KEYNOTE ADDRESS BY HONORABLE MOHAMED CHANDE OTHMAN, CHIEF JUSTICE OF TANZANIA AT THE INTERNATIONAL SYMPOSIUM
ON ‘TOWARDS A SYSTEM OF INTERNATIONAL JUSTICE, 18-19 OCTOBER, 2016, MOUNT MERU
HOTEL, ARUSHA, TANZANIA
I wish to thank the Organizers for
inviting me to honour this International Symposium with a Keynote Address. Before
I do so, allow me to extend a word of warm and cordial welcome to distinguished
Participants to Tanzania and to this exotic City of Arusha. I hope the serenity
of this area will energize your minds and spirits for a profitable engagement.
I wish to recognize the eminent Panelists who have kindly accepted to join this
Symposium and to share their vast experience. I understand they will also be
sharing the ‘trade secrets’ of mass crimes criminal investigations at the
capacity Building Workshop. I sincerely
thank the Africa Group on Justice and Accountability (AGJA) and WAYAMO for organizing
this well-structured and professional encounter.
Distinguished Participants,
The theme of this Conference is not
altogether novel. Its recurrence and tenacity is a clear reflection of its
importance and even sensitivity for evident reasons.
Even with an unparalleled
development of international criminal justice since Nuremberg, the
international community continues to face the challenge of how best to
legitimate international justice in an environment where there is ever growing
sense that national sovereignty is being relegated and subjected to the rigid
strictures of supra-national institutions.
And it is not just in matters of
justice in the strict legal sense. As far back as January, 1980, the founder
President of Tanzania, Mwalimu Julius Nyerere, in an unusual reaction to how
the International Monetary Fund was exercising its powers and authority on the
economies of the developing countries observed that the IMF was not an
International Ministry of Finance! To Nyerere, the issue was not about Tanzania
being a ‘State Party’ to the IMF Articles of Agreement; it was about IMF’s
exercise of its authority without due regard to Tanzania’s sovereign rights.
One could even venture to conjecture whether ‘Brexit’ does not fit into such
mode of thinking and reaction!
The Founding Prime Minister of Singapore,
Lee Kuan Yew observed back in 1962 that ‘the
acid test of any legal system is not the greatness or the grandeur of its ideal
concepts, but whether, in fact, it is able to produce order and justice.’
An apt statement when one considers the state of the system of international
justice.
And the theme of the Symposium:
Towards A System of International Justice.
Thus, if we revert to Lee Kuan
Yew’s precept, we may additionally ask if today’s international justice is
indeed producing ‘order and justice’. This dictumif
I may call it, exposes us to one rather a subjective question, namely, what is
‘order’? That is international criminal order. Yet it is a fundamental inquiry which
has often emboldened the tension between international justice and state
sovereignty, especially in Africa.
Distinguished Participants,
I think it is important for this
Symposium to interrogate further this question about ‘order’ as it goes to the
heart of what the Nobel Laurate Amartya Sen in his magisterial book entitled
‘The Idea of Justice’ describes as the importance of ‘impulses and mental attitudes’ in assessing and examining the
advancement of justice and the removal of injustice in the world. It seems that
there is wide approval that an effective and efficient system of international
justice should also be part of a local DNA, otherwise it turns into an
anti-body and can potentially be rejected. What all this means I think is that
an understanding of justice should not escape its being contextualized with
national roots.
One may even interrogate, is it not
the question of ‘order’ in the sense of state sovereignty rights succumbing or
subjected to controlling supra-national instances and authority such as the ICC
that is one of the central questions that currently and partly bedevil the
relationship between the ICC and the African Union (in which 34 African States
that have ratified the Rome Statute) and its leaders. The AU and its leadership
have asked for and are looking for a satisfactory response, why, for example,
if ICC is legitimate, Russia, China and the U.S.A. are yet to sign the Rome
Statute? The very States, members of the UN Security Council that has referral
and deferral powers under the Rome Statute.
In the words of former President of
South Africa, Thabo Mbeki, it is “puzzling” to the African, when the African
Union is not asking for charges to be dropped against an ICC indicted, why the
Security Council did not defer a situation of an ongoing conflict in Africa for
a year, in the quest for peace. If this window for non-State Parties not only
to influence, but also have a decisive input in a Court which they are not
bound it is to be fully appreciated, a need for deeper reflection,
understanding and consensus is called for.
There are certain situations
(Afghanistan, Georgia, Sri Lanka, Syria, Yemen), in particular regions that
ought to have been or to be at the ICC and to have already matured; and they
are not or have not. To add to David Bosco’s observations why is it that the
ICC has “no desire to provoke Washington, Beijing or Moscow” or to act in cases
in which “geopolitics are intense”? The Symposium offers an appropriate
platform for an informed conversation on all these and other pertinent issues,
with the caveat that there may not be a monolithic African stand on each and
every subject.
Distinguished Participants,
One of the major issues concerning accountability
and justice, which I am sure will not dodge your critical deliberations is the
independence, impartiality and integrity of national, regional and
international judicial institutions, in particular their organs and members against
interference and the politicization of their mandates and processes. Can
international justice be truly apolitical? Is the politicization of justice not open to a
legitimacy crisis?
How can international justice be
better insulated from political or external undue pressure in accountability
for atrocity crimes? The President of the ICC could not have said it any better
in her opinion in the Guardian (19 April 2016): “States establish it, but they
must respect its judicial independence”.
Another interconnected issue on international
justice that has emerged at times and which has touched raw nerves in Africa,
is the relationship between peace, security and justice. It invites close
consideration. The subject has taken prominence in Africa because conflicts do
occur. It is a fact that some are on-going. However it is not an African
monopoly. It has also emerged in the recent peace process in Colombia, which
has undergone half a century of armed conflict. The thorny question often posed
in terms of ending hostilities, stopping atrocities, peace-making and accountability
is whether justice should triumph peace or peace-making should momentarily supersede
justice or transitional justice arrangements. Posed in another way, if the two
are complementary, how can the two be mutually reinforcing. Again, the Symposium
is best posed to address this recurrent challenge, with a view to enhancing the
rule of law, combating impunity and the establishment of durable and
sustainable peace.
Distinguished Participants,
African States are parties to
dozens of international and regional humanitarian and human rights conventions.
Their Constitutions enshrine and guarantee human rights and fundamental
freedoms. ‘Justice’ is among the purposes of the African Union whose core
values include the rule of law, human and peoples’ rights and the fight against
impunity. Article 4 (h) of the Constitutive Act of the African Union is
progressive to the extent that it incorporates the right of the Union to
interfere in a member State, pursuant to the decision of the Assembly in
respect of grave circumstances, namely, war crimes, genocide and crimes against
humanity.
It most befitting that the
Symposium will also examine regional judicial institutions, one of which is the
African Court on Human and Peoples’ Rights (ACHPR), whose establishing Protocol
has been ratified by 30 of the 54 African States. Following the withdrawal of
Rwanda in 2016, it is worth observing that currently only 7 of the 54 African States
(Benin, Burkina Faso, Cote d’Ivoire, Ghana, Mali, Malawi and Tanzania) have
made a declaration under Article 34 (6) of the Protocol granting competence to
the Court to receive applications from individuals and NGOs. This jurisdiction,
of course, is in addition to that of States that have automatic access and
competence to the ACHPR.
One finds it edifying that as of 11
October, 2016 of the 119 Applications to the Court, 110 (92 %) were lodged by
individuals, 5 by NGOs and 3 by the African Commission on Human and Peoples
Rights (Banjul Commission). NGOs have also sought 9 Advisory Opinions. What is
also most instructive is that while no AU Member State has filed an application
against another State for an alleged human rights violation; applications by
individuals and NGOs account for 97.47 % of the Court’s cases. Independent
corroboration for this trend is also to be found in the European Court for
Human Rights (ECHR) where inter-State applications are similarly lodged very
seldom. I should also think that it is for the generous price rather than a penalty
for being the Host State that80 of the 119 (67%) applications by individuals
before the Court spring from Tanzania.
One of the clear and pertinent
issues that emerges from the above is the whole question of limited access of
individuals and groups to regional and international judicial instances, and in
particular by victims of international humanitarian and human rights violations.
On the ACHPR, the siren calls by Prof. Makao Mutua that it is an “assault” on
the human rights system to condition access of individuals and NGOS to the
Court to a State Party making a declaration to that effect are telling; as are
those of Dan Jama that to “rely on the ‘predator’ State to institute cases
before the African Court may well be a case of a poacher turned gamekeeper”. Is
the time not ripe for permitting individual and group automatic competency
before the Court rather than subjecting it to an optional regime? I flag this
issue purposely in the hope that it may interest your deliberations and
particularly as regards the competence of the anticipated African Court of
Justice and Human Rights and the architecture and substance of regional and
international justice.
Distinguished Participants,
The propensity is very high when we
converse in a Symposium of a like-minded concave such as this distinguished one
to be self-convincing on the virtues of international justice and its instances,
including the ICC. Any informed student of science or legal logic can postulate
that proposition. In international justice as in national justice, the
perception of the public, witnesses and survivors affected by atrocity crimes
is most critical. It affects legitimacy.
The question here, as properly
posed by Sehan Aref, is not whether the perceptions are false; the more
penetrating question is whether the ICC and other stakeholders have a
responsibility to address them. No doubt they have. The power of the social
media is an important factor to be borne out in perception. Justice at whatever
level must continuously enjoy and retain the full trust and confidence of the
African public. International justice cannot exists or flourish without public
by-in, engagement and participation.
A glance at the existing material on
perceptions of international justice in Africa is that it is seen in some
constituencies as being selective, employing double standards, insensitive to
national and local needs, distant, expensive, comfortable, imposed, externally
driven and dominated. Examples of these perceptions are abound. It has proposed
by AGJA that some of these perceptions are the result of misinformation,
misrepresentation or misunderstand.
Distinguished Participants,
For the Symposium these concerns
and issues arise: Does international justice truly enjoy wide public confidence
and trust in Africa? What about that of victims and survivors? Has the best of
outreach efforts been made when for example a re-known African political-liberation
party avows that ‘the ICC is no longer useful for the purposes it was
intended’? “The ICC” remarked Lord Mark Malloch-Brown, from UN Deputy Secretary
General “got itself on the wrong side of a PR (and political) campaign in
Africa”. How can this Symposium be of guide so that it arrives on right side of
public relations in Africa? Why has the African Fourth Estate not been very audible,
when it is more vocal and virulent on other democratic fronts?
Distinguished Participants,
Going forward, it is important for
this Symposium to reflect on the system of international justice as it begins
to extend its role beyond what African Governments may view as its traditional
mandates.
Distinguished Participants,
In as much as there have been
numerous dialogues and conversations, at different fora, about international
justice, the role of the ICC, the position of domestic courts in adjudicating international
crimes against humanity, issues of complementarily, including ‘positive’, where
support for devolution of judicial authority for atrocity crimes is best assured
and reinforced, the establishment of ad-hoc and hybrid tribunals and
transitional justice mechanisms such as Truth, Reconciliation and Compensation
Commissions and the deployment of International and National IHL and HRs Commissions
of Inquiry, the interconnected themes of the Seven Panels of the Symposium invite your close scrutiny.
Distinguished Participants,
It would be felonious on my part as
I do not briefly share these additional remarks being in Arusha, the seat of
the East African Community, with a population of 167 million inhabitants. Its
newest member, the Republic of South Sudan, on 17th August 2015,
formally committed itself to the establishment of transitional justice,
accountability, reconciliation and healing mechanisms as part of the resolution
of the recurring conflict in Southern Sudan. These include the Hybrid Court for
Southern Sudan (HCSS) to be established by the African Union and the Truth,
Reconciliation and Healing Commission (CTRH). Also worthy of applause is the
establishment in April 2015, of the Special Criminal Court within the national
court system in the Central African Republic charged with the investigation and
prosecution of crimes in the CAR since 2003. These developments represent a
rebirth of hybrid tribunals and renewing of transitional justice. They are a
piece of good news.
As jurists and human rights
activists, we must sustain the search for a more acceptable, holistic and
legitimate system of international justice. One that has room for
cross-fertilization of justice. As I stated at the beginning of my remarks,
State sovereignty is gaining momentum as a radical form of nationalism. Brexit
is one of its recent symptoms. It seems that nation-states will increasingly
seek to reclaim and retain control over economic, legal and judicial matters.
Already, we witness how, in a
number of countries, populist ideas about nationalism, including its aggressive
and ethno-centric kind, is in the ascendancy: in the United States, as clearly
manifested in the character of the ongoing Presidential campaign, in Europe
(France and the Netherlands, in particular) and Africa is no longer the
exception.
The future of a more viable and
effective system of international justice must quickly move towards striking a
delicate balance between its legitimate contribution to the rule of law,
accountability and the fight against impunity and respect for the pursuit of
greater nation-state jurisdictional control over atrocity crimes. For one, as highlighted in the
ICC Prosecutor’s own policy paper (2003), the ICC’s effectiveness and major success
isto be through “the absence of trials by the ICC, as a consequence of the
effective functioning of national systems”. The Prosecutor too correctly
acknowledges that ending impunity is not the preserve of any one institution-the
ICC.
States and their accountability
institutions must in the final analysis be willing and able through effective
national systems to hold responsible all, including those with the greatest
responsibility for mass atrocities. The words of U.S. President Barrack Obama
to both the Ghanaian Parliament and the AU Assembly of Heads of State and
Governments echo a similar message: “Africa doesn’t need strongmen; it needs
strong institutions”. To achieve this law enforcement agencies in African
States require increased public expenditure and at sustained levels by African
Governments. Political will is imperative. Partnership in capacity building is
indispensable.
AGJA and WAYAMO look forward to
your counsel and recommendations on the way forward towards international
justice so that one day we may witness a system of global justice as a reality
in international law and international politics.
I WISH YOU SUCCESSFUL
DELIBERATIONS,
I THANK YOU.
Hakuna maoni:
Chapisha Maoni