journey Zimbabwe had travelled since 2000 and how each Sadc country had played its part to find a solution to the challenges faced in the country.
Khama had in his wisdom or lack thereof decided to throw overboard diplomatic etiquette to attack the Zimbabwean leadership. He had taken a stance and peddled it while meddling in Zimbabwe’s political affairs. President Mugabe, acting like a true statesman, instead gave his counterpart a history lecture.
It was a lesson on relations shared by Southern African states. It was a lecture on, firstly, the role played by the Frontline States, leading to the independence of most countries in the region and, secondly, how as Sadcc, the countries united in pushing for economic cooperation and development.
All in all, President Mugabe’s lesson to Khama, was on the importance of regional integration.
Did that lesson reach Khama?
It seems nothing is getting into the Botswana leader’s head. Khama continues to be the region’s problem child! A slouching novice who does not seem to know the strictures of sovereignty.
His statements against President Mugabe have become nothing, but rhetoric. His grandiloquence deserves only silence. But, Khama, the delinquent and insolent cousin, is never done until he goes against the region. He has since decided to pick a fight with South Africa over the latter’s decision to withdraw from the International Criminal Court.
South Africa announced last Friday that it plans to withdraw from the ICC. The move came three days after Burundi issued a decree withdrawing from the same court. Under the Rome Statute, the treaty that established the court in 2002, countries are obligated to arrest anyone sought by the tribunal.
The South Africans refused to do so when Sudanese President Omar al-Bashir visited the country on African Union business. An arrest warrant has been issued against al-Bashir on a number of allegations, including torture, human rights abuses among others.
SA foreign minister Maite Nkoana-Mashabane formally notified United Nations Secretary-General Ban Ki-moon last week of South Africa’s intention to withdraw from the court. It takes close to a year for a country to leave the court.
However, the region’s insolent cousin issued a statement against South Africa’s sovereign decision to pull out of the ICC. Botswana, in a statement, expressed its regret towards that decision. Ironically, Botswana acknowledged South Africa’s sovereign right to become party to, or withdraw from any international instrument.
However, Article II (1) of the United Nations Charter recognises sovereign equality of members while Section 4, in part, calls for members to refrain from threats against political independence of any state.
These provisions clearly inform Botswana to mind its own business. The South African government’s decision is guided by Article 127 (1) of the Rome Statutes which states that a State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute.
The provision further states that withdrawal should take effect one year after the date of receipt of the notification, unless the notification specifies a later date. Politics and international relations dictates that South Africa made a sovereign decision. Such a decision has nothing to do with its neighbours or other states in the international arena where members are guided by respect towards each other’s sovereignty.
Botswana argues that South Africa should have aired its grievances during the Assembly of State Parties to the Rome Statute meeting at The Hague next month. The fact that Botswana feels that the ICC is an “important and unique” institution in the international justice system does not hold any water.
Africa has made it clear that it is tired of the bully tactics used by the West, particularly, the United States and its allies, in persecuting African leaders through the ICC. The declaration, made by Comoros, Djibouti, and Senegal in 2009, was specifically in reference to President al-Bashir’s indictment.
At the 2013 AU summit in Addis Ababa, Ethiopia, Africa unanimously accused the ICC of being racist and stated that the ICC was prosecuting only African cases. AU announced its support of Kenya’s application for legal proceedings against President Uhuru Kenyatta his deputy William Ruto to be returned to Africa.
Professor Mbaku of the Weber State University said the AU’s position was that the Kenyan situation demands that the UN Security Council exercise its mandate under Article 16 of the Rome Statute, read it together with Chapter VI of the UN Charter, and allow Kenya to move forward and deal with the challenges confronting it.
This, he said, was informed in Africa’s strong belief that Africans should be allowed to solve their own problems.
He further notes that there were four flaws in the ICC mentioned by the AU summit, which are;
(i) The ICC fails to adhere to stringent evidential standards and investigative techniques critical to the collection of reliable evidence — this flaw arises from the fact that the ICC outsources critical functions of the Court’s Office of the Prosecutor (“OTP”) to unregulated and often privately funded NGOs and individuals who are not accountable to the Court or to the judicial process and may have incentives beyond or inimical to this process.
(ii)The impact of permissible funding from private sources on the justice delivered by the Court — private funding can significantly influence the Court’s impartiality or give the appearance of doing so.
(iii) The Court’s grounding is in principles of humanitarian and not criminal law — a prominent feature of the ICC is that while it is grounded in principals of humanitarian law, it purports to investigate and judge essentially criminal cases.
(iv) The ICC Office of the Prosecutor, using proprio motu jurisdiction, can initiate a case without referral from a member State or the UN Security Council.
Without a referral from a member state, the OTP runs the serious risk of lack of cooperation, which undermines the integrity of the investigation, and without a referral from the UN Security Council, the OTP discretion is unchecked and lacks the focus and political support obtained by having the UNSC narrow the issues.
Professor Mbaku asks; “Does it mean that Africans are the only ones in the world who commit the most insidious war crimes and crimes against humanity?” Africa also queries that the ICC is not unlike the colonial order established in Berlin in 1884-1885, whose most important missions was to protect “vulnerable groups,” one of which included citizens of the “Dark Continent.”
Supporters of the ICC make similar claims. “The Rome Statute was driven, to a great extent, by Western-based NGOs, with only marginal contributions from official country representatives,” he said.
Sixty member countries, out of 189 member countries of the UN, were needed to approve the Rome Statute. “This is extremely problematic, especially given the fact that the ICC has worldwide jurisdiction, including over countries that are not signatories to the ICC Statute,” he says.
He also notes the absence of important global players, United States, China, India, Japan and the Russian Federation, from the agreement establishing the ICC. “Over 70 percent of the world’s population is outside the Court’s jurisdiction — India (1,27 billion); China (1,390 billion); Indonesia (230 million.); Russia (150 million.); Japan (125 million.); US (312 million.).
“The ICC’s members represent only 27 percent of the world’s population; yet, the ICC purports to be a universal court exercising universal jurisdiction. “The ICC has ignored cases of superpower abuses of human rights and abuses by client states.”
The ICC has only gone after those people seen as being weak and unprotected by the UN Security Council—consider human rights abuses in Iraq, Afghanistan, and Syria. He also quotes Dr David Hoile, an expert on the ICC and African affairs, who notes that the ICC was nothing more than a European Court whose statute was rushed through in four weeks by Western NGOs with very little time given to effective contemplation.
The UN Security Council, he noted, is granted special prosecutorial rights to refer or defer an ICC investigation or prosecution, effectively inserting political interference into the Court’s terms of reference.
The ICC is unaccountable to any public entity. So who can blame the South African government to “wash its hands” off the burden that the ICC has become to Africa? Botswana, the British protectorate that gained a pseudo-independence in 1966 from their masters, should start reflecting on the direction it is taking against its neighbours.
It should take cue from South Korea, currently battling to remove the “US’ baby” tag that is causing so much discomfort in their region. Botswana could be gaining favours for supporting the powerful Western countries but it should also reflect on its relations with its Sadc counterparts.
It’s also high time President Khama is called to order before his wayward behaviour causes division and chaos in the region. South Africa has a sovereign right to withdraw from the ICC, after all, most African countries are disillusioned by the international court. ICC has simply lost its credibility and Africa should start withdrawing its support to the Rome Statutes.
Sydney Kawadza Senior Features Writer
Zimbabwe Herald
“Khama, Khama, Khama,” President Mugabe said on September 15, 2008. The President was addressing delegates who had witnessed the historic signing of the Global Political Agreement between Zanu-PF, MDC and MDC-T. The parties, which made up the Zimbabwean Parliament, were agreeing to form an inclusive Government, which came into effect the following year.
For the first time, President Mugabe seemed to be at a loss of words as he tried to make a point towards Botswana President Seretse Khama Ian Khama. The momentary pause came after the President had taken time to chronicle the journey Zimbabwe had travelled since 2000 and how each Sadc country had played its part to find a solution to the challenges faced in the country.
Khama had in his wisdom or lack thereof decided to throw overboard diplomatic etiquette to attack the Zimbabwean leadership. He had taken a stance and peddled it while meddling in Zimbabwe’s political affairs. President Mugabe, acting like a true statesman, instead gave his counterpart a history lecture.
It was a lesson on relations shared by Southern African states. It was a lecture on, firstly, the role played by the Frontline States, leading to the independence of most countries in the region and, secondly, how as Sadcc, the countries united in pushing for economic cooperation and development.
All in all, President Mugabe’s lesson to Khama, was on the importance of regional integration.
Did that lesson reach Khama?
It seems nothing is getting into the Botswana leader’s head. Khama continues to be the region’s problem child! A slouching novice who does not seem to know the strictures of sovereignty.
His statements against President Mugabe have become nothing, but rhetoric. His grandiloquence deserves only silence. But, Khama, the delinquent and insolent cousin, is never done until he goes against the region. He has since decided to pick a fight with South Africa over the latter’s decision to withdraw from the International Criminal Court.
South Africa announced last Friday that it plans to withdraw from the ICC. The move came three days after Burundi issued a decree withdrawing from the same court. Under the Rome Statute, the treaty that established the court in 2002, countries are obligated to arrest anyone sought by the tribunal.
The South Africans refused to do so when Sudanese President Omar al-Bashir visited the country on African Union business. An arrest warrant has been issued against al-Bashir on a number of allegations, including torture, human rights abuses among others.
SA foreign minister Maite Nkoana-Mashabane formally notified United Nations Secretary-General Ban Ki-moon last week of South Africa’s intention to withdraw from the court. It takes close to a year for a country to leave the court.
However, the region’s insolent cousin issued a statement against South Africa’s sovereign decision to pull out of the ICC. Botswana, in a statement, expressed its regret towards that decision. Ironically, Botswana acknowledged South Africa’s sovereign right to become party to, or withdraw from any international instrument.
However, Article II (1) of the United Nations Charter recognises sovereign equality of members while Section 4, in part, calls for members to refrain from threats against political independence of any state.
These provisions clearly inform Botswana to mind its own business. The South African government’s decision is guided by Article 127 (1) of the Rome Statutes which states that a State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute.
The provision further states that withdrawal should take effect one year after the date of receipt of the notification, unless the notification specifies a later date. Politics and international relations dictates that South Africa made a sovereign decision. Such a decision has nothing to do with its neighbours or other states in the international arena where members are guided by respect towards each other’s sovereignty.
Botswana argues that South Africa should have aired its grievances during the Assembly of State Parties to the Rome Statute meeting at The Hague next month. The fact that Botswana feels that the ICC is an “important and unique” institution in the international justice system does not hold any water.
Africa has made it clear that it is tired of the bully tactics used by the West, particularly, the United States and its allies, in persecuting African leaders through the ICC. The declaration, made by Comoros, Djibouti, and Senegal in 2009, was specifically in reference to President al-Bashir’s indictment.
At the 2013 AU summit in Addis Ababa, Ethiopia, Africa unanimously accused the ICC of being racist and stated that the ICC was prosecuting only African cases. AU announced its support of Kenya’s application for legal proceedings against President Uhuru Kenyatta his deputy William Ruto to be returned to Africa.
Professor Mbaku of the Weber State University said the AU’s position was that the Kenyan situation demands that the UN Security Council exercise its mandate under Article 16 of the Rome Statute, read it together with Chapter VI of the UN Charter, and allow Kenya to move forward and deal with the challenges confronting it.
This, he said, was informed in Africa’s strong belief that Africans should be allowed to solve their own problems.
He further notes that there were four flaws in the ICC mentioned by the AU summit, which are;
(i) The ICC fails to adhere to stringent evidential standards and investigative techniques critical to the collection of reliable evidence — this flaw arises from the fact that the ICC outsources critical functions of the Court’s Office of the Prosecutor (“OTP”) to unregulated and often privately funded NGOs and individuals who are not accountable to the Court or to the judicial process and may have incentives beyond or inimical to this process.
(ii)The impact of permissible funding from private sources on the justice delivered by the Court — private funding can significantly influence the Court’s impartiality or give the appearance of doing so.
(iii) The Court’s grounding is in principles of humanitarian and not criminal law — a prominent feature of the ICC is that while it is grounded in principals of humanitarian law, it purports to investigate and judge essentially criminal cases.
(iv) The ICC Office of the Prosecutor, using proprio motu jurisdiction, can initiate a case without referral from a member State or the UN Security Council.
Without a referral from a member state, the OTP runs the serious risk of lack of cooperation, which undermines the integrity of the investigation, and without a referral from the UN Security Council, the OTP discretion is unchecked and lacks the focus and political support obtained by having the UNSC narrow the issues.
Professor Mbaku asks; “Does it mean that Africans are the only ones in the world who commit the most insidious war crimes and crimes against humanity?” Africa also queries that the ICC is not unlike the colonial order established in Berlin in 1884-1885, whose most important missions was to protect “vulnerable groups,” one of which included citizens of the “Dark Continent.”
Supporters of the ICC make similar claims. “The Rome Statute was driven, to a great extent, by Western-based NGOs, with only marginal contributions from official country representatives,” he said.
Sixty member countries, out of 189 member countries of the UN, were needed to approve the Rome Statute. “This is extremely problematic, especially given the fact that the ICC has worldwide jurisdiction, including over countries that are not signatories to the ICC Statute,” he says.
He also notes the absence of important global players, United States, China, India, Japan and the Russian Federation, from the agreement establishing the ICC. “Over 70 percent of the world’s population is outside the Court’s jurisdiction — India (1,27 billion); China (1,390 billion); Indonesia (230 million.); Russia (150 million.); Japan (125 million.); US (312 million.).
“The ICC’s members represent only 27 percent of the world’s population; yet, the ICC purports to be a universal court exercising universal jurisdiction. “The ICC has ignored cases of superpower abuses of human rights and abuses by client states.”
The ICC has only gone after those people seen as being weak and unprotected by the UN Security Council—consider human rights abuses in Iraq, Afghanistan, and Syria. He also quotes Dr David Hoile, an expert on the ICC and African affairs, who notes that the ICC was nothing more than a European Court whose statute was rushed through in four weeks by Western NGOs with very little time given to effective contemplation.
The UN Security Council, he noted, is granted special prosecutorial rights to refer or defer an ICC investigation or prosecution, effectively inserting political interference into the Court’s terms of reference.
The ICC is unaccountable to any public entity. So who can blame the South African government to “wash its hands” off the burden that the ICC has become to Africa? Botswana, the British protectorate that gained a pseudo-independence in 1966 from their masters, should start reflecting on the direction it is taking against its neighbours.
It should take cue from South Korea, currently battling to remove the “US’ baby” tag that is causing so much discomfort in their region. Botswana could be gaining favours for supporting the powerful Western countries but it should also reflect on its relations with its Sadc counterparts.
It’s also high time President Khama is called to order before his wayward behaviour causes division and chaos in the region. South Africa has a sovereign right to withdraw from the ICC, after all, most African countries are disillusioned by the international court. ICC has simply lost its credibility and Africa should start withdrawing its support to the Rome Statutes.
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