By Eliud Owalo
For starters, Malabo is the island capital of Equatorial Guinea. Itâ€™s here where African Heads of state met in June 2014 and signed the Â Malabo protocol, which among other things, is aimed at expanding the mandate of the African Court of Justice and Human Rights to include handling cases of crimes against humanity.
The ACJHR itself is a moribund institution that has been in existence for quite sometime without any known record of serious legal accomplishments.
Amazingly, such a presumably serious protocol was signed in a country where thousands of innocent lives have been consigned to graves and where many people continue to suffer from untold repression and debilitating economic hardships under the rule of a typical African big man in the name of President Teodoro Obiang Nguema.
Seriously, if only to give hope to the downtrodden African people, such a protocol should have been signed in a territory where respect for human rights, rule of law, accountability and democracy are manifestly practiced. Unfortunately, such places do not exist in Africa. Most Africa states are better known for their records of extreme abuses of human rights with impunity and for having National constitutions which accord sitting presidents immunity from legal prosecution. This privilege is often used as a carte blanche for committing atrocities.
Judging from the performance of the Africa court so far and given the lack of precedent in Africa in this regard, there is no doubt that the expanded Africa court will deliver no Justice to the African people who have been subjected, over the years, to awful treatment with impunity . The truth is, the court is a decoy institution intended to shield the African dictators and murderous from facing the law. It is simply a legal decoy put in place to hoodwink the international community that African leaders can also be serious about Justice and the rule of law.
In order to unravel the pretense underlying the proposed African Court, one needs to read the Statute on which the court is founded including the manner in which the court officials (Judges and Prosecutors) are appointed and discharged from duty.
Upon close scrutiny, it emerges that such judges and prosecutors must be proved subservient to the appointing Heads of State whom they are interestingly expected to preside over their trials on matters such as abuse of office and crimes against humanity. This is a complete sham. Honestly, it is hard to believe that such court can independently exist and function in Africa. Obviously, there would be manipulations, outright threats and even elimination of Judges and prosecutors who may tend to act with impartiality. Further, considering the shaky economic state of most African countries, the viability of the proposed court is in great doubt.
In the same vein, it should be recalled that most African states that are now campaigning against the International Criminal Court (ICC) are the majority signatories to the Rome Statute on whose basis the ICC is founded. They are now infuriated simply because of their inability to influence and manipulate the court in their favor. It is such independence of the ICC that the proposed Africa court will dearly miss.
Admittedly, the Africa court belongs to a much lower institutional class compared to the ICC. In terms of standards, independence, jurisdiction, vision and integrity, the African court stands no chance of rising up to effectively ensure justice for victims of atrocities caused by African leaders. In such a scenario, ICC remains the best hope for Africans. What is needed now is the tightening of the Rome Statute to totally deny undue privileges to African leaders facing trials at the court. Such people should be put in remand while under going trial to prevent them from eliminating witnesses against them.
Instructively, our Constitution makes public participation in key decision-making an obligation for the Government. Accordingly, therefore, the citizens ought to challenge the Jubilee Government for acting with contempt of public opinion when it contributed US Dollars one million to the African court without seeking public consent. Further, because the people wield the sovereign power, they need to be fully consulted on the Jubilee Governmentâ€™s intention to withdraw Kenya from the ICC. In fact, a national referendum would be required to determine the public opinion on the matter.