Africa should offer an alternative solution to ICC, rather than criticize it

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Kinshasa, June 3rd, 2021 (CPA).-  Africa should offer an alternative solution to the International Criminal Court (ICC), rather than criticize it. It is not enough to criticize ICC or to withdraw from it, said on Wednesday in Kinshasa, on behalf of the current President of the African Union, Felix Antoine Tshisekedi, the Minister of State in charge of Justice and Seals Guard, Rose Mutombo Kiese, at the videoconference opening of the very first retreat for judges of the African court on human and peoples’ rights.

“I have followed the development of events in recent years with regard to the court. If one compares the activities undertaken by the African court with those of other regional jurisdictions, over the same period, one can confidently say that the African court has achieved great success. In terms of numbers, in May 2021, the court received more than 323 litigation applications and issued 113 decisions and more than 67 interim measures orders”, the minister of state said during her speech.

She also said that 210 cases are pending before this court which received 14 requests for advisory opinion, emptied 13 and one pending, before arguing that visibility has been greatly improved thanks to its judgments and orders.

Access to the court was improved and the court continued to collaborate with member states and civil society organizations, including through regular outreach visits.

Despite this glowing picture, it is evident that the Court still appears to face many challenges in effectively discharging its mandate, said the Minister of State for Justice.

“Today, more than two decades after the adoption of the protocol, only of 55 Member States of our Union have ratified it, my country having become a party following the deposit on December 8th, 2020 of the relative instrument, in accordance with the will of my government to promote democracy, the rule of law and respect for human rights in my country”, she added.

Moreover, she indicated that out of 31 States, only 6 have filed their declarations provided for in Article 34 (6) of the protocol allowing individuals and NGO to appeal directly to the court. Between 2017 and 2019, 4 states which had filed the said declaration withdrew it due to disagreements with the Court on the judgments or orders delivered by the latter, she continued, adding that to date, only 7% of the court’s judgments have been fully implemented, 18% have been partially implemented and 75% have not been executed. These statistics are alarming and lead us to question the commitment of states to an effective court.

During your deliberations, you should critically examine the whole African human rights architecture, the various related institutions, and make concrete recommendations on how to improve the African human rights system man as a whole and the court in particular, informed the Minister in charge of Justice.

 “The current African Union institutional reform initiative offers us an opportunity that should not be missed. We have to ask ourselves the tough questions if we are to get the right answers. Unfortunately, 15 years later, and despite the high number of cases pending before the commission, the latter only referred to the court 3 cases”, she lamented, before asking herself other questions: do we need several supranational human rights institutions or should we merge them? Should judges work full time or part time? Do we still need the Article 34 (6) Declaration to recognize the jurisdiction of the court? Some stakeholders have called for the creation of an appeals chamber to give parties the opportunity to appeal court decisions. Is it worth considering?

“I am convinced that African leaders share the same desire to see the institutions they put in place to function effectively. This is why the Union ensures that bodies such as the African Court are funded by contributions from member states, with little or no funding coming from external partners. States, like petitioners, have the right to disagree with the decisions of any court », she said.

The success and failure of any human rights or justice system depends on the support and cooperation it receives from the various stakeholders who use it, the justice minister said, arguing that respect for the decisions of the court is essential to the success of any judicial system and to the proper administration of justice. On the other hand, failure to enforce its decisions not only destroys the raison d’être of a court but also undermines public confidence in the justice system.

« For him, support for the Court, the filing of the declaration recognizing the jurisdiction of the court, respect for the decisions of the court, the filing of conclusions on time, support for our own institutions, in particular our own judicial structures, is even more crucial at a time when we find ourselves vilified on the international stage, where our leaders are tried by international tribunals. Yes, we disapprove of proceedings before the International Criminal Court (ICC); yes we disapprove of the unjustified and biased prosecutions in The Hague against Africans only. But it is not enough to criticize or withdraw from ICC. We need to come up with an alternative to ICC and, in my opinion, that alternative takes the form of an independent, strong and adequately resourced African court. We cannot have it both ways – withdraw from ICC and not have an alternative solution”, she concluded.

For her part, the President of the African court on human and peoples’ rights, Imani Aboud, declared that « our task will consist in taking stock of our system of functioning of the court, its jurisprudence as well as its relations with other human rights actors in Africa, with a view to identifying its strengths and weaknesses”.