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19December 2015 / January 2016

i n FactSpoils of war

Swift justice

Curbing corruption

South Africa’s NPA under siege

Balancing justice?

Issue 35 | December 2015 / January 2016 | www.gga.org

Alain Tschudin CEO

Constanza Montana Editor

Richard Jurgens Deputy Editor

Jami Gavin, Researchers, Karen Hasse, designers Stephen Johnson, Nontobeko Mtshali, Kate van Niekerk

Dani Malan Cover design

Contributors to this issue

Karine G. Barzegar, Nick Branson, Eileen Byrne, James Copnall, Ini Ekott, Celeste Hicks, Brian Klaas, Frederico Links, Rian Malan, Richard Poplak, Micah Reddy, Annelie Rozeboom, Mercedes Sayagues, Mark Schenkel

About Good Governance Africa

Founded in 2012, GGA is a registered NPO with its SADC and Lusophone offices based in Johannesburg and other offices in Accra and Lagos. Its main publications are the Africa Survey and Africa in Fact, a journal that examines issues related to government management.

Opinions expressed are those of the individual authors and not necessarily of Good Governance Africa. Contents may be republished with attribution to GGA.

Contact us at [email protected]

Busi

nes

s

Businesses trading internationally, latest year

Share of…

Country Latest year

firms exporting directly or indirectly

(at least 1% of sales)a

total sales

that are domestic

total sales

exported directly

total sales exported indirectly

firms using material

inputs and/or supplies of foreign

originb

total inputs

of domestic

originb

total inputs

of foreign originb

firms identify-ing customs

and trade regulations as a major constraint

Algeria 2007 5.2% 98.5% 0.8% 0.7% 71.8% 53.3% 46.8% 36.1%Angola 2010 5.8% 98.6% 0.4% 1.0% 60.7% 74.7% 25.3% 35.8%

Benin 2009 12.8% 91.9% 2.7% 5.4% 55.8% 59.3% 40.7% 56.2%Botswana 2010 9.6% 96.6% 1.8% 1.6% 86.3% 38.4% 61.6% 15.8%

Burkina Faso 2009 8.7% 97.2% 1.1% 1.6% 76.5% 48.0% 52.0% 42.6%Burundi 2006 2.1% 99.2% 0.6% 0.3% 78.5% 57.2% 42.8% 20.9%

Cameroon 2009 9.3% 96.5% 1.8% 1.7% 63.2% 64.7% 35.3% 26.3%Cape Verde 2009 4.0% 97.0% 0.6% 2.4% 59.5% 53.1% 46.9% 27.2%

Central African Republic 2011 15.1% 94.7% 3.0% 2.4% 85.1% 38.7% 61.3% 31.9%Chad 2009 11.8% 94.0% 3.0% 3.0% 67.6% 53.4% 46.6% 57.4%

Comoros … … … … … … … … …Congo (DRC) 2013 9.0% 96.7% 1.7% 1.5% 48.6% 71.4% 28.6% 25.3%Congo (Rep.) 2009 9.0% 96.7% 1.3% 2.0% 60.9% 52.6% 47.4% 45.9%Côte d'Ivoire 2009 3.4% 98.7% 1.0% 0.3% 30.3% 80.7% 19.3% 19.4%

Djibouti 2013 22.4% 87.6% 8.7% 3.7% 71.4% 36.7% 63.3% 21.8%Egypt 2008 25.3% 89.9% 9.1% 1.0% 48.4% 75.2% 24.8% 22.5%

Equatorial Guinea … … … … … … … … …Eritrea 2009 5.4% 96.9% 3.1% 0.0% 42.5% 76.0% 24.0% 2.0%

Ethiopia 2011 6.5% 95.7% 2.4% 1.9% 54.9% 69.3% 30.7% 19.7%Gabon 2009 11.8% 95.1% 3.4% 1.6% 81.0% 41.3% 58.7% 35.1%

Gambia 2006 8.6% 98.4% 1.0% 0.6% 63.2% 47.8% 52.2% 12.8%Ghana 2007 24.4% 91.8% 3.9% 4.3% 51.1% 73.4% 26.6% 9.8%Guinea 2006 14.7% 96.5% 2.1% 1.4% 66.1% 56.6% 43.4% 12.4%

Guinea-Bissau 2006 6.4% 97.1% 2.2% 0.7% 68.4% 54.2% 45.8% 25.6%Kenya 2013 36.1% 77.7% 11.1% 11.3% 52.7% 73.4% 26.6% 22.1%

Lesotho 2009 12.5% 93.0% 4.4% 2.6% 68.9% 41.5% 58.5% 21.7%Liberia 2009 1.0% 99.4% 0.0% 0.6% 56.8% 58.3% 41.7% 15.6%

Libya … … … … … … … … …Madagascar 2009 15.6% 89.0% 8.1% 2.9% 67.0% 54.0% 46.0% 18.7%

Malawi 2009 6.4% 97.3% 2.3% 0.4% 51.7% 66.9% 33.1% 11.0%Mali 2010 10.5% 95.5% 1.6% 3.0% 59.0% 69.1% 30.9% 16.9%

Mauritania 2006 8.8% 95.5% 3.5% 1.0% 66.8% 47.4% 52.6% 25.9%Mauritius 2009 14.6% 92.3% 4.1% 3.7% 56.0% 57.2% 42.8% 17.6%Morocco 2007 37.5% 72.9% 23.5% 3.6% 73.4% 48.3% 51.7% 14.3%

Mozambique 2007 6.1% 97.8% 2.1% 0.0% 29.2% 80.5% 19.5% 12.2%Namibia 2006 9.2% 97.5% 1.7% 0.8% 83.0% 41.0% 59.0% 7.1%

Niger 2009 10.6% 97.3% 1.1% 1.6% 96.4% 6.8% 93.2% 31.6%Nigeria 2007 2.0% 99.5% 0.4% 0.2% 28.1% 90.1% 9.9% 5.0%

Rwanda 2011 6.0% 98.5% 1.4% 0.2% 74.6% 55.9% 44.1% 18.1%São Tomé and Príncipe … … … … … … … … …

Senegal 2007 13.4% 96.0% 3.4% 0.6% 45.8% 70.5% 29.5% 15.1%Seychelles … … … … … … … … …

Sierra Leone 2009 3.2% 97.8% 0.2% 2.0% … … … 26.9%Somalia … … … … … … … … …

South Africa 2007 18.4% 96.1% 2.5% 1.4% 37.8% 85.4% 14.6% 1.9%South Sudan … … … … … … … … …

Sudan … … … … … … … … …Swaziland 2006 11.0% 94.1% 5.5% 0.4% 62.9% 56.7% 43.3% 16.5%Tanzania 2013 13.9% 93.2% 2.2% 4.6% 59.1% 69.2% 30.9% 38.3%

Togo 2009 24.6% 84.2% 6.9% 8.9% 72.3% 39.6% 60.4% 27.5%Tunisia … … … … … … … … …

Uganda 2013 14.3% 94.2% 0.9% 4.9% 40.6% 86.4% 13.6% 19.5%Western Sahara … … … … … … … … …

Zambia 2013 12.3% 94.4% 2.0% 3.6% 48.8% 73.4% 26.6% 8.6%Zimbabwe 2011 11.0% 97.7% 1.2% 1.1% 63.3% 67.3% 32.7% 7.1%

Sub-Saharan Africa … 10.9 94.7% 2.6% 2.7% 62.1% 58.6% 41.4% 25.6%

Source: World Bank, Enterprise Surveys, http://www.enterprisesurveys.org, accessed 02 July 2014

The World Bank surveys a representative sample of firms of different sizes in sectors other than agriculture and financial services using questionnaires and face-to-face interviews. The figures above represent averages per country, unless otherwise indicated.

a Indirect exports are products sold domestically to a third party that exports them.b Data are from manufacturing firms only

204 // Africa Survey 2014 Good Governance Africa

BUSI

NES

S

0% 10% 20% 30% 40% 50% 60% 70%

Chad 2009 Benin 2009

Congo (Rep.) 2009 Burkina Faso 2009

Tanzania 2013 Algeria 2007 Angola 2010 Gabon 2009

Central African Republic 2011 Niger 2009 Togo 2009

Cape Verde 2009 Sierra Leone 2009

Cameroon 2009 Mauritania 2006

Guinea-Bissau 2006 Congo (DRC) 2013

Egypt 2008 Kenya 2013

Djibouti 2013 Lesotho 2009 Burundi 2006 Ethiopia 2011 Uganda 2013

Côte d'Ivoire 2009 Madagascar 2009

Rwanda 2011 Mauritius 2009

Mali 2010 Swaziland 2006 Botswana 2010

Liberia 2009 Senegal 2007 Morocco 2007 Gambia 2006 Guinea 2006

Mozambique 2007 Malawi 2009 Ghana 2007

Zambia 2013 Namibia 2006

Zimbabwe 2011 Nigeria 2007 Eritrea 2009

South Africa 2007

Sub-Saharan Africa

Share of fi rms identifying customs and trade regulations as a major constraint, latest year %

Source: World Bank, Enterprise Surveys, http://www.enterprisesurveys.org, accessed 02 July 2014

Good Governance Africa Africa Survey 2014 // 205

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404 // Africa Survey 2015-2016 Good Governance Africa

Child marriage, latest year (2005-2013)

Madagascar41.2%

South Africa5.6%

Lesotho18.8%

Swaziland6.5%

Namibia8.6%

Botswana

Zimbabwe30.5%

Comoros31.6%

Malawi49.6%

Tanzania36.9%

Zambia41.6%

Angola

Congo (DRC)39.4%

Burundi20.4%

Rwanda8.1%

Uganda39.7%

Kenya26.4%

Congo (Rep.)32.6%

Gabon21.9%

Equatorial Guinea29.5%

Cameroon38.4%

Central African Republic

67.9%

South Sudan51.5%

Ethiopia41.0%

Somalia45.3%

Djibouti5.4%

Sudan32.9%

Egypt16.6%

Nigeria42.8%

Togo25.2%

Ghana20.7%

Côted’Ivoire33.2%

Liberia37.9%

Sierra Leone43.7%

Guinea51.7%

Mali55.0%

Burkina Faso51.6%

Guinea-Bissau22.0%

Gambia36.4%

Senegal32.9%

Mauritania34.3%

Morocco15.9%

Algeria1.8%

Niger76.3% Chad

68.1%

Libya

São Tomé and Príncipe34.4%

Benin31.9%

Tunisia1.6%

Eritrea40.7%

Western Sahara

Mauritius

Seychelles

Cabo Verde18.0%

Mozambique48.2%

>50%40-49.9%20-39.9%<19.9%

Share of women aged 20-24 married before they were 18

No information

Source: p. 620

Africa’s biggest export and import in 2013

crude petroleum petroleum products

43%

of the value of all exports of the value of all imports

1.2%

3.4%

11.1%

13.2%

20.0%

41.4%

65.5%

26.8%

2.1%

14.9%

INTRA-AFRICAN TRADE, 2013

3.5% of world

imports came from Africa

3.3% of world exports

went to Africa

AGRICULTURAL RAW MATERIAL FOOD FUEL MANUFACTURING ORES AND

METALS

Sub-Saharan Africa’s exports and imports, 2013

Share of total exports to China

AFRICA IN WORLD TRADE, 2013

14.3% of Africa’s imports came from within

the continent

14% of Africa’s exports

went to other African countries

Sierra Leone

Congo (Rep.)

Angola

Mauritania

Congo (DRC)

Gambia

Liberia Mozambique

Central African Republic

Zimbabwe

80%

52%

48%

44%

39%

34%

31%

29%

29%

27%

Rest of Africa

FOREIGN DIRECT INVESTMENT PROJECTS, APRIL 2015

South Africa (238) Kenya (127)Morocco (99)Egypt (98)Ghana (95)Nigeria (92)

749612 9%

Impo

rts

Expo

rts

Now with colour maps and infographics for each chapter, the Africa Survey is an essential tool for anyone researching or interested in the continent.

Electronic and Excel files are also available.

Africa in Fact is published by

2015

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Madagascar has the

highest number of threatened

mammal s pecies in Africa, at 114

Egyptian military personnel made

up 25% of Africa’s total armed

f�ces in 2012

Life expectancy increased by 21 years in Eritrea between 1975 and 2013

Africa’s food production

increased by 56% between

2000 and 2013

22 African countries imp�ted m�e

from China than from any other

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37% of Somali adults used a mobile phone to

send � receive money in 2014

Sub-Saharan Africa received

$3.5bn in aid to ed

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2012

One in four

South Africans is obese

The presidents of Angola, Equat�ial Guinea and Zimbabwe

have each been in power f� 35 years

Only 1.6% of people have

piped water at home in Central African Republic in 2015

Nigeria

and South Africa accounted f� 55% of sub-Saharan Africa’s

GDP in 2014

30% of firms in sub-Saharan Africa say tax administration is a

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In Niger 40% of

girls aged 15-19 had

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43% of Namibia’s terri-

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Algeria spent $11.3 billion

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Sub-Saharan A

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Demographics | Economy | Trade & Investment | Business | Employment & Incomes | Politics &

Governance | Infrastructure | Health | Education | Sex & Gender | Crime & Security | Environment

3


4 About our contributors

5 Editorial

7 Mission impossible? by Annelie Rozeboom

African opposition to the International Criminal Court threatens an important legal recourse

11 Swift justiceby Nick Branson

Temporary courts in the Democratic Republic of Congo bring law to outlying areas

15 International crimes at homeby Mark Schenkel

Uganda is ready for its first war crimes tribunal

19 Cross-border justiceby Celeste Hicks

Could Dakar, the capital of Senegal, become “The Hague of Africa”?

23 Dragging out the law by Frederico Links

Despite attempts at reform, Namibia’s courts deny litigants a speedy trial

27 Crime and politicsby James Copnall

Sudan’s president, Omar al-Bashir uses the ICC to boost his ratings

31 Rule by fearby Richard Poplak

The absence of law has extinguished all justice in Eritrea

Contents35 The pharaoh’s new clothes

by Karine G. Barzegar

Are Egypt’s new anti-terrorism and electoral laws a new repression?

39 Forgive and forget?by Eileen Byrne

A new truth commission struggles to retain its role in investigating corruption in Tunisia

43 Rape and justice by Mercedes Sayagues

Several laws address rape and domestic violence in Mozambique, but their enforcement is shaky

47 Countering the chillby Micah Reddy

Laws to silence dissent are fading into disfavour in southern Africa

50 Spoils of warby Brian Klaas

Victor’s justice is inevitable in post-election conflict in Côte d’Ivoire

53 Curbing corruptionby Ini Ekott

Nigeria’s new president has vowed to fight corruption, but will his judicial reforms work?

57 The case of Nomgcobo Jibaby Rian Malan

A controversial appointment deepens doubts about the South African president’s commitment to the rule of law

63 Africa in figures: trust in the courts

4 AFRICA IN FACT | ISSUE 35

KARINE G. BARZEGAR is a Paris-based journalist who covers Algeria, Egypt and Morocco. She has reported for TV5 Monde, Al Jazeera English and Slate news websites.

NICK BRANSON is Senior Researcher at Africa Research Institute (ARI). He holds an MA in International Studies and Diplomacy from the School of Oriental and African Studies (SOAS), University of London, and is working towards a PhD there.

EILEEN BYRNE is a journalist covering north Africa from Tunis. She contributes to The Economist, the Guardian and other media. She has a postgraduate degree in Middle Eastern history from Oxford University.

JAMES COPNALL is the author of “A Poisonous Thorn in our Hearts: Sudan and South Sudan’s Bitter and Incomplete Divorce”. Formerly the BBC correspondent in Côte d’Ivoire, Morocco, Sudan and South Sudan, he is now based in London.

INI EKOTT heads the politics/foreign desk at Premium Times, an online newspaper based in Abuja. He has reported for Next, an investigative newspaper in Lagos, among other publications.

CELESTE HICKS is a freelance journalist based in Casablanca, Morocco. She works for a number of media outlets, including the BBC and the Guardian. She is the author of “Africa’s New Oil”, published by Zed Books in 2015. She was formerly the BBC correspondent in Mali and Chad.

BRIAN KLAAS is a Clarendon scholar and researcher at Oxford University. He has also served as a political adviser on Madagascar to the International Crisis Group and the Carter Center’s election observation mission for Madagascar’s December 2013 elections.

FREDERICO LINKS is editor of the Namibian monthly current affairs magazine Insight Namibia and a researcher on governance issues, mostly for the Institute

for Public Policy Research, a think-tank based in Namibia.

RIAN MALAN is a Johannesburg-based musician and journalist best known for his 1990 memoir, “My Traitor’s Heart”, soon to be republished as a Vintage modern classic. A collection of his subsequent work, “Resident Alien”, was published in 2009. Mr Malan has also made several award-winning documentaries.

RICHARD POPLAK is an award-winning freelance journalist and author who has worked extensively in Africa and the Middle East. He writes regularly for the Daily Maverick, a Johannesburg-based online news site.

MICAH REDDY is a South African media activist with the Right2Know Campaign. A former managing editor at the Yemen Times, he has worked in the Middle East as a freelance journalist and editor. He holds a Masters in African Studies from Oxford University and is a co-founder of Sound Africa Podcast.

ANNELIE ROZEBOOM is a Dutch journalist and author. She is the editor of the Mada English Journal, Madagascar’s only English-language publication. She contributes to the IRIN Humanitarian News Service and Radio Netherlands Worldwide and has written four books about China, Tibet and Madagascar.

MERCEDES SAYAGUES is a freelance journalist who covers Angola and Mozambique for the Daily Maverick. She is the author of two studies on AIDS in Africa and one on gold mining in Mali.

MARK SCHENKEL is a freelance journalist based in Kampala, Uganda. He reports about East African affairs for Radio Netherlands Worldwide and for business newspapers in the Netherlands (Het Financieele Dagblad) and Belgium (De Tijd). He has also contributed to the Guardian and Uganda’s Daily Monitor.

About our contributors


Editorial: Dame Justice, once blind, now sees

Freshly returned from a visit north of the Limpopo, where GGA co-sponsored a peace event, I can confirm that this issue of Africa in Fact on courts and justice could not arise at a more opportune moment. In

that country context, the problematic notion of an “arrested transition” rears its hydra-head and with it the well-worn mantra of “peace now, justice later” is becoming tired.

The catch-word uttered time and again, as if on repeat, is “accountability”. But how, when, why, by whom, and for what?

The tension between the International Criminal Court and the African Un-ion is palpable. In this milieu, the AU’s Extraordinary African Chambers is a really quite remarkable initiative; trying Hissène Habré for his machinations in Chad and showing that our continent really is capable of “doing it for itself”. This whilst Laurent Gbagbo stews at the Hague, his trial imminent.

At a less spectacular level, perhaps, but critically for the expedition of justice, consider the low-tech but high value innovation of audiences foraines or mobile courts that are rolling out civil and military prosecutions in the eastern DRC. Meanwhile, neighbouring Uganda sees the trial of former LRA commander Thomas Kwoyelo, which, warts and all, represents a genuine attempt to bring those responsible for atrocities to justice.

Africa is taking account.Nonetheless, the struggle for “bread, justice and liberty” continues and a

plethora of challenges remains. Consider the corruption epidemic in Nigeria, where the call for the refusal to grant concurrent sentences is an immediate deterrent to those contemplating malfeasance. As long as impunity is tolerated, justice will be held in abeyance. One wishes to avoid another Namibian sce-nario, where legal processes appear to lag, ad infinitum.

So, in short, the jury on justice in Africa is still out. And whilst in recess, we need to ask critically as we ruminate on insult laws: who bears the brunt of the current insult? Quite frankly, it is meted out to the people of Africa and espe-cially to those deprived of democratic freedoms, as observed with crackdowns in Egypt, arbitrary arrests and detentions in Eritrea, and unpunished gender-based violence, as witnessed in Mozambique, amongst other countries. Côte

6

Dame Justice, once blind, now sees

AFRICA IN FACT | ISSUE 35

d’Ivoire is instructive insofar as we observe the politicisation of justice in the aftermath of conflict.

Perhaps the current state of affairs is best captured in the case of the Sudan’s ever-elusive Omar Al-Bashir, who flagrantly manages to evade capture with a little help from his friends in the “old boys club”. Seemingly immune from pros-ecution for human-rights violations in Darfur, Bashir jaunts across the conti-nent from Nigeria to South Africa, begging the question, “Why should any sit-ting head of state be above the law?” Good governance rather implies that first citizens subject themselves to the law, thus acting as role-models for society.

Quite. Which is why the example of Ms Jiba, of South Africa’s National Pros-ecuting Authority, appears to be especially revealing, given her chequered past and links to executive power. And whilst we can bang on endlessly at leaders who are often perceived as the “Achilles heel” of justice, we need equally to at-tend to civil society, and recognise the role of citizens and local communities who take the initiative. This was recently the case with the award of the 2015 Nobel Peace Prize to a group of civil society activists representing four rights organisations in Tunisia.

As if to confirm the enshrined right to peaceful assembly celebrated above, consider the student protests currently afoot in South Africa. Largely apolitical, the students are demanding something greater than a freebie; their concerns relate to a broader, dismal social and economic reality. And herein lies the bite: justice involves much more than a crude criminal and political redress. The collapsed pedestrian bridge linking the hyper-affluent suburb of Sandton with the erstwhile apartheid township of Alexandria speaks directly to the related phenomena of economic injustice and structural (or indirect) violence.

Whilst Lady Justice may not be able to see her scales being tipped by those invisible hands in—and of—power, she no doubt feels intuitively any shift in balance. With the people behind her and her staff in hand to guide her, the avenue ahead lies open. The conundrum, however, remains, “Is Justice truly blind, or does she really need to see?”

With greetings of Peace and Goodwill at this time and all best wishes for 2016,

Alain TschudinCEO

7


Africa: the search for justiceAfrican opposition to the International Criminal Court threatens an important legal recourse available to the continent’s human-rights victims

Mission impossible? Annelie Rozeboom

Some 122 states have ratified the Rome Statute that established the International Criminal Court

(ICC) in 2002, among them 34 African countries. However, two cases against current African leaders have focused attention on growing criticism that the court has an apparently exclusive focus on Africa.

In one case, in March 2011, the ICC charged Kenyan president Uhuru Kenyatta for instigating election violence in 2007. The court dropped the charges in December 2014 when the prosecutor and judges accused the Kenyan government of failing to cooperate with it in good faith.

In the other case the court issued an arrest warrant in 2009, and again in 2010, for the Sudanese president, Omar al-Bashir, on charges of genocide, crimes against humanity and war crimes. However, it has since failed to detain him for trial. Last June, he was allowed to leave South Africa, a signatory to the Rome Statute, hours

before the country’s High Court ordered his arrest.

While still facing the prospect of trial in The Hague, in October 2013 Mr Kenyatta attacked the ICC in a speech to the African Union (AU), saying the ICC had become “a toy of declining imperial powers”. Mr Bashir, in a 2009 interview, said that the ICC was a “tool to terrorise countries that the West think are disobedient”. And the ANC, South Africa’s ruling party, in a statement on the day Mr Bashir was allowed to abscond from the country, said that the ICC was “no longer useful for the purposes for which it was intended”.

African opposition to the ICC is coalescing around the argument that the court represents the interests of other countries. “The ICC’s sharpest critics claim that international criminal law does not apply to the powerful, only the weak—hence the focus on Africa, the new court’s ‘laboratory’,” writes Terence McNamee in a 2014 discussion paper on “The ICC and Africa”, published by the Johannesburg-based Brenthurst Foundation.

But the ICC prosecutor, Fatou Bensouda argues that most of the cases the court is presently trying were in fact referred to it by African countries. “These referrals are basically the countries requesting the ICC to intervene,” she said in a recent BBC interview, adding that the debate about the ICC’s focus on Africa deflected attention from the fact that each of the cases it was trying involved victims.

Meanwhile, the AU has moved to extend the jurisdiction of existing courts on the continent to try people

8

Mission impossible?


accused of serious international crimes. “Expanding the mandate of the African Court of Justice and Human Rights…would help us promote finding African solutions to African problems,” the South African president, Jacob Zuma told the National Assembly last year.

Other moves in this direction include

the establishment by Uganda and Kenya—both members of the AU—of international crimes divisions of their High Courts, says Mr MacNamee. In June 2014, the AU extended the African Court’s jurisdiction to include individual liability for serious crimes committed in violation of international law—while at the same time excluding sitting heads

of state and senior government officials from the court’s jurisdiction.

Given these African challenges to its credibility and jurisdiction, can the ICC establish itself as an undisputed world court?

One view is that the ICC simply needs more time to establish itself,

Jacqueline McAllister argues in an August 2015 article in Foreign Affairs. In her view, the International Criminal Tribunal for the former Yugoslavia (ICTY) established in 1993—now in the process of shutting down—is an example. Though it had no police powers and operated in active war zones, it eventually secured the arrests of the region’s most notorious leaders—Radovan Karadzic, a Serbian politician, and Ratko Mladic and Zdravko Tolimir, two Bosnian Serb military commanders.

They were charged with a range of crimes, including genocide and crimes against humanity. In 2012, Mr Tolimir was sentenced to life imprisonment, which was confirmed in 2015. The trials of the other two accused continue.

Some commentators argue that the ICC must demonstrate success in bringing non-African perpetrators of serious crimes to trial and in achieving convictions against them. The court is currently conducting preliminary examinations in a number of situations outside of Africa, including war crimes and other abuses allegedly committed by the Taliban in Afghanistan, as well

Mad

agas

car

South Africa Lesotho

Swaziland

Namibia Botswana

Zimbabwe

ComorosMalawi

Tanzania

ZambiaAngola

Congo (DRC) Burundi

RwandaUganda

Kenya

Cong

o (Re

p.)

GabonEquatorial Guinea

CameroonCentral African

Republic

South Sudan Ethiopia

Somalia

Djibouti

Sudan

Egypt

Nigeria

TogoGhanaCôte

d’IvoireLiberia

Sierra Leone

Guinea

Mali

Burkina FasoGuinea-BissauGambia

Senegal

Mauritania

Morocco

Algeria

NigerChad

Libya

São Tomé and Príncipe

Beni

n

Tuni

sia

Eritrea

Western Sahara

Mauritius

Seychelles

Cabo Verde

Moz

ambi

que

Signatories to the Rome Statute

The buck stops where?ICC signatories

Source: International Criminal Court

9

Mission impossible?


as the alleged torture or ill treatment of conflict-related detainees by US armed forces there in the period between 2003 and 2008.

Similar investigations are ongoing in Georgia, Guinea, Columbia and Honduras. The prosecutor has also reopened the preliminary examination of the responsibility of United Kingdom officials for war crimes involving systematic detainee abuse in Iraq from 2003 until 2008.

Whether these investigations will make it to trial is an open question. “Each case stands on its own legal merits,” says Professor David Crane, Chief Prosecutor of the Special Court for Sierra Leone from April 2002 until July 2005.

In cases where a suspected serious international criminal is a citizen of a country that is not a signatory of the Rome Statute, the court must obtain a referral from the UN Security Council. But if it were to seek to indict Syria’s president, Bashar al-Assad, for instance, it would be dependent on the politics of the permanent, veto-wielding powers, such as Mr Assad’s Russian and Chinese allies.

“The ICC is often blamed for practice that is really a result of Security Council action or lack thereof,” says Elise Keppler, associate director of the International Justice Program at Human Rights Watch.

Other commentators argue that the ICC will only be able to bring its power to bear on African, and indeed other perpetrators of serious crimes around the world, if it is given the ability to sanction member states. “There must be defined repercussions

for states that refuse to cooperate with the ICC’s requests,” writes Gwen P. Barnes in a 2011 article in the Fordham International Law Journal.

To be more effective, the ICC would need to amend the Rome Statute to make it possible to suspend or, in extreme cases, expel member states when they fail to cooperate with the court, Ms Barnes argues. These measures would likely cause the member states to think twice before breaching the Rome Statute, she writes.

But Niels Blokker, a professor of international institutional law at Leiden University thinks the proposal is unrealistic. “Amending the statute is a very complex procedure. It’s a logical thought that countries that do not comply should be thrown out, but what would that achieve? The whole purpose of the Rome Statute is to fight against impunity. For this to happen, you need to be able to continue the dialogue with countries, and you won’t achieve this by suspending or expelling them.”

Every international organisation struggles with members who don’t comply with the rules, says Professor Blokker. “It’s the big dilemma of international cooperation. At the United Nations there is the possibility to suspend or expel members, but this has never been done. When you do this, you take away your influence over the country. In the end, it’s not the ICC that should discipline countries that don’t comply. The member states will have to discipline each other.”

Meanwhile, some critics argue that the African move to put suspects of serious international crimes on trial on the continent is not without its

10

Mission impossible?


© International Criminal Court

problems. International legal and human rights

NGO Avocats Sans Frontières (Lawyers without Borders) says that the move may be “a technical manoeuvre to oust the jurisdiction of the ICC”. A wider mandate for the African Court is likely to result in competing jurisdictions and a duplication of the work of the ICC, it argues in a July 2012 paper.

The AU’s insistence on excluding

sitting heads of state from the jurisdiction of the African Court has also been severely criticised. At the time, some 140 African civil society organisations and international organisations signed a declaration against it. “The AU is obligated to ensure that accountability mechanisms have a basis to succeed and [to ensure that the court’s jurisdiction is not used] as a subterfuge for a political agenda,” Professor Crane says. “No one is above the law, not even the ‘good old boys

club’ of African leaders.”In the meantime, the ICC continues

to deal with current cases, including this year’s trials of Bosco Ntaganda, accused of war crimes in the Democratic Republic of Congo, and Laurent Gbagbo, a former president of Côte d’Ivoire accused of crimes against humanity. It recently showed its teeth by putting Congolese politician Jean-Pierre Bemba, his lawyer and three others on trial for “corruptly influencing witnesses by giving them money and instructions to provide false testimony, presenting false evidence and giving false testimony in the courtroom”, according to an ICC press release about the case.

The ICC is also considering referring Mr Kenyatta’s case to the signatories of the Rome Statute, or to the UN, because of Kenya’s failure to cooperate, possibly with the aim of imposing sanctions. In October the ANC indicated that it was considering withdrawing South Africa from the Rome Statute. In the same month, the country asked the ICC for more time to formulate its response to the court’s request for an explanation of its handling of Mr Bashir. The ICC has given South Africa until December 31st 2015 to respond.

These issues suggest that there is a long way to go before the ICC achieves worldwide, and especially African credibility.

Those in glass houses


Democratic Republic of Congo: mobile courts With a judicial system that is often far away, temporary courts bring law to outlying areas, even if they do not meet the highest standards

Swift justiceNick Branson

Over the past two decades, a series of interconnected conflicts has blighted the Democratic Republic of Congo (DRC), with a dispro-portionate impact on women and girls. Combatants from myriad

rebel groups and the Congolese armed forces have used rape as a weapon of war.

While it is nearly impossible to obtain credible statistics on the number of victims, several reports have recorded a pattern of sexual and gender-based violence that has been inflicted on women and girls. Despite nu-merous peace deals, instability continues to affect the country’s eastern provinces of North Kivu, South Kivu and Maniema.

Victims of sexual violence often cannot pursue justice against the alleged culprits because attorneys and courts are many miles away in the DRC’s provincial capitals. However, since 2004 international organisations have harnessed an ambiguity in the country’s 1960 constitution to organise mo-bile courts (audiences foraines) to hear civil and military cases.

Under the mobile courts programme, international donors, such as Avocats Sans Frontières (Lawyers without Borders) and the American Bar Association-Rule of Law Initiative (ABA-ROLI), fund the travel of Congo-lese prosecutors and judges from provincial capitals to remote areas, giv-ing poor women and girls a chance at justice.

Teams of attorneys help state prosecutors to investigate these crimes. They interview victims, suspects and witnesses, collect evidence and issue summonses. The donors fund the legal aid providers, who supply attor-neys to defend the accused. With the assistance of a registrar and bailiff,

12

Swift justice


three judges then hear the case in a temporary court, ideally in a town hall but often under a tent, in plain view of hundreds of onlookers from sur-rounding villages.

These low-tech tribunals sit in stark contrast with those heard by the International Criminal Court (ICC), which has prosecuted several Congo-lese rebel leaders since the Rome Statute entered into force in July 2002. In August 2015, the ICC began hearing the case of Bosco Ntaganda at its seat in The Hague. Following clamours from legal experts and civil society groups to bring proceedings closer to victims, ICC judges assigned to the Ntaganda case recommended holding the trial’s opening statements in Bu-nia in Orientale Province, where the crimes were committed.

Unfortunately, they were over-ruled by the court’s presidency, which cited concerns regarding potential trauma, security and high costs, and concluded that the benefits did not outweigh the risks. ICC judges and civil society plan to call 88 witnesses, so Mr Ntaganda may not be sentenced until the end of the decade. His compatriots, Thomas Lubanga and Ger-main Katanga, spent between six and seven years in custody before they were convicted.

In comparison, lawyers in the eastern DRC move very quickly. On Feb-ruary 21st 2011, a mobile court in Baraka, South Kivu, prosecuted a local commander and eight of his subordinates for rapes committed the previ-ous New Year’s Day in nearby Fizi. Lieutenant-Colonel Kibibi Mutware became the highest-ranking Congolese military officer to stand trial. His conviction within eight weeks of the crimes (at a time when the ICC had yet to issue its first judgement) signalled an end to impunity for local soldiers. “The untouchable has been touched,” said Thérèse Kulungu, the lawyer who represented the 49 victims.

Under the DRC’s monist legal system, international treaties ratified by the government are immediately incorporated into national law. Mrs Ku-lungu took advantage of this structure and applied the Rome Statute and other human rights conventions directly in Congolese courts.

At roughly $4,000 per case, according to the ABA-ROLI, mobile courts compare favourably with the remote, slow and expensive ICC. Itinerant tribunals hear cases close to where the crimes were committed, making it possible for poor Congolese women and girls to testify, seek redress and restore their dignity in front of their communities. Successful convictions send a message that justice can be done, and potentially deter further

13

Swift justice

December 2015 / January 2016

rapes and violence.The programme, however, has its limitations. The mobile courts hear

about 20 cases in a village during an average two-week period. This means judges spend less time deliber-ating than their counterparts in the provincial capitals. The roving tribunals also report much higher conviction rates than their brick-and-mortar equivalents, leading to ac-cusations of rushed justice. “Judges face a moral obliga-tion to convict” because in-ternational donors are paying for their services, Nynke Dou-ma and Dorothea Hilhorst, researchers at Wageningen University in the Netherlands, argue in a 2012 paper.

It is difficult, however, to compare the two court systems. When on the road, prosecutors select and thoroughly investigate a few highly cred-ible cases, whereas in the provincial capitals of Bukavu, Goma and Kindu, prosecutors may pursue numerous cases but fail to accumulate sufficient evidence to obtain a conviction. If a verdict is dubious, donors encour-age the lawyers to appeal rather than to question the competence or in-dependence of the judges, explains Charles-Guy Makongo, ABA-ROLI country director.

Mobile courts remain “a work in progress”, writes former acting New York Supreme Court Judge Mary McGowan Davis in a 2012 evaluation. They “cannot be expected to meet stringent international due process standards immediately given the significant constraints under which they operate”.

Another concern is that Congolese military courts cannot prosecute the most senior generals because the presiding judge must hold a superior rank to the accused. The Congolese armed forces are extremely top-heavy as a result of successive peace deals that included integrating rebel leaders into the army. This means the “big fish” will escape prosecution, argues Pascale Kambale, an international human rights lawyer with the Open

2,648

women

908 children

81 men

3,635 victims of sexual violence, 2010-2013

Source: UN

14

Swift justice


Society Foundations. But this could be improved if the judicial services commission, rather

than the military command, nominated judges. This would depoliticise the process and enable the most capable judges to serve across Congolese ter-ritory, regardless of the officers posted to their jurisdiction. Of course, the military might resist such an attempt for the civilian legal system to en-croach on its independence, but this approach remains the only prospect of addressing impunity.

Justice may be closer and quicker, but victims are rarely compensated. International donors only fund the trial phase, and lawyers have little in-centive to pursue reparations given the complexity of the system. For in-stance in the Baraka case, the judges ordered the payment of $10,000 to each of the 49 plaintiffs.

The Congolese state argues it lacks the resources to pay compensation when found liable for the actions of army soldiers on duty. In some in-stances, convicted criminals have escaped from prison. The frequency of jailbreaks in the DRC raises fears of reprisals from the convicted soldiers.

Moreover, the future of the mobile courts remains uncertain as long as they depend on international goodwill. Supporters of the courts argue that they were never designed to be permanent but rather to provide a tempo-rary solution to an epidemic of sexual and gender violence. As the conflict dissipates and security improves, the programmes may be phased out.

Before they are disbanded, the Congolese should consider what lessons to apply as Joseph Kabila, the president, moves to reconfigure regional government by replacing the DRC’s 11 provinces with 26 new ones. North Kivu, South Kivu and Maniema provinces will be spared the axe, having been one region until 1988. But in the rest of the country, a renewed gov-ernment mandate provides an opportunity to revisit services the new pro-vincial capitals should provide. Mobile courts might be one way to restore faith in the role of the Congolese state.

15


Uganda: justice in transitionThis east African nation is ready for its first war crimes trial

International crimes at home Mark Schenkel

Thomas Kwoyelo is the first person to face trial in Uganda for crimes he allegedly committed while

fighting for the Lord’s Resistance Army (LRA), a nearly 30-year-old rebel group that now operates in the Central African Republic and the Democratic Republic of Congo (DRC).

A Uganda Supreme Court ruling in April removed legal hurdles for Mr Kwoyelo’s criminal trial to resume, marking an important transition to using a special domestic court instead of relying on an amnesty law to deal with combatants of the rebel outfit led by Joseph Kony. Since the LRA began operating in northern Uganda in 1987, the group has killed more than 100,000 people, abducted more than 60,000 and displaced about 2.5m, according to the UN. A date for the resumption of the trial, which was suspended in 2011, has not been set.

Uganda has adopted a reconciliatory approach towards LRA combatants, but commentators say applying it

to serious crimes, such as murder, rape and kidnapping has fostered impunity. The country’s Directorate of Public Prosecutions (DPP) says that the Kwoyelo trial will offer lessons to “the international community” on prosecuting internationally defined crimes at a national level.

Thomas Kwoyelo was a colonel, a mid-level LRA commander. He ended up in the hands of the Ugandan army after a joint offensive by Uganda, the DRC, and the Sudan People’s Liberation Army from southern Sudan (before it became independent South Sudan in 2011) in December 2008 on an LRA camp in the north-eastern DRC. Prosecutors charged him in 2010 for violating Uganda’s 1964 Geneva Conventions Act by committing murder, kidnapping and destroying property in northern Uganda. His trial began the following year.

After four years of legal challenges, a Supreme Court ruling in April finally set the stage for the resumption of Mr Kwoyelo’s trial before the High Court’s International Crimes Division (ICD), a court established in May 2011 specifically to deal with genocide, crimes against humanity, war crimes, terrorism, human trafficking, piracy and other international crimes.

“Thomas Kwoyelo is a guinea pig for the Ugandan state and judiciary,” says one of his lawyers, Nicholas Opiyo. He argues that Mr Kwoyelo, like all other LRA combatants before him, is entitled to amnesty.

Most LRA fighters were forced to join the LRA and attack their own communities. To lure them away from the rebel group, the government


International crimes at home

established the Amnesty Act in 2000. Since then, arrested or defecting LRA combatants who denounce rebellion can apply for amnesty.

In the last 15 years, about 13,000 LRA combatants have received amnesty, according to Uganda’s Amnesty Commission. Mr Kwoyelo, who claims that the LRA abducted him when he was 13 years old, applied for it in 2010 while in detention. The Amnesty Commission was willing to honour his request but Uganda’s DPP, which formally has the right to determine eligibility, decided to bring criminal charges against him.

The Supreme Court ruling is “one step in the right direction” because Mr Kwoyelo’s alleged victims demand retribution, says Sarah Kasande, with the non-profit International Centre for Transitional Justice (ICTJ) in Kampala, Uganda’s capital. International law rejects providing amnesty for war crimes and crimes against humanity, according to a July 2011 Human Rights Watch (HWR) report.

Ms Kasande lauds the Supreme Court for “harmonising” the Amnesty Act with Uganda’s international legal obligations. The court distinguished between crimes “in furtherance of the war” that could be forgiven under the

Amnesty Act and crimes that Uganda’s Geneva Conventions Act stipulates must be prosecuted, such as murder and rape.

“It is now clear that you cannot rape women and attack IDP camps and then say: ‘That is furthering a political cause,’” Ms Kasande says. “How do you link such horrendous acts to a political cause? That’s impunity.”

Amnesty still has a role to play in Uganda, Ms Kasande says, “but not as a shield against every crime”. The Supreme Court clarified that the state can choose amnesty or prosecution, depending on the individual LRA combatant in question, she adds.

Mr Kwoyelo’s lawyer acknowledges that LRA combatants were never automatically entitled to amnesty and that the public prosecutor retains the right to initiate legal proceedings. But Mr Opiyo claims the prosecutor is targeting his client to test the new International Crimes Division.“Kwoyelo was captured at the wrong time,” Mr Opiyo says. “The court was baying for blood and he happened to be around.”

This special court, funded by Western countries, was agreed upon during the 2006-08 peace talks between Uganda and the LRA. The LRA’s top leaders saw a dedicated Ugandan court as a way to circumvent the International Criminal Court (ICC) in The Hague, which issued arrest warrants for five LRA figures, including Joseph Kony and Dominic Ongwen, in 2005. The peace talks ultimately failed but Uganda pressed on with the new court.

Mr Kwoyelo’s prosecution coincides with the conflict’s changing terrain. By the time Mr Kwoyelo was charged, the Ugandan army had already pushed the

© Chris Shultz

Joseph Kony

17



As the number of LRA combatants decreases and the group’s threat to Uganda subsides, the Ugandan government is increasingly emphasising the rule of law.

LRA into the DRC, the Central African Republic (CAR) and southern Sudan. As of last year, an estimated 150 fighters were left roaming in the bush, according to LRA Crisis Tracker, an initiative of two American NGOs, The Resolve and Invisible Children.

As the number of LRA combatants decreases and the group’s threat to Uganda subsides, the Ugandan government is increasingly emphasising the rule of law, Ms Kasande and Mr Opiyo say. But ironically, this comes at the expense of individuals’ rights, Mr Opiyo says.

Ms Kasande warns that the Ugandan state must appear non-partisan and also charge and prosecute state actors who allegedly committed crimes during the LRA conflict. Government officials have suggested that the country’s military courts will try cases involving crimes committed by Ugandan forces, according to the HRW report referred to earlier. The government’s previous claims that it has disciplined army soldiers “do not meet Uganda’s obligations under national or

international law”, Ms Kasande says.Politics still prevails, sometimes, as

in the case of Caesar Acellam, a senior

LRA combatant who surrendered to the army in 2012. After the public prosecutor brought charges against him and a Kampala court issued an arrest warrant, Mr Acellam seemed set to become the second LRA figure to face trial after Mr Kwoyelo. But the army refused to hand him over. To this day, Mr Acellam works as an informant in northern Uganda, Ms Kasande says.

Mr Opiyo also accuses the state of “re-victimisation” and practising double standards by prosecuting Mr Kwoyelo for crimes he allegedly committed

0 5 10 15 20 25 30 35 40 45

1994

1995

1996

1997

1998

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2013

2014

LRA activityNumber of attacks

Source: Global Terrorism Database No data available for 1999

18



The irony is that the court was originally set up to prosecute LRA crimes, but it will probably hear very few cases related to this rebel group.

as an adult but failing to prevent Mr Kwoyelo’s kidnapping when he was 13. If the court accepts that Mr Kwoyelo was abducted as a child, his lawyer may ask the judges to use the kidnapping as a mitigating factor to reduce his sentence if he is convicted.

Mr Ongwen, a former top LRA leader, is reported to have surrendered in CAR in January, and was arrested on an ICC warrant for crimes against humanity and war crimes. He is currently being held by the ICC in The

Hague. A hearing to confirm his charges is scheduled for January 2016. A formal legal relationship does not exist between the ICC and Uganda’s ICD, but prosecutors from both courts have cooperated and shared information from their respective investigations, according to the HRW report.

Although Uganda’s new court could have requested the ICC to transfer Mr Ongwen’s case to Uganda, diplomatic sources, who requested anonymity, claim that Mr Ongwen may have qualified for amnesty, which the government would have found difficult to swallow.

The Kwoyelo case may have a negative impact on abductees who are still held by the LRA, warns Stephen

Oola, with the Refugee Law Project, a Ugandan human-rights group. Some may not attempt a risky escape from the bush out of fear that they will be prosecuted, he claims. At least 46 male Ugandan combatants defected or were captured since the initial start of Kwoyelo’s trial in 2011, according to LRA Crisis Tracker.

The irony is that the court was originally set up to prosecute LRA crimes, but it will probably hear very few cases related to this rebel group. Four of the five LRA leaders indicted by the ICC are either dead or captured, with only Mr Kony at large, Mr Oola says.

“The ICD is a court for everything, with nothing,” Mr Oola adds, meaning that the court was created for the LRA but has almost no LRA fighters to prosecute.


Senegal: universal jurisdictionCould an emerging legal principle for crimes against humanity make Dakar “The Hague of Africa”?

Cross-border justice Celeste Hicks

The trial of Hissène Habré, Chad’s former tyrannical ruler, has raised hopes that new systems of so-called hybrid justice can be developed.

The Extraordinary African Chambers (EAC), a new body estab-lished by the African Union (AU) within the current Senegalese court sys-tem, is hearing the Habré trial. It marks the first time that the courts of one African nation have tried the former leader of another African country, and the first time a universal jurisdiction case has proceeded in Africa. Af-ter an initial adjournment, Mr Habré’s trial recommenced in September.

Mr Habré, who ruled Chad from 1982 to 1990, is accused of war crimes, crimes against humanity and torture during his presidency. It is alleged that he personally presided over a network of secret police, known as the Directorate of Documentation and Security (DDS), which was responsible for the arrest, torture and disappearance of political and civil society op-ponents. A Chadian truth commission estimated that as many as 40,000 people were killed and many more tortured during his rule.

Mr Habré’s dramatic attempts to disrupt the process have twice over-shadowed the opening of the trial. In July he refused to speak to the presid-ing judge, dismissed his defence team and had to be carried out of court. When the case resumed on September 7th, Senegalese security agents wearing ski masks carried him to the bench and held him down while he shouted “Shut up!” at a court clerk who was reading out the names of his alleged victims.

Despite the theatrics, the presiding judge, Gberdao Gustave Kam, has re-established order. Having been adjourned in July for 42 days to allow a court-appointed defence team to prepare—Mr Habré refused to meet or speak to them—the case is now proceeding.


Cross-border justice

Nevertheless Mr Habré has now been forced to sit for weeks listening to the horrifying testimonies from former alleged victims, including ac-counts of “arbatatchar”—a stress position in which a detainee’s knees and elbows were tied behind their backs. In some cases, prisoners were forced to insert car exhaust pipes into their mouths while the engine was running. The court heard about Mr Habré’s alleged systematic attacks on the rebellious Hadjerai and Zaghawa ethnic groups. It saw his cold comments in an official communiqué about 152 prisoners of war: “No detainee shall leave this prison unless in case of death.”

In recent weeks testimo-nies from women who claim they were kidnapped and used as sexual slaves have been heard, as well as those from former detainees who spoke of watching fellow inmates die of disease or starvation, and then hav-ing to dig mass graves for their bodies.

The story of how Mr Habré finally came to face justice is long and complex. It owes much to the determination of a group of victims and their lawyers, including Souleymane Guengueng, Jacqueline Moudeina and Clément Abaifouta, who documented hundreds of abuse cases and fought tirelessly for 25 years to bring him to court.

A military coup led by his former defence minister and now Chad’s cur-rent president, Idriss Déby Itno, toppled Mr Habré in 1990. As his power base dissolved, Mr Habré emptied Chad’s meagre coffers and fled to Da-kar, Senegal’s capital, where he lived in an upmarket suburb.

Ten years later, victims’ groups succeeded in persuading a Senegalese judge to indict Mr Habré. But Senegal’s then president, Abdoulaye Wade, seemed unwilling to hang a fellow African leader out to dry and the indict-ment went nowhere. Several attempts by the AU and Economic Commu-nity of West African States to establish courts to try him followed in the 2000s, which also failed because of legal wrangling and disputes over who

© iLawyerHissène Habré



should pay the bill. Victims even filed a complaint in Belgium, which has universal jurisdiction, a legal concept which allows states to try persons accused of crimes against humanity regardless of where the alleged crimes were committed and regardless of the accused’s nationality.

But Senegal failed to respond to several extradition requests for the for-mer leader, until Macky Sall was elected the country’s new president in 2012; he promised to resolve the issue after the UN’s International Court of Justice reprimanded the country for failing to respect its internation-al obligations. A budget for the EAC was announced—$11m provided by Chad, the European Union, the AU and the Netherlands, among others. Finally, in July 2013 Senegalese police arrested Mr Habré and detained him in the Dakar jail opposite the court.

The case raises the question of whether this hybrid African justice model could offer an alternative to the International Criminal Court (ICC), based in The Hague. Many on the continent criticise the ICC and accuse it of bias for prosecuting only African tyrants who are extradited to Europe for trial. The EAC model has been praised for offering victims a more approachable system within a national court, and a way to repatriate their justice.

“This approach can provide for compliance with international law and standards while bringing the trials closer to the victims and strengthening the skills and confidence of the local judges and officials who will contin-ue in their national systems after the trials are completed,” said Stephen Rapp, former ambassador-at-large and head of the Office of Global Crimi-nal Justice in the US State Department, who has been following the trial.

Andrea Ori, a representative of the UN Office of the High Commis-sioner for Human Rights in west Africa, agrees. “This is finally combat-ting the culture of impunity, and it’s important that national courts are able to do this,” he said. “The AU took responsibility for this, it’s not a Western process.”

The case is also influencing many Chadians’ expectations of justice and the role it can play in improving governance. For many years the subject of Mr Habré elicited an often weary and pessimistic response from ordinary Chadians who had come to see impunity as a way of life. Although hopes were raised by Mr Habré’s arrest in 2013, it is only now that people seem to be taking an interest. Grants from the Open Society Initiative for West Africa totalling around $180,000 have allowed several Chadian journal-ists to travel to Dakar to cover the trial. The case is being filmed for the



historical record, although the Chadian government has reportedly not al-lowed it to be broadcast.

The case against Mr Habré has already had a profound impact on Chad-ian justice. In late March, a criminal court in N’Djamena, the capital, con-victed 20 of Mr Habré’s senior lieutenants of torture, according to Human Rights Watch (HRW), a New York-based monitoring group. The court sentenced Saleh Younous, the former head of the DDS, and Mahamat Dji-brine, considered one of Chad’s most feared torturers, to life imprison-ment. The court also ordered the government and the convicted persons to pay $125m in reparations to more than 7,000 victims.

This trial complicated the investigations in preparation for the EAC case because many of Mr Habré’s accomplices are now not able to appear beside him in Dakar given that they are already in prison in Chad. Nev-ertheless it gave an unprecedented boost to the rule of law in Chad, as many of these figures had been living openly without fear of arrest since Mr Habré’s downfall.

These developments show that the culture of impunity is finally being challenged, claims Reed Brody, counsel with HRW, which has been sup-porting the victims’ battle for justice for 16 years. “I think what scares the power structure about the trial is that it is Chadian civil society, an activist sector that the government is doing its best to contain, which has brought Habré to justice,” he said. “That in itself is very subversive to an authori-tarian system.”

Much remains to be done, however. The case needs to proceed, reach its conclusion and pass a respectable verdict without being derailed by Mr Habré’s vocal rejection of the court’s authority. The issue of whether the principle of universal jurisdiction can be used in the future may also prove problematic after the AU issued a strongly-worded communiqué about its potential “abuse” following the arrest of a Rwandan general in London in July 2015 on a warrant issued in Spain.

Although the initial signs are encouraging, any future attempts to cre-ate hybrid systems will need continent-wide political will to back them up, argues Alioune Tine, Amnesty International’s west Africa director: “The general issue of impunity is far from being resolved at the level of the AU as far as the political and military elite are concerned. But I do think that the Habré trial opens up a whole new era in the fight against impunity, which could take a concrete form in the future.”

23


Namibia: justice delayedDespite attempts at reform, Namibia’s courts are inefficient and deny litigants the right to a speedy trial

Dragging out the law Frederico Links

In September 2015, the Namibian High Court, in the country’s capital Windhoek, found Geoffrey Mwilima,

a former opposition parliamentarian, and 29 others guilty in the so-called Caprivi treason trial. The court convicted the accused of a range of offences, including high treason, murder and attempted murder. However, another 35 people were acquitted. The legal drama was “the longest criminal trial in Namibia’s history”, according to The Namibian, an online newspaper.

The verdict stemmed from an attack on August 2nd 1999 by members of a secessionist rebel group, the Caprivi Liberation Army, on a military base and police station in Namibia’s north-eastern Zambezi region, formerly known as the Caprivi region. Eleven people, including three policemen and three soldiers, were killed. The Namibian authorities arrested around 300 people on suspicion of participating in the attack, or of sympathising with it, and a few days later charged 132 of them.

Nico Horn, a professor of law at

the University of Namibia and former state advocate, was very critical of the Namibian judicial system’s handling of the trial. “A more intelligent way of prosecuting would have [kept] ringleaders together and those [presented] for minor crimes separate,” he said to a local news outlet in September. The people who had been acquitted had spent 16 years in prison and would likely want to sue the state, Professor Horn added.

From its beginning the trial got caught up in procedural issues. The High Court refused an application for bail by 53 of the defendants in September 2001. Another application for bail by two of the defendants was refused in December 2002. In June 2003 Albert Kawana, then (and again presently) justice minister, told parliament that the trial would take “between two or three years” to conclude.

He blamed the accused, “who decided to enforce their rights before the courts of law”, for the delay. International human-rights NGO Amnesty International (AI) questioned the “inordinate length of time” the state was taking to bring the accused to trial, citing its own “Fair Trials Manual” of 1998.

Then, in February 2004, Judge Elton Hoff in the High Court ruled that 13 of the defendants had been brought “irregularly” to trial, having been returned to Namibia without formal extradition procedures from Zambia and Botswana, where they had sought political asylum. Ten of the accused were convicted and sentenced in 2007, but the Supreme Court set

24

Dragging out the law


the convictions aside, judging that Namibian authorities had not followed formal extradition procedures.

Over the years the High Court had to free some of the accused from imprisonment for several reasons, including lack of evidence and the

deaths of witnesses. During the long years of the trial, some 22 people died in custody, according to official figures.

Arguments in the High Court trial finally closed in August 2014. By September 2015, when Judge Elton Hoff finally began handing down his judgment in the case, only 65 suspects

out of the original 300 remained in the dock. Arguments in mitigation were expected to take place in early October, according to The Namibian.

The slow pace of the Caprivi treason trial was not unique. In late 2008, the Law Society of Namibia (LSN), a body representing lawyers in the country, said that the large number of cases that were clogging the courts was having “a deleterious effect on the rule of law and human rights in Namibia”. Judges and magistrates who needlessly allowed cases to drag on should face misconduct charges, the LSN said.

Article 12 of Namibia’s constitution stipulates that every trial must be fair and conducted within “a reasonable time”, though it does not define the length of such a period. Namibia is a signatory to various regional, continental and international protocols and treaties that bind it to this legal principle, including the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights. These instruments do not specify time limits.

The High Court and the JSC have tried to accelerate justice by writing guidelines, which came into effect on December 1st 2009, and include prescriptions of the time it should take to deliver a judgement. A new case management system was also introduced, requiring judges to do their job properly. But other factors continued to bedevil the system, among them mismanagement by judicial officers and administrative staff, corruption, perennial understaffing and under-resourcing.

Poor police investigative work and a

© Werner Menges

Geoffrey Mwilima

25



lack of competence among prosecutors and magistrates have compounded these problems. Speaking at a workshop in February 2015, the prosecutor-general, Martha Imalwa suggested extending court working hours into the evenings and holding weekend courts to deal with the case backlog.

From May 2011 to November 2012, the High Court finalised an average of 58 cases per month, more than three times the average 17 cases a month it had adjudicated in 2010. In 2014 the High Court also introduced alternative dispute resolution or mediation as an option in civil matters to expedite cases and reduce legal costs. More than 500 court-accredited mediations were completed between June 2014 and March 2015, according to the High Court’s chief registrar, Elsie Schickerling.

In 2014, Hage Geingob, then Namibia’s prime minister and now president, pushed through a raft of constitutional amendments to make the justice system more efficient. Critics have accused Mr Geingob and the political party of which he is vice-president, the Swapo Party (formerly the South-West African People’s Organisation), of using their parliamentary majority to push through amendments to the constitution.

One of the proposed amendments includes the creation of an office independent of the justice ministry to administer the courts at all levels. A draft bill that would pave the way for the establishment of the Office of the Judiciary had yet to be tabled, Chief Justice Shivute told staff at the Keetmanshoop Magistrate’s office on

September 14th 2015.Yet cases still drag on. Namibia’s

ombudsman, John Walters, wrote to Judge Petrus Damaseb in mid-2015 to enquire about outstanding judgments that had been brought to his attention. In reply, the judge president, who presides over the country’s High Court,

said that all the matters in question would be finalised by late October 2015.

Systemic problems, such as overloaded dockets, continue to impair the High Court’s efficiency, according to Toni Hancox, director of the Legal Assistance Centre, a public interest law firm based in Windhoek. Judges are still taking too long to hand down judgments, even interlocutory ones that are intended to provide clarity on points of law, she says.

Meanwhile, few or no reforms have been successfully introduced at the lower court level. In June 2013, the ombudsman released a scathing report detailing a dismal scenario of long delays and bottlenecks.

Among others, the report mentions the case of Daniel Shakasha, who was being held in the Walvis Bay prison, and filed an appeal against his guilty verdict and imprisonment in September 2005 with the clerk of the court there. After receiving no response, he sought the

Judges are still taking too long to hand down judgments, even interlocutory ones that are intended to provide clarity on points of law.



assistance of the ombudsman, who sent the clerk a series of letters asking about the case, between November 2006 and November 2012. Even so, the clerk never filed the appeal.

On January 8th 2013, the Walvis Bay prison authority informed the ombudsman that Mr Shakasha had been released. “His right of appeal was frustrated by the individual failing of the clerk of the court to timeously prepare and file the appeal record with the registrar,” the report concluded.

In international terms, Namibia gets relatively high marks. It is ranked 53 out of 188 countries in the World Bank’s 2015 rule of law rankings. According to the 2015 Ibrahim Index of African Governance, the country was 4th in Africa for upholding the rule of law in 2014. Yet it would appear that the recent flurry of reform initiatives has so far had little effect on the slow pace of justice.

At the time of writing, the last stages

of the Caprivi treason trial had been yet again postponed, until March 30th 2016. If there is no further delay, it will have taken 17 years to conclude the trial. Mr Walters, the ombudsman, remains critical of “the unreasonable amount of time from arrest to the conclusion of a matter” in Namibia.

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Accountability rulesIbrahim index of African governance: rule of law, 2015Top ten, 100=best performance

Source: Mo Ibrahim Foundation

27


Sudan: playing the anti-Western cardOmar al-Bashir uses the ICC indictment to boost his ratings at home and abroad

Crime and politics James Copnall

The International Criminal Court (ICC) charges against Sudan’s president, Omar al-Bashir, have

shaped Sudanese domestic politics and the country’s external relations for more than half a decade—sometimes in very unexpected ways.

On March 4th 2009, Mr Bashir became the first sitting head of state to be indicted by the ICC. He was charged with five counts of crimes against humanity and two counts of war crimes allegedly committed in the civil war in Darfur, in western Sudan. The following year, the ICC issued another indictment, this time three counts of genocide committed against the Zaghawa, Fur and Masalit ethnic groups. Mr Bashir was accused of overseeing murder, extermination, forcible transfer, rape, torture, directing attacks against civilians and pillaging.

The indictments shocked Mr Bashir and his regime, but not the Darfuris, who have suffered through one of the worst conflicts of the 20th century, and blame the president for it. Even before

the indictments, the UN had estimated that 300,000 people had died and around 3m people had been displaced in the Darfur war—a number the government disputes.

Mr Bashir has made it clear he does not intend to ever travel to The Hague to face the charges, which he claims are a Western-backed plot to overthrow him. As soon as the announcement was made, huge rallies were held—with participants bussed in from the capital and nearby areas—to denounce this “imperialistic” assault on Sudanese sovereignty.

Indeed, to the surprise of many outsiders at least, Mr Bashir’s support grew visibly after the indictments. Giant posters of the president were stationed at major junctions in Khartoum, Omdurman and other large urban areas—a predictable response by the authorities. But ordinary people, especially in the Nile river valley area, Mr Bashir’s home and support base, began pasting pictures of the president on their cars’ rear bumpers and windscreens, a noticeable sign of affection.

Songs were invented, blasting the ICC prosecutor, Luis Moreno-Ocampo, and comparing him to the devil. The attempt to bring Mr Bashir before an international court shored up his support with a slice of the Sudanese public who saw the indictments as an attack on Sudan.

Mr Bashir and those around him made great use of this alleged assault on Sudan’s sovereignty. In almost every speech, the president used his verbally creative, yet often offensive style to criticise “foreign powers” looking to

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Crime and politics


overthrow “good” Muslims in Sudan. Mr Bashir is not the only Sudanese

facing charges: key allies including the long-time defence minister, Abderahim Hussein, and Ahmed Haroun, who became the governor of another war-torn area, South Kordofan, are also wanted by the ICC. Rather than keeping quiet about the indictments in the run-up to the 2010 elections, Mr Bashir’s team mentioned them at every turn. The charges even benefited the president, his campaign director, Ibrahim Ghandour, said in an interview: “The ICC was the first thing we campaigned on.”

By this point, two years after the first arrest warrant had been issued, Mr Bashir was obsessed with the ICC and its chief prosecutor. At the inauguration after Mr Bashir’s win in the 2010 polls (marred by serious flaws, and boycotted by many opposition parties), an entire page in the glossy brochure was dedicated to mocking Mr Moreno-Ocampo for his failure to bring down Mr

Bashir. None of this should suggest that

the attempt to drag Mr Bashir before international justice was entirely positive for him. Although he received an initial boost to his support in certain circles, the ICC indictments have profoundly damaged Mr Bashir and Sudan. Since they were issued, Mr Bashir’s only concern has been regime security, rather than development or ending the multiple conflicts in the country, accentuating a political dynamic that was already present in the country.

How could Mr Bashir act otherwise? If he were to leave power, willingly or not, and be replaced by someone hostile to him, the ICC would arrest him and he could face a life in prison.

The regime’s growing nervousness became apparent in September 2013 when fuel subsidies were removed and prices soared: protesters seized control of parts of Khartoum, Omdurman, Wad

Visited once then barred

States visited party to the ICC

Visited by Omar al-Bashir

Visited more then once

Al-Bashir jet-sets from indictment

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Crime and politics


Medani and other cities. The response, even in Mr Bashir’s heartland, was ruthless: human-rights groups say as many as 200 unarmed protesters were killed. Such violence is unexceptional in the war zones on the country’s geographical periphery; but almost unheard of in the capital.

The ICC’s indictment worsened Sudan’s long-running governance fiasco: a central government unwilling or unable to provide development and share power fairly in a diverse, multi-ethnic state. The president simply concentrated all power in his hands or those of his close allies, such as Mr Hussein, and, lately, Bakri Hassan Salih, an old military companion who was made first vice-president in December 2013.

Just before the April 2015 polls, Mr Bashir had the law changed so he could appoint the previously elected governors. This concentrated power even more in Khartoum despite the vital need to amplify regional voices in government.

Mr Bashir’s indictment has also profoundly affected Sudan’s foreign relations. In the years since the arrest warrant was issued, Sudan has searched desperately for viable allies around the world who have been defined by one question: will you let Mr Bashir travel to your country without arresting him and sending him to the ICC?

So far, the president has visited several African and Arab countries, as well as Iran and China, among others. There have been some near misses. In November 2011, a Kenyan court responding to a suit filed by the Kenya chapter of the International Commission of Jurists ordered the Sudanese president’s arrest should he set foot in the country in the future. However, when Sudan reacted by ordering the return of its ambassador to Nairobi and expelling the Kenyan ambassador from Khartoum, the Kenyan foreign minister flew to Sudan’s capital to apologise profusely.

In July 2013 Mr Bashir left Nigeria in a hurry, fearing arrest. In June,

© Defense Imagery

Al-Bashir in Addis Ababa, Ethiopia, 2009

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Crime and politics


while the Sudanese head of state was attending an African Union (AU) summit in Johannesburg, a South African court ruled that he should be handed over to the ICC—only for him to leave precipitously, presumably with the support of his South African counterpart.

Just as Mr Bashir was able to boost his popularity in some Sudanese quarters by cleverly playing the anti-neo-colonialist card, he has played this game with many African and Arab countries, which have rallied behind him. The Arab League condemned the charges. The AU complains that the ICC is biased because all of its present indictments are against Africans. The union went a step further and passed a resolution in 2013 saying the ICC should not prosecute sitting heads of state.

This is self-interest at play: Mr Bashir is not the only African leader accused of committing atrocities at home. The ICC has also indicted Kenya’s president, Uhuru Kenyatta (although charges were withdrawn in December 2014 because of the government’s lack of cooperation) and vice-president, William Ruto.

Yet despite African leaders’ hostility to the ICC, “continental sympathy and support for Bashir would not run deep” if he were arrested, says Alex de Waal, the Sudan expert at Tufts University near Boston.

The ICC charges have also affected Sudan’s relations with Western countries. Even before his indictment, most Western countries disliked Mr Bashir’s regime, in part because of decades of conflict, not just in Darfur, but in southern, eastern and central

Sudan too. In turn, Mr Bashir and his supporters have blamed the West for backing rebel groups.

The ICC indictments—and Mr Bashir’s refusal to face trial—solidified this mutual animosity. This goes far beyond feelings. There is little chance of the US removing economic sanctions as long as the ICC-indicted Bashir is president. Sudan has little hope of getting out from under its debt burden—more than $45 billion according to the IMF—as long as Mr Bashir remains in charge.

The ICC indictments have forced Mr Bashir onto the defensive, cracking down on any perceived threat, while scanning the horizon for friendly foreign faces. What they have not brought, more than six years after the first arrest warrant was issued, is justice for Darfur’s countless victims.

31


Eritrea: dictatorship and terrorThe absence of law has extinguished all justice in this east African country

Rule by fear Richard Poplak

Eritrea is a paradox, a country that dips vertiginously from the mountains into the sea,

from mellow temperate Asmara, the capital, to the scorching coastal port of Massawa.

On the capital’s boulevards, fashionistas rock Afros and skinny jeans while espresso machines roar in the cafés. Asmara is a modernist wonderland. But behind these tired, beautiful buildings lurks a secret, shadow world. And one does not have to amble too far down the capital’s Harnet Avenue to find its locus.

Eritrea’s Ministry of Justice, an imposing sunset-yellow structure on Asmara’s main boulevard, is one of many exemplary structures of rationalist architecture built by the Italians throughout the capital during the colonial period. Originally the offices of the department of economic affairs, it became the High Court during the British administration of the 1940s. In 1950, when Eritrea was unhappily placed under the care of Ethiopia by a disputed UN resolution, the distant court in Addis Ababa oversaw the justice ministry, first under Haile Selassie, the Ethiopian emperor, and then his

communist successor, Mengistu Haile Mariam.

In 1993, when the country’s independence was formally declared, Eritreans began administering their own courts for the first time. It should have marked a new era of Eritrean rule of law. In practice, it has been the opposite.

Eritrea is perhaps Africa’s least-known and most insular state, scarred with a tragic history. In the 20th century three successive colonial regimes ran the country with disdain and violence. A 30-year war for independence followed, leaving Eritrea desperately poor and underdeveloped. While Asmara is perhaps the most intact colonial city on the planet, the rest of the country is in a state of deplorable disrepair. Instead of reaching out after winning independence in 1991, President Isaias Afwerki used his coming-out speech at the United Nations to berate the outside world for its manifold betrayals.

“I cannot help but remember the appeals that we sent year in and out to this assembly and the member countries of the United Nations describing the plight of our people,” he began. “We appealed to the UN not only in its capacity as a representative of the international community, but also because of its special responsibility to Eritrea. For it was the UN that decided in 1950, at the beginning of the Cold War, to deny the colonised people of Eritrea their right to self-determination, thereby sacrificing their national and human rights on the altar of the strategic interest of the superpowers.”

And so Mr Afwerki locked the gates, and the country slowly stultified.

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Rule by fear


The 1997 constitution never became law; none of its lofty clauses were implemented. Opposition parties were banned, dissidents were either jailed or disappeared. The country pursued a disastrous border flap with Ethiopia from 1998 to 2000, and has maintained a war footing ever since. Compulsory military service can drag on for decades; conscripts have complained that they are effectively enslaved and forced to work on infrastructure and mining projects for less than a living wage.

Meanwhile, Mr Afwerki has wiped out anything resembling an independent press. Internet connections (when they exist) seem to date back to the Jurassic age. Who watches the watchmen? There is no need to ask this question. The president’s comprehensive spy network is tracking everyone. Brother spies on brother.

It is therefore no surprise that Eritreans have been protesting with

their feet. Over 400,000 citizens have fled the regime since independence—a figure that amounts to nearly 8% of its 5.1m population, according to the UN High Commissioner for Refugees. Three thousand Eritreans leave every month, across the scorching border with Sudan, contributing massively to the refugee crisis currently bedevilling European shores.

What place can justice have in such a milieu? The UN Human Rights Council asked a similar question, and in June 2014 established a commission to look into Eritrea’s human rights. The compilers of the commission’s report note in the report’s preamble that they were unable to visit the country, and relied exclusively on over 500 interviews and 160 written testimonials from Eritreans in the diaspora. And while a few espressos in Asmara’s pleasant cafés might have taken the edge off the report’s unrelenting grimness, there is not much call for levity.

“The government has created and sustained repressive systems to control, silence and isolate individuals in the country, depriving them of their fundamental freedoms,” says the commission’s report. “Information collected on people’s activities, their supposed intentions and even conjectured thoughts are used to rule through fear in a country where individuals are routinely arbitrarily arrested and detained, tortured, disappeared or extra-judicially executed.

The problems with the country’s justice system could be described as ontological: a judge’s career, according to the commission, begins at the defence

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The grass is greener anywhere elseTop 5 destinations for Eritrean migrants in 2013‘000s

Sources: United Nations Population Division; Eurostat

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Rule by fear


ministry. Judges at the community court level may be elected, but anyone on the High Court bench in Asmara is likely a conscript—often paid less than $2 a day—and therefore under military control and, in turn, under the president’s thumb. As a second firewall against anything resembling judicial independence, the justice ministry functions under the aegis of the president’s office. A special military tribunal funnels judgments through the armed forces’ pipeline, and works as the de facto highest court in the land.

If there was a breaking point, it must have been when Mr Afwerki cracked down on all criticism and dissent in August 2001. Security forces arrested 11 leaders from within the government who had dared to question the president’s record. Most notably, he removed Teame Beyene, who had served as the High Court’s chief justice since 1994. His sacking was all but inevitable after he called for the cessation of the special tribunal and complained about the executive branch’s pervasive interference in judicial proceedings. “With the arbitrary dismissal of Judge Teame Beyene in August 2001, the Eritrean judicial system has sustained irreparable damage, particularly as regards to major function of safeguarding fundamental rights and freedoms, as well as restraining government’s authority,” a group of legal professionals noted to the commission.

Judge Teame’s dismissal left a vast gap, most of which was filled with Mr Afwerki’s home-grown brand of authoritarianism. Judges who believed themselves to be independent were

quickly disabused of that notion, and were either directly or indirectly threatened if they did not join the ruling party. As one ex-judge noted to the commission: “I always had to carry a mobility paper to move from any place to another within the city or to other cities, and have been subjected to threats and intimidation by patrolling military police on many occasions. There was even a time I was severely beaten up by plainclothes soldiers (military police)…Following the beating, I had attempted to report the incident to their military station, which was located in Asmara, but was met with further threats and intimidation. I never felt safe in Eritrea.”

Prominent military officers often become involved in cases before the regional and high courts, and demand rulings that suit them either politically or economically. “Investigators, security officers and military leaders also act as de facto magistrates,” the commission’s report said.

The blending of the security state and the judiciary has become a waking nightmare for Eritreans. The (mostly) Muslim Afar ethnic group are routinely targeted in military-sanctioned campaigns of violence. Judgments are often made based on investigative reports, some of which are ballasted by statements obtained under torture. No Eritrean public official has ever been prosecuted for a human rights violation. The country’s courts are run by the powerful, for the powerful, and the state’s most vulnerable citizens bear the brunt of this uneven arrangement.

“Virtually everyone in Eritrea runs the risk of being arbitrarily arrested and

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© Richard Poplak

detained: men and women, children and elders, political opponents and supporters of the regime, religious believers and atheists, high-ranking officials and ordinary citizens,” notes the commission. When this happens, there is absolutely no due process available to the detainee. Like a scene out of the Steven Spielberg sci-fi thriller “Minority Report”, it is possible to be arrested if an official or spy believes one’s thoughts to contain ill intent. No court order is necessary to detain a suspected dissident; there is no legal time limit on the length of arbitrary detention.

“I could take a person and put him in prison for ten days without any

reason,” a former security officer told the commission. “I do not need to go to a judge at all...or for instance, if I suspected the person is a military [person] and has fake documents, I can decide what to do, detain him, interrogate him, release him or keep him in detention. The National Security Office is the only office we report to. We just need to inform them.”

The prisons are filled with nameless, numberless detainees. The attorney general’s office is by law empowered to oversee the police’s investigatory practices in the prison system, and despite much hostility, judges have made surprise spot-check visits. But judge after judge has found that the police have no power over those in their prisons, and they routinely abrogate responsibility to the security services.

As the testimony of many exiled Eritreans makes clear, the state is firmly in the hands of the president and his security forces, with no checks and balances available from the judiciary. The High Court buildings on Harnet Avenue remain something of a front, a cover for the paranoid regime that works through the last of its peoples’ resolve. Until the state relinquishes some power and reintroduces a constitutionally protected rule of law, the Eritrean tragedy will not cease.

The facade of justice — the Eritrean High Court

35


Egypt: worse than before?Critics say the government’s new anti-terrorism and election laws amount to another repressive regime

The pharaoh’s new clothes Karine G. Barzegar

Since president Abdel-Fattah al-Sisi took power in Egypt in May 2014, critics have accused him of using

the law and the courts to criminalise opposition to his regime. They say he is taking extreme measures to grant himself powers similar to those held by former ruler Hosni Mubarak during the 30-year-long state of emergency that marked his rule.

On August 16th 2015, Mr Sisi approved an “anti-terrorism law” setting up special courts empowered to impose the death penalty on anyone found guilty of establishing or leading a terrorist group. The new law allows the trials of suspected terrorists to be fast-tracked through the special courts. It includes heavy sentences for anyone found guilty of financing a terrorist group, as well as anyone deemed to have joined a terrorist group, incited violence or created a website publicising terrorist messages.

Mr Sisi says the new law is necessary to the state’s efforts to contain Islamist and jihadi groups that carry out attacks

and assassinations on Egyptian soil. “The hand of justice is shackled by the law,” he said on June 30th in Cairo at the funeral of the country’s prosecutor general, Hisham Barakat, killed in a car bomb attack in the Egyptian capital the day before. He added that the law would be amended as soon as possible to allow the Egyptian state “to implement justice”.

Mr Barakat had been involved in the prosecutions of many figures belonging to the Muslim Brotherhood, an Islamist organisation. Earlier in 2015, Mr Sisi blamed the group for bombings in the country’s Sinai desert.

The new law, which consists of no fewer than 55 articles, defines a “terrorist act” as “the use of force, violence [or] threats” with the aim of “disturbing public order”, “harming national unity”, “damaging the environment, natural resources, monuments, public and private entities”, or “obstructing the work of public institutions, local councils, diplomatic missions, and places of worship from carrying out their work whether wholly or partially”.

But critics say this view of terrorism is too broad. “Almost anybody can be a terrorist...under [this] definition,” says Frances Shealy-Salinié, Egypt coordinator for Amnesty International (AI) in France.

In 2014, on the third anniversary of the January 25th Revolution, for instance, 19-year old Mahmoud Mohamed Hussein happened to be wearing a T-shirt with the slogan “A nation without torture” on it. He was arrested on his way home from a protest against both military rule and

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the Muslim Brotherhood in downtown Cairo. Some 600 days later, the 19-year-old student is still being held and has yet to be charged or tried for any offence. According to a letter written by his brother Tarek, posted on AI’s website on June 12th 2015, he was beaten and given “electric shocks to the face, back, hands and testicles” in an effort to extract a confession to having links with the Muslim Brotherhood.

Cases like Hussein’s are legion. The Egyptian authorities have detained some 40,000 people since Mr Sisi came to power, both AI and Human Rights Watch (HRW) say. Many of the detainees are being held in administrative detention while they await trial, which could take months, the human rights organisations add. In one case, an Irish-Egyptian teenager, Ibrahim Halawa has been held in an Egyptian prison since August 2013, when he was arrested along with

hundreds of others at a protest at the Al-Fath mosque in Cairo. AI Ireland severely criticised the “lack of due process in Egypt”.

“There are a lot of innocent people in [Egypt’s] prisons,” an Egyptian judge told Africa in Fact, speaking on condition of anonymity. “But people say in the end we are fighting terrorism, so when you’re fighting terrorism, these things happen.”

Most of the people arrested are charged with belonging to the banned Muslim Brotherhood group. According to a local newspaper, Daily News Egypt, some 3,977 people were arrested in the first five months of 2015 on charges of belonging to the Brotherhood.

Other groups are also being targeted by the courts. In April 2014, the Court of Urgent Matters in Cairo ordered the banning of the activities of April 6 Youth Movement over espionage claims. The movement, a civil society activist

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group that played a key role in the 2011 uprising against former president Hosni Mubarak’s regime, is now facing a criminal lawsuit that calls for it to be labelled a “terrorist organisation”.

The new law also affects the media. Journalists face a minimum fine of 200,000 Egyptian pounds (about $25,000) and a maximum of 500,000 Egyptian pounds (about $64,000) if found guilty of “intentionally publish[ing] false news about terrorist crimes that are different from official statements”, for instance.

At least 18 journalists are currently being held in relation to their reporting in the country, the Committee to Protect Journalists (CPJ), a New York-based NGO that works to promote press freedom worldwide, says on its website. This is the highest number of journalists to be detained in the country since the CPJ began recording data on imprisoned journalists in 1990, according to the organisation.

Media outlets such as Al Jazeera and the Turkish Anadolu news agency have been banned from operating or forced to close their offices. In July, the Egyptian Journalist Syndicate issued a statement saying that the new law was “contrary to the constitution” and that it was aimed at diminishing “the freedom of the press”.

On September 23rd, Mr Sisi pardoned 100 prisoners, including three Al Jazeera television journalists, on the day of the Muslim feast Eid Al-Adha, just before heading to the 70th session of the UN General Assembly of world leaders. The pardons, reported both by security sources and Egyptian media, included prisoners who had violated a

2013 law banning protests without a permit, including those with medical conditions and the elderly.

The new anti-terrorism law also assigns certain judicial powers to the office of public prosecution. Under article 41, for example, public prosecutors investigating “terrorism” offences have the authority of investigating judges, which empowers them to order the pre-trial detention of individuals for an initial period of 15 days, which can be renewed for up to 45 days. They are also vested with the authority of a misdemeanour court of appeals, which can renew pre-trial detentions for even longer periods.

It is an open question whether the judiciary can maintain its independence in the face of the new law. “The judicial system is…getting more centralised, more oriented by the politics of the executive,” according to the judge referred to earlier. “Under Mubarak, there was kind of a movement asking for independence, and this movement is dead. It ended because the massive amount of politics involved in the judiciary is one of [our] problems.”

Mr Sisi’s critics agree in likening his regime to that of former dictator Hosni Mubarak. “In some cases, the [new anti-terrorism] law…is worse than the old one,” says Joe Stork, a deputy director of the Middle East and Africa division of Human Rights Watch.

Mr Stork also points to an apparent lack of policing accountability. At least 1,400 people, many of them supporters of Mr Morsi, were killed in a crackdown on protests after his overthrow. Though official statistics are not available, very few police officers and soldiers

38



© Mona

have been tried for their role in the repression of the protests or for later arrests.

The anti-terrorism law is not the only potentially repressive piece of legislation passed by the Egyptian president this summer. Egypt has had no parliament since June 2012, when a court dissolved the democratically elected chamber. In its absence, Mr Sisi holds legislative authority. And since his election in May 2014, in little more than a year, he has passed dozens of laws by decree, including new election laws.

In July 2015, he signed an amended law that re-defined the country’s voting districts, making way for parliamentary elections, which will lead to the country’s first legislature since the Muslim Brotherhood-dominated parliament was dissolved in 2012. An earlier version of the law was declared unconstitutional by Egypt’s Supreme Court on the grounds that it did not guarantee equal representation for voters. Critics of the new law say it favours individual candidates, rather than a system of proportional representation and party lists. They fear

it will give victory to people or parties competing to provide support for Mr Sisi.

New parties that have emerged from the popular revolution against former President Hosni Mubarak in early 2011 say they have limited or no financial resources, according to Khaled Dawoud, spokesperson of the Al-Dostour (Constitution) Party. “They complained that they cannot compete in the elections if 80% of parliament’s seats are to be contested by individuals, most of whom can spend money heavily or have strong tribal and family ties, particularly in rural provinces and southern Egypt,” he says in a paper published by the Carnegie Endowment Fund for International Peace, a foreign-policy think-tank.

The combination of the new anti-terrorism law with the new electoral districts law will strongly reduce the likelihood of free elections, political groups and human rights organisations say. “If you can’t stage a peaceful public protest, if you can’t have freedom of assembly, it’s very difficult to have free elections,” says Mr Stork.

Laws against assembly were used during the presidential polls that saw Mr Sisi elected as well as during the referendum on the new constitution to prevent opponents of the new president from mobilising, he adds.

“Just opening your mouth to say something fairly innocuous could result in you facing the death penalty or imprisonment,” says Ms Shealy-Salinié. “In 2011 people went onto the streets to ask for bread, justice and liberty. But they haven’t gotten any of those things, have they?”

“Down with Mubarak”

39


Tunisia: transitional justiceA new truth commission to deal with past abuses struggles to retain its role in investigating corruption

Forgive and forget? Eileen Byrne

Tunisia’s “transitional justice” process, which was set in motion in late 2013 after the

2011 revolution that overthrew the regime of Zine el-Abidine Ben Ali, has been bedevilled by problems from its inception.

A lack of precision in the law that launched the process, as well as public disagreements among members of a new truth commission, have confused the country. Moreover, a controversial bill drafted in July 2015 by the office of Tunisia’s current president, Beji Caid Sebsi, which sought to remove all corruption cases from the ambit of the truth commission’s investigations, has caused a political storm.

Tunisia’s constituent assembly approved a transitional justice law in December 2013, creating a Truth and Dignity Commission (TDC). Proposed by the Islamist-led coalition government, the law tasked the TDC with investigating all “serious or organised” human rights violations that occurred between July

1955, shortly before independence from France, and December 2013. Secondly, the commission was to make recommendations for reform. Victims would receive reparations, either financial or social (such as being given access to employment previously denied).

The law also empowered the TDC to identify any officials still in place who had been responsible for human rights violations, and gave it the power to dismiss them. However it emphasised a need for “reconciliation” aimed at “establish[ing] citizens’ confidence in state institutions”. The TDC’s 15 members were to include rights activists, legal experts and representatives of relevant specialisations, including archivists and physicians.

Although the main focus was on individual victims who had suffered under a repressive state, the aim of the TDC was also to uncover cases of “financial corruption and the embezzlement of public funds” that had occurred during the period under review. Serious cases of human rights abuses (such as homicide, torture and rape cases) and cases of corruption and electoral fraud could be handed over to the judicial system by the commission. They would then be heard by specially created panels of judges attached to Tunisia’s existing criminal courts.

However, the TDC’s ability to fulfil its mandate was jeopardised by political infighting. In June 2014, Sihem Bensedrine, a former journalist with a strong track record of dissent under Mr Ben Ali, was appointed TDC president after its first chair resigned—officially

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Forgive and forget?


due to ill health, but more likely because of internal disputes. Squabbles within the TDC peaked in August 2015, leading to more resignations and an unsuccessful move to dismiss Mrs Bensedrine’s deputy, Zouheir Makhlouf, after he alleged financial malpractice within the TDC.

Confronted with a wide range of abuses and corruption, the TDC has had a heavy workload.

Some Tunisians seeking redress from the TDC are surviving followers of Salah Ben Youssef, a rival nationalist leader to Habib Bourguiba, Tunisia’s first post-independence president. Others presenting their cases to the TDC are from a later generation of Tunisians espousing leftist ideologies who had faced imprisonment and torture.

Then, from 1987, under Bourguiba’s successor, Zine al-Abidine Ben Ali, members of an Islamist movement that later renamed itself Nahda (“Awakening”) bore the brunt of the

security services’ violence. In the later years of Mr Ben Ali’s rule, rackets run by his in-laws, the Trabelsis, reportedly plundered ever-wider areas of the economy. Civil servants were drawn into their web of unscrupulous dealings—if only, in some cases, by turning a blind eye.

TDC members have begun closed-door hearings of some individual victims. By June 2015, 13,000 people had presented their cases for consideration. Public hearings of certain cases, selected as illustrations of the wider phenomenon of repression, are to follow, Mrs Bensedrine said in May.

Victims and perpetrators will give evidence in these televised hearings. Even the most egregious rights abusers may be allowed to testify and thus avoid having their cases referred to the courts, she said. But the 2013 law provides only an outline of procedures to be followed, and appears to have left considerable latitude to the TDC on this and other points.

As an assertive woman in a male-dominated political establishment, Mrs Bensedrine has many detractors. Members of a parliament dominated by Nidaa Tounes (‘Tunisian Call’), the centrist party founded by Mr Caid Sebsi, are among her most vocal critics. The party also draws some support from former members of Mr Ben Ali’s dissolved ruling party, the Constitutional Democratic Rally. Many in the ranks of Nidaa Tounes regard Mrs Bensedrine as likely to favour Islamist victims’ stories over those of leftists. The TDC has been at pains to dispel this idea.

The tensions erupted into a full-scale © fhimt.com

Sihem Bensedrine

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Forgive and forget?


Campaigners argued that the bill represented an attempt by members of the political elite to accord special treatment to cronies.

political storm in July over a proposed new law drafted by the president’s office. Mr Caid Sebsi’s bill on economic reconciliation seeks to remove all cases of corruption from the TDC’s area of responsibility. Critics say it is aimed at drastically undercutting the TDC’s jurisdiction.

If approved, the law would see cases of financial misdemeanour handed over to a new, slimmer six-member arbitration panel. Like the TDC’s arbitration commission, this panel would receive applications from business people and senior civil servants offering to provide full details of past corruption and to make appropriate refunds. Mr Caid Sebsi argues that a more “streamlined process” would encourage business people who are under suspicion to continue making job-generating investments with confidence. For instance, banks would be more likely to lend them money if they did not feel deterred by the possibility of subsequent confiscations of their clients’ businesses or profits.

The preamble to the bill establishes that all officials would be eligible for amnesty for “acts linked to financial corruption…as long as these acts were not intended to secure personal advantage”. Ongoing court cases and penalties imposed for “acts connected with financial corruption or the undermining of public finances” by “civil servants or similar” would be halted. A fast-track three-month “reconciliation process” would allow those who profited personally to agree with the six-member panel on how much money they should repay.

The panel would also include

two TDC members. The other four would be government or civil service representatives: one each from the prime minister’s office, the justice and finance ministries and the ministry handling state assets.

Even given public acceptance of this measure, the TDC’s remaining workload would be substantial. It would still be responsible for the initial investigation of human rights abuses large and small, as well as appropriate settlements for them. Cases of denial of rights to personal liberty, freedom of expression, public assembly, a private life, or employment, as well as far more serious

rights abuses, would still remain within the TDC’s remit.

However, by September, the president’s draft law had prompted street protests and a social media campaign under the slogan, Manich Msameh (“We do not pardon” in Tunisian Arabic). Campaigners argued that the bill represented an attempt by members of the political elite—and Mr Caid Sebsi is a member of the political and social elite par excellence—to accord special treatment to cronies.

The draft economic reconciliation law was sent to parliament for debate in September. With Nidaa Tounes controlling a majority bloc in the legislature, but with small leftist

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Forgive and forget?


The high-profile award is a signal that Tunisia should continue to strive for compromise and dialogue.

opposition parties and the centrist Joumhouri (“Republican”) party still vociferously opposed, a lively debate was expected.

The Nahda Islamists are junior members of the ruling coalition, with one minister and three junior ministers in the cabinet. Crucially, the party has moderated its initially heavy criticism of the bill. It had said that the bill was a presidential initiative, and lacked the democratic credentials of the 2013 law, which was drafted by an elected parliament after wide-ranging discussions with civil society. Then it suggested that the bill could be acceptable, with some amendments.

In October, Samir Dilou, a senior

Nahda member, said that his party would propose amendments clarifying the legal criteria for granting amnesties, for example. A lawyer and former political prisoner, Mr Dilou was a member of the Nahda-led coalition government in 2012-13 that laid the groundwork for transitional justice.

Meanwhile, amid the heated discussion about the proposed bill, on October 9th the Swedish Academy in Stockholm announced that the Nobel Peace Prize for 2015 had been awarded to a four-member Tunisian group of civil society representatives who helped defuse a political stand-off in 2013.

The high-profile award, which drew

extensive international media coverage, was interpreted by many, both inside and outside the country, as a signal that Tunisia should continue to strive for compromise and dialogue. It increases the likelihood that some compromise will eventually be found on the economic reconciliation bill, even if this is likely to take time.

Also in October, the TDC received an answer to its request for the opinion of the Venice Commission, the Council of Europe’s panel of constitutional experts, on whether the proposed law conformed with Tunisia’s new constitution of 2014, which says the state has an obligation to “apply the system of transitional justice”. On October 24th the commission indicated that the proposed law was unsatisfactory on a number of points.

If the original 2013 law setting up the TDC needed improvement, “especially in the economic and financial fields”, it would fall to Tunisia’s parliament to draft any revised legislation, the commission said. This should be done in co-operation with civil society and other relevant bodies, “especially the TDC”, it added.

The constitutional experts in Venice thus put the ball firmly back in parliament’s court. Controversy and debate looked set to continue well into 2016, even as the TDC in Tunis, and the four regional offices it had opened by late 2015, continued with the work of taking evidence from individual victims.


Mozambique’s gender-based violence laws Several laws address rape and domestic violence, but their enforce-ment is shaky

Rape and justiceMercedes Sayagues

One night in April 2013, Luisa, a 46-year-old woman living in a small town in Mozambique, was on her way home when two men dragged her into an abandoned hut and raped her. “I wanted to

die, but I told myself I must survive for my daughters,” said Luisa.After the ordeal in Boane, about 40km west of Maputo, Mozambique’s

capital, Luisa (who asked that her real name not be used) checked on her teen daughters, and then went with a neighbour to the police station. The officers there did not follow protocol: they did not tell her not to wash be-fore proceeding to hospital; nor did they inform her that she should keep her torn and dirtied clothes to preserve any DNA evidence that might be on them.

Luisa then went to Boane’s district hospital. But the nurse there told her to return the following morning at 7am. The nurse was “not familiar” with post-exposure prophylaxis (PEP), Luisa recalls. (PEP is medicine that helps to prevent HIV infection of a person after potential exposure to the virus; HIV, if untreated, causes AIDS.)

But when Luisa returned the following morning, another nurse told her to sit on the floor of the maternity ward and wait. She waited about four hours. The attending doctor later said she had forgotten about her, Luisa recalls.

About noon that day, Luisa, a manicurist, finally got through to a doc-tor who was one of her clients. The doctor knew the hospital director and called him. Soon Luisa had been assigned a hospital bed and dosed with emergency contraception and PEP. Meanwhile, back in Boane, neighbours caught one of the suspects and took him to the police, but he was soon released. Luisa recalled that he had bragged, during the assault, about


Rape and justice

“knowing cops”.Luisa is one of countless victims of sexual violence who are not protect-

ed because Mozambique’s police, doctors and the judiciary are slack in ap-plying the law and procedures. A third of Mozambican women between the ages of 15 and 49 had suffered physical violence after the age of 15, accord-ing to a 2011 demographic and health survey (DHS). Some 12% of women in the same age range reported having suffered sexual violence, while a quarter reported suffering some kind of violence in the previus year.

Police recorded 23,660 complaints of violence in 2014, including 350 relating to suspected rapes of minors under the age of 12. But many cases go unreported, and reliable statistics do not exist on how many cases make it to the courts.

Several laws and policies address gender violence in Mozambique, in-cluding a 2009 law on domestic violence and a new penal code that came into force in June. This new code swept away laws dating from Portuguese colonial days. For instance, under the former penal code dating back to 1886, charges against a suspected rapist of an underage girl could be dropped if he married her. This provision no longer exists. In addition, forced anal penetration is now classed as rape, and a former provision as-signing a harsher sentence to the rape of a virgin has been removed.

In addition, police say they opened 273 units with staff trained to deal with victims of domestic violence at police stations throughout the coun-try. Over the last decade, Women and Law in Southern Africa/Mozam-bique (WLSA), an NGO that conducts research into women’s rights in seven southern African countries, says it has educated 700 police and 200 magistrates on gender violence.

Yet many problems remain. The police’s domestic violence units are only staffed from Monday to Friday until 3.15pm, though most violence occurs at night or over the weekend. Trained police staff are frequently as-signed outside these units to perform other jobs, says WLSA coordinator Terezinha da Silva. Some police officers, says Ms da Silva, also share patri-archal values and advise women to “sort it out” within the family, she says, effectively protecting aggressors and re-victimising women.

Mozambican courts are also slow and overburdened. A 2010 study by Professor Claes Sandgren of Stockholm University concluded that short-ages of human resources, infrastructure and equipment were crippling Mozambique’s justice system. There was little coordination among judicial


Rape and justice

institutions and too little funding, according to the study. The system was “nei-ther efficient nor transpar-ent”, the study said.

But the problems go fur-ther. “Our judicial system is sick with corruption and neg-ligence,” says sociologist Rafa Valente Machava, executive director of Women, Law and Development (MULEIDE), a women’s rights group. “Per-petrators enjoy impunity; laws are ignored. Justice is for the elites; ordinary folks cannot afford it.”

By law, all health facili-ties are required to have rape kits and staff who are trained to use them. In practice, these kits are available only at hospitals and large clinics, says Estrella Alcalde, who manages a gender violence project in Mozambique’s Southern Gaza and Inhambane provinces for Pathfinder International, a US-based NGO.

A 2011 Pathfinder survey in Gaza province asked women who they would seek help from in cases of violence. Some 78% said they would seek support from family; 33% said they would approach community leaders; and 25% that they would go to the police. Only 2% said they would report to the health services. Women avoid the health services for a number of reasons, including fear of being blamed for the violence inflicted on them, or of discrimination for reporting their case. They may also be ashamed of what has happened to them, or simply ignorant of the options available, according to the survey.

Cases of suspected sexual violence recorded by police are not auto-matically referred to the courts as required by the new law, according to Ms Osório. Meanwhile, hospitals cite confidentiality and do not provide

© Mercedes Sayagues

“Rape is a monstrous crime”


Rape and justice

information on victims, even if they are only asked for numbers. Many complaints relating to suspected sexual violence never make

it into court or are simply dropped, she says. Rural Mozambicans often resort to traditional authorities and community tribunals to settle their problems, bypassing state institutions, she adds.

“Community leaders are our Achilles’ heel,” agrees Pathfinder’s Ms Alcalde. “They are guardians of tradition and patriarchal norms. [They] perceive the new laws as a challenge to their authority.” However, some leaders are now referring victims to police, she adds.

High illiteracy among women and low levels of education among girls are reported by the DHS, and these are other factors undermining law en-forcement. Media campaigns are not very effective because nearly half of women in Mozambique do not have access to any media.

Sheer distance from police stations and courts, as well as transport costs to towns can deter rape victims from reporting assaults, according to Berta Chilundo, a former president of MULEIDE. Meanwhile, many people do not trust the judiciary, Ms Chilundo argues in a 2013 paper on WLSA’s website.

Gender-related attitudes and cultural factors also play a role, she says. Judges and magistrates are mostly men who work in towns and operate in courts that work in Portuguese, the country’s official language. But two-thirds of Mozambique’s 25m citizens live in the countryside and nearly half of the population speaks only African languages, according to the 2007 census.

Both of Luisa’s suspected rapists were eventually arrested. One of them, who was facing other rape charges, died in prison. The other suspect has still not been tried. This is not unusual. Many suspects spend years in pris-on before going to court, according to the Swedish study.

“I was raped and I demand justice,” Luisa says. But two years after her attack, her case is still in limbo.

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Southern Africa: defamation and insultThough still on the books, laws to silence dissent are fading into disfavour

Countering the chill Micah Reddy

Defamation and insult laws remain on the books in many countries, but for the most part,

the West has abandoned enforcing these statutes. In much of Africa, however, criminal trials for insult and defamation are still commonplace and continue to have a chilling effect on free expression.

Research by media watchdog the Committee to Protect Journalists (CPJ) “shows that all too often the media are muzzled through the use of laws designed to silence critical voices”, notes Sue Valentine, CPJ’s Africa programme coordinator.

Insult laws, a feature of Francophone Africa traceable to an 1881 French Law, are designed to shield public officials from disrepute, and silence dissenting voices. Defamation laws differ in that they are not explicitly aimed at protecting those in authority. In theory, any citizen has recourse to defamation law if written (libel) and/or spoken (slander) statements harm someone’s reputation and dignity.

In practice, however, defamation laws are often used to the same ends

as insult laws and with a similar effect on free speech in southern Africa. Cases are often brought against the critics of powerful figures, usually when important issues of public interest are at stake, such as high-level corruption. “Criminal libel laws that recognise truth as a defence in effect invite prosecutions for statements of opinion, which by definition cannot be proven,” according to a 2000 report by the World Press Freedom Committee, a group of national and international news organisations. “Thus, such statutes frequently function as insult laws.”

Insult and criminal defamation trials may lead to imprisonment and heavy fines. For instance, Angolan investigative journalist Rafael Marques de Morais was given a six-month suspended jail term in May for defamation after his exposé of corruption, torture and killing in the country’s diamond fields implicated the country’s top generals and companies.

“It’s sending a message that ‘we can lock you up’,” Mr Marques de Morais said. “‘We can send [you] to jail any time we want.’” The journalist’s latest ordeal was lighter than the one he faced 15 years ago, when he was jailed for 43 days, ordered to pay a $17,000 fine plus costs and given a six-month prison sentence (later suspended) for accusations made against Angola’s president, José Eduardo dos Santos.

However, several recent developments suggest a growing movement against criminalising free expression. A 2010 African Commission on Human and Peoples’ Rights resolution called on all states to “repeal criminal defamation laws or insult laws


Countering the chill

which impede freedom of speech”. And in 2014 the African Court on Human and Peoples’ Rights ordered Burkina Faso to review its legislation after ruling that custodial sentences for defamation were disproportionate and excessive financial penalties were unfair.

So far only one African country, Ghana, has fully and unambiguously repealed criminal defamation laws. Other countries have moved in this direction, albeit at a slower pace.

For example, the Zimbabwean Constitutional Court ruled in 2014 that the criminal code’s defamation law violated the constitution. “Freedom of expression, coupled with the corollary right to receive and impart information, is a core value of any democratic society deserving of the utmost legal protection,” the court said.

However, this ruling applied only to the previous constitution, which

was replaced with a new one in 2013. Meanwhile, arrests for slander and defamation continue because of legal ambiguities, says Jacqueline Chikakano, Zimbabwe legal officer of the Media Institute of Southern Africa.

According to media reports, in the last ten years police have arrested more than 70 people for insulting the president, Robert Mugabe, although not all were charged. For instance, Reuben Gatsi was arrested in May for a remark he allegedly made about Mr Mugabe’s age. Zimbabwe’s new constitution complicates matters by explicitly excluding “malicious injury to a person’s reputation or dignity” from freedom of expression, thereby creating greater space for criminalising defamation.

In some countries defamation laws remain on the statute books, but judges have come out strongly against criminalising expressions of dissent.

For example, in September 2015 a Mozambican court acquitted economist Carlos Nuno Castel-Branco and editor Fernando Mbanze of criminal defamation charges. Mr Mbanze had published in his newspaper an open letter that Mr Castel-Branco had posted on his Facebook page. The economist had compared the 2013 political crisis in Mozambique with the “preludes to fascism” in Europe and accused the former president, Armando Guebuza, of surrounding himself “with bootlickers who lie to you every day, who invent false reports, and give advice based on false premises”. However offensive some might find the letter, “it is perfectly acceptable in a democracy”, ruled Judge João Guilherme in

© Kate van NiekerkRafael Marques de Morais

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Countering the chill

December 2015 / January 2016

Maputo’s district court.South African courts, though, have

upheld criminal defamation laws. In 2014, for example, the High Court acquitted journalist Cecil Motsepe of defaming a judge he claimed was racist. The court ruled that it could not be proven that Mr Motsepe intended to cause harm. But the court nevertheless echoed a previous Supreme Court of Appeal decision: “even though the defamation crime undoubtedly limits the right to freedom of expression, such limitation is reasonable and justified in an open and democratic society.”

However, as in most Western countries, criminal defamation is rarely used to silence critics in South Africa. It helps that the country’s press is governed by an effective system of independent co-regulation in the form of the Press Council, which consists of representatives of the press and the public, as well as judges. “The standard approach if there’s been a front page story that is inaccurate and defamatory is to order a front page apology,” says media lawyer Dario Milo. “There have been very prominent front-page apologies in the last few years where the media get it wrong and are ordered to apologise by the ombudsman,” Mr Milo adds. “A prominent and prompt apology mitigates any damages claim substantially, so it’s an incentive to the media where they get it wrong.”

Effective self-regulatory or independent co-regulatory mechanisms for the media and recourse to fair civil claims which do not have a seriously chilling effect on free expression

are increasingly seen as acceptable safeguards to individuals’ reputations.

Some within South Africa’s ruling alliance have called for tighter control of the media—for statutory media regulation and the imposition of insult laws to protect the president. Yet, in a surprise move, Jeff Radebe, minister in the presidency, stated in September 2015 that the ruling party would “spearhead legislation through parliament to eliminate criminal defamation from our common law”.

This reflects the growing recognition of insult and criminal defamation laws as anachronistic and incompatible with democracy. The end of these laws could soon follow, at least in South Africa.

Who is free?Press freedom in 50 countries in Sub-Saharan Africa 2015, %

Source: Freedom House

Free 8%

Partly free 50%

Not free 42%


Côte d’Ivoire: war crimes and elections Victor’s justice is unavoidable in post-election conflict

Spoils of war Brian Klaas

Elections should bring peace, not war. But for the last 15 years, whenever voters in Côte d’Ivoire

went to the polls, ballots turned to bullets. After the 2010 election sparked the latest civil war, tensions remained, leaving the victors scrambling to forge a new order built on justice and reconciliation. In the wake of violence, a new political order had to be built slowly, piece by piece, in courthouses and in prisons, by judges and by jailors.

In the context of shaky post-election justice and reconciliation, Ivoirians re-elected President Alassane Ouattara to a second term on October 25th 2015. The October vote was peaceful and it was the first since the 2010-11 civil war, which left 3,000 people dead after post-election fighting. The war began after contradictory announcements on the election outcome. The electoral commission declared Mr Ouattara the victor. At the same time, the Constitutional Council—stacked with allies of the ruling regime—proclaimed victory for the incumbent, Laurent Gbagbo. The international community sided with the electoral commission, asserting that the outcome was clearly in Mr Ouattara’s favour.

These conflicting announcements sparked violence, as pro-Ouattara and pro-Gbagbo militias battled intensely for control of the government. The fighting raged for months, stacking up thousands of casualties. The conflict ended in mid-April 2011 when French and United Nations forces intervened and tipped the scales. Mr Ouattara was inaugurated soon after. Mr Gbagbo was arrested in April 2011 and transferred to the custody of the International Criminal Court (ICC) in November of that year to face multiple counts of crimes against humanity. At the time of going to print his trial was set to begin on November 10th 2015.

The wounds of post-election violence heal slowly, leaving deep scars on a nation’s body politic. As Africa in Fact reported in December 2014, Mr Ggagbo’s supporters are critical of the “two-tier justice” being meted out, “in which the spoils belong to the victor and his allies”. Many of Mr Gbagbo’s partisans still contend his defeat was unjust and blame French imperialism for meddling in their nation’s politics. But they are now focusing their attention and scorn on Mr Ouattara, who they say is only instituting “victor’s justice”.

Since losing power in 2011, Mr Gbagbo’s party—the Front Populaire Ivoirien (FPI)—has set its sights on retaking the presidency in the October 2015 election. To do so, they would need to defeat Mr Ouattara, and the formidable political machine of his party, Rassamblement des Républicains (RDR). (In this election, the RDR ran under a different acronym to signify its alliance with another party, the

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December 2015 / January 2016 51

Spoils of war

Parti Démocratique de la Côte d’Ivoire - Rassemblement Démocratique Africain, and is officially known as the Rassemblement des houphouétistes pour la démocratie et la paix.)

Even with Mr Gbagbo out of the picture and in custody in The Hague, the major players were nonetheless the FPI and the RDR. But even before the ballots were printed, the FPI’s electoral hopes were largely dashed. The candidates, leaders, and key players who comprised the top echelons of Mr Gbagbo’s former political machine did not campaign. Instead, they languished in courtrooms and prisons in Côte d’Ivoire or in The Hague, alongside their figurehead.

Although strong evidence shows that both sides in the conflict committed war crimes, critics have put the burden of blame on Mr Gbagbo and his entourage. Charles Blé Goudé, a top ally of Mr Gbagbo, is also in The Hague, awaiting trial at the ICC for crimes against humanity for his alleged part in the 2010-11 post-election violence.

On March 10th 2015, a court in Côte d’Ivoire convicted Mr Gbagbo’s wife, Simone, for her role in the conflict and sentenced her to 20 years in prison. (The ICC issued an arrest warrant for her in February 2012, on four counts of crimes against humanity, and is still clamouring to prosecute her.) Aboudrahamane Sangaré, the former vice-president of Mr Gbagbo’s FPI, was sentenced to five years in prison, as was Mr Gbagbo’s son, Michel.

These figures would have formed the top tier of the FPI’s 2015 presidential hopefuls—but they were behind bars instead.

As a result, the FPI splintered into factions, thereby reducing their electoral chances against Mr Ouattara. Pascal Affi N’Guessan, a more moderate member of the old Gbagbo guard, headed the FPI electoral list. His presence as the FPI’s candidate showcased the perils and political rewards that post-conflict justice afforded Mr Ouattara’s administration.

Mr N’Guessan was arrested in April 2011, and later sentenced to two years in prison for disturbing the peace, but he was soon released. His sentence was comparatively short, compared to other Gbagbo hardliners who are still in jail. Some suggest that the Ouattara regime intervened to lessen Mr N’Guessan’s punishment so as to ensure that a moderate would represent the FPI in

© UNESCO

Alassane Ouattara


Spoils of war

the 2015 contest.The FPI thought Mr N’Guessan

would be willing to negotiate with Mr Ouattara. Others consider him a sell out and traitor to the cause. For Mr Ouattara, however, his candidacy was either a stroke of luck or cynical political genius. Whether those accusations were correct or not, without Mr Gbagbo’s incarceration, Mr N’Guessan would not have participated in the election because Mr Gbagbo would have been the party’s presidential candidate. This furthered Mr Ouattara’s electoral prospects in three ways.

First, Mr N’Guessan lacked the support base that Laurent or Simone Gbagbo enjoy in Côte d’Ivoire. He is a second-tier political figure and therefore was always less likely to win. So long as most of the former Gbagbo heavyweights were in prison, Mr Ouattara’s odds at the polls were better.

Second, Mr N’Guessan’s moderate pragmatism, in contrast to the Gbagbo ou rien (“Gbagbo or nothing” in French) hardliners, drove a wedge straight through the FPI’s middle. Some in the party argued that the FPI should boycott the election so long as Mr Gbagbo and other party leaders remained in jail. Others—like Mr N’Guessan—insisted that the party look forward rather than backward. This wedge likely prompted some FPI supporters to stay home on election day, further enhancing Mr Ouattara’s shot at a second term.

Third, Mr Ouattara needed the FPI’s involvement to ensure that the international community saw the election as legitimate and fair. If the FPI, Côte d’Ivoire’s second largest political party, had not participated,

it would have been difficult for Mr Ouattara to argue that the elections marked an inclusive and peaceful conclusion to the five-year-old wounds wrought by the 2010-11 civil war.

Preliminary turnout figures at the time of going to print suggested that just over half of the eligible voters participated, but that participation rates were much higher in Mr Outtara’s strongholds in the north and much weaker in areas that have historically favoured Mr Gbagbo. That should be sufficient for Mr Outtara to claim an internationally recognised mandate, but will do little to reconcile the nation.

The lesson, however, is not about this election or Mr Ouattara’s victory at the polls. Instead, Côte d’Ivoire’s post-conflict trauma—and the attempt to close those rotting wounds with fresh elections—offers a broader parable for the political nature of justice in the wake of electoral violence or civil wars.

Victor’s justice is virtually unavoidable in post-election conflict because any prosecution has, by definition, political consequences. Pardoning Mr Gbagbo and his allies would have had political ramifications as large as the ones that have resulted from aggressive prosecution. Any path the Ouattara regime pursued was riven with political division. With Gbagbo’s trial about to commence, the election could prove the calm before a new political storm.


Nigeria: delays and distractionsThe new president has vowed to fight graft, but will his judicial reforms work?

Curbing corruptionIni Ekott

One of Nigeria’s most dramatic episodes of judicial corruption happened in January 2013.

The country’s Economic and Financial Crimes Commission (EFCC) had charged six officials with pilfering 32 billion naira [$204m] from the Nigerian police pension fund. One of the accused, John Yakubu Yusuf, a deputy director in the police pension service, had admitted pock-eting two billion naira ($12.7m) in exchange for a two-year prison term as part of a plea bargain. In the event the judge was even more lenient, offer-ing him the option of a 750,000 naira ($4,776) fine as an option and letting him walk out of court.

An intense public outcry followed. The commission, considered Nige-ria’s most efficient anti-corruption agency, later claimed it had been tricked into accepting the plea deal and rearrested Mr Yusuf on fresh charges. The National Judicial Council, a regulatory body whose aim is to guarantee ju-dicial independence, subsequently suspended the judge, Justice Moham-med Talba, without pay for a year.

But Nigerian anti-corruption activists said the court case was yet an-other illustration of the rot in the Nigerian judiciary. They claim loopholes in the country’s legislation allowed crooked officials to raid the country’s coffers with impunity. The outrage about the pension fund scam reflected a growing mood of citizen impatience with “corrupt, small-minded” politi-cians, wrote journalist Remi Adekoya about the country’s ruling elite.

Nigeria ranks 136 out of 174 countries on pressure group Transparency International’s 2014 corruption perceptions index. Its judiciary is the fifth most corrupt of 12 government sectors, according to Transparency Inter-national’s 2015 global corruption barometer.

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Curbing corruption


Commentators and activists say reforms must start with the country’s flawed criminal justice system. “It is the first step, and we would deceive ourselves if we do otherwise,” Ubong Ben of Facts and Figures, an Abuja-based research group, told Africa in Fact.

Yet attempts to punish the plunderers have not succeeded. The EFCC, one of Nigeria’s three anti-corruption agencies, says it obtained 1,046 con-victions between 2003 and 2014. Mr Ben, however, claims these figures reflect only the “smaller thieves”: internet fraudsters, document forgers, impersonators and dubious property brokers.

Since its inception in 2003, the EFCC has opened over 30 cases target-ing former governors, ministers, lawmakers and bank chiefs, but has only won four convictions.

Cases linger, sometimes for ages, delayed by technicalities. “We have cases that we have gone to the Supreme Court on [mere] interlocutory ap-plications, while the substantive case is [held] in abeyance for years,” Wil-son Uwujaren, spokesperson for the EFCC, told Africa in Fact.

An example is the case involving former governor Chimaroke Nnamani of south-eastern Enugu state. He is accused of laundering 5 billion naira ($25m) through a secret account. Eight years after the case was filed, the trial has not begun. The EFCC says Mr Nnamani has deliberately stalled the case by making frequent applications to travel abroad for medical treat-ment, according to online Premium Times newspaper. This July, the court

0

2

4

6

8

10

12

Liberia

Benin

Cameroon

Nigeria

Ghana

Togo

Kenya

Uganda

Mali

Côte d'Ivoire

Judge of characterPerceptions of corruption—judges and magistrates, 2014-2015% of respondents who felt no judges and magistrates had been involved in corruption

Source: Afrobarometer

Curbing corruption


ordered the seizure of some of his assets after several of his co-accused pleaded guilty.

Nigeria’s criminal laws allow smart lawyers to exploit loopholes and stall cases, said Itse Sagay, a former dean of the law faculty at the Univer-sity of Benin and appointed by Nigeria’s new president in August to head a new committee to oversee legal reforms.

One technique lawyers use is to drum up technical challenges to a case and distract judges from the main charges. They ask for frequent adjourn-ments or contest a court’s jurisdiction. If a judge finally decides that he has authority over the case, the defendant often appeals. The substance of a case is ignored. By the time the highest court finally decides on the lower court’s jurisdiction, a decade might have elapsed.

“By then, the investigating police officer [or prosecutor] may have retired,” Mr Sagay said in an interview with Punch magazine. “The offi-cials of the Ministry of Justice who handled [the case] at the early stages in the High Court may have been promoted, and the judges themselves may [also] have retired,” he said. “What we call ‘prosecution fatigue’ sets in [and] the case dies a natural death. It is not that the accused is inno-cent. Rather, the state does not have [the] stamina to pursue the case to the end.”

Questions have also been raised about judges’ use of legal loopholes to hand down light sentences to people convicted of serious crimes, such as stealing billions of naira, while others who are convicted for petty crimes face stiff penalties. In 2010, Cecilia Ibru, a former Oceanic Bank chief ex-ecutive was accused of stealing $1.2 billion. She pleaded guilty to three of 25 counts of fraud and mismanagement and was jailed for six months, but allowed to serve her time at a luxury Lagos hospital. Three months after the 2013 police pension fraud ruling, public anger was stirred again when a 31-year-old former convict, Kelvin Ighodalo was sentenced to 45 years in jail for stealing a governor’s phone in the southern state of Osun.

Judges are easily bribed. Senior judicial figures should be subjected to lifestyle audits and their accounts scrutinised to find unusually large amounts of money that might flag the acceptance of bribes, Debo Adeniran, executive chairman of the Coalition Against Corrupt Leaders (CACOL) told Africa in Fact.

Between 2009 and 2014, the National Judicial Council sanctioned 64 judges for various transgressions, including corruption, and dismissed

56

Curbing corruption


three of them, Chief Justice Mahmud Mohammed said at a Nigerian Bar Association seminar in June. None of the sanctioned or dismissed judges faced prosecution.

However, the Administration of Criminal Justice Act of 2015, a new law approved by the former president, Goodluck Jonathan, introduces sweep-ing judicial reforms. Mr Sagay’s committee of experts will oversee the im-plementation of these reforms.

The new law stipulates that cases must be heard without adjournments. Where a postponement is inevitable, it must not exceed two weeks. No case may be interrupted more than five times. Judges, even if promoted to a higher court during a case, may no longer abandon the trial; previously, this often meant that cases had to be restarted.

Nigeria’s judges must now focus on the substance of a case, while also hearing technical objections, such as challenges to their jurisdiction, Mr Sagay told The Punch in early September. His committee will also push for stiffer sentencing for corruption convictions. In addition, the judicial council has issued new disciplinary regulations to rein in corrupt judges.

But activists warn that some sections of the new rulebook may have an adverse effect, and continue to embolden corrupt judges. An example is a section stipulating that a complaint of misconduct must be lodged against a judge within six months of an alleged incident. Revelations of possible misconduct can often take longer than that.

“In most cases, the corrupt conduct of a judicial officer may only be-come public knowledge following a careless slip, or [as a result of] the irre-pressible work of investigative reporters,” Joseph Otteh, executive director of Access to Justice, a Lagos based non-governmental organisation that carries out legal research, told a news conference in September. “When-ever the facts become known, let due process follow.”

Mr Adeniran claims the law should have included even stiffer sanctions. In particular, he argues, judges should no longer be allowed to hand down concurrent sentences. “If an individual is guilty of five corruption charg-es and each is punishable by a two-year term, then the ruling should be ten years in jail. No concurrent sentence,” he says. “That’s what will deter corruption.”

57


South Africa: a time to worryYet another controversial appointment deepens doubts about the president’s commitment to the rule of law

The case against Nomgcobo Jiba Rian Malan

Spare a thought for South African journalists, reduced to peering into murk and gun smoke for

clues as to what’s going on inside South Africa’s National Prosecuting Authority (NPA), the crisis-riddled state agency that decides the fate of criminal suspects in the country. Police files flow into the NPA’s maw, and decisions emerge on the far side—prosecute this case, abandon that one. Once, these decisions were respected. Now they often precipitate furious battles between rival law enforcement factions whose weapons include dirty tricks, illegal wiretaps and sensational leaks to the media.

On August 18, however, the smoke cleared momentarily. The scene is a press conference at the NPA’s Pretoria headquarters. Two figures sit on the

podium. The dashing man with shaven pate is Shaun Abrahams, a youngish lawyer plucked from relative obscurity to become the new head of the NPA. The woman beside him is Nomgcobo Jiba, a veteran of the NPA’s internal wars. Mr Abrahams announces that he is appointing Ms Jiba to a newly created position in many respects more powerful than his own. As Deputy Director of Public Prosecutions, she will oversee all prosecutorial decisions countrywide.

Given Ms Jiba’s history, this causes certain jaws to gape. “Outrageous”, says Corruption Watch, a lobby group based in South Africa. “A massive step backward”, says a local newspaper. Ms Jiba counters that she is “hurt and offended” by such criticism, and laments the damage it is causing to her three children. She also denies that she is in any way biased in favour of South Africa’s president, Jacob Zuma. With that, the players leave the podium, and the murk closes in again.

To understand how it came to this, we have to return to April 6th 2009, the day the NPA announced it was dropping corruption charges against presidential hopeful Jacob Zuma. Helen Zille, then-leader of the Democratic Alliance (DA), South Africa’s largest opposition party, is waiting outside, trembling with rage. She denounces the NPA decision as a travesty and vows that her party will not rest until the agency discloses every shred of evidence upon which it is based.

In particular, the DA wants to hear the so-called “spy tapes”, fruit of a cloak-and-dagger wiretapping operation masterminded by the

58

The case against Nomgcobo Jiba


South African Police Service’s Crime Intelligence Division. According to the NPA, two voices can be heard on excerpts of the tapes. One belongs to Leonard McCarthy, head of the NPA’s directorate of special operations, the other to Bulelani Ngcuka, an influential businessman and close ally of the then-president, Thabo Mbeki. These men are heard agonising about the timing

of Zuma’s arrest, which they think might cause riots if mishandled. Their conversations also make it clear that Mr McCarthy is not exactly neutral in the rivalry between Messrs Mbeki and Zuma.

Audio copies of these conversations are leaked to Mr Zuma’s lawyers, who charge that Mr McCarthy’s indiscretions have hopelessly tainted the NPA’s

case. Prosecutors working on the investigation beg to differ, but their seniors overrule them and the Zuma prosecution is abandoned—a decision that opens the way for Mr Zuma to become president. Ms Zille argues that so momentous a decision should have been taken by a judge in open court, not behind closed doors.

Hence the DA’s so-called “spy tapes” case, which began as an urgent review application on the day after Mr Zuma’s charges were withdrawn and is still dragging its way through the courts today. From the start, it is repeatedly blocked or delayed by Menzi Simelane, the Zuma appointee who heads the NPA. The DA retaliates by filing a parallel lawsuit, arguing that Mr Simelane seems incapable of grasping that the constitution requires him to be neutral and asking for his removal from office. The court rules in the DA’s favour: Mr Simelane has to go.

Called upon to find a replacement, Mr Zuma’s eye falls upon Ms Jiba. She is too inexperienced to be appointed the NPA’s head, but Zuma decides she will make an acceptable temporary stand-in. She becomes acting National Director of Public Prosecutions in December 2011. Soon after taking up her new position, Ms Jiba is confronted by a court order compelling the NPA to hand over the spy tapes and associated records within 14 days.

Ironies abound here. Ms Jiba played a role in the police espionage operation that exposed the Ngcuka/McCarthy conversations in the first place, thereby saving Zuma from criminal prosecution. Then, on coming to power, Mr Zuma took a step some saw as a thank-you:

© GovernmentZA

Deer in the headlights?

59



he expunged the criminal record of her husband, a lawyer jailed for stealing his client’s money.

Now a court is trying to compel Ms Jiba to hand over evidence that might overturn the NPA’s 2009 decision and land her president back in the dock, facing 783 criminal charges arising from alleged arms deal bribes. Her response is an affidavit arguing that the spy tapes are subject to attorney-client privilege, and that the DA can have them only if Mr Zuma’s lawyers agree. A damning appeal court judgement concludes that Ms Jiba should have taken a position, and not have left the decision in Mr Zuma’s hands. “Such conduct undermines the esteem in which [her office] ought to be held by citizens of this country,” the court says.

Ms Jiba’s next crisis arrives in April 2012, when she places a veteran prosecutor, Glynnis Breytenbach, under suspension, allegedly for challenging NPA decisions in a matter involving Richard Mdluli, another veteran of the clandestine police effort to bug NPA telephones. He had been appointed head of police crime intelligence after Zuma came to power, only to fall victim to what he describes as a conspiracy orchestrated by political enemies. In 2011, facing an array of criminal charges, he wrote a letter asking President Zuma to intervene on his behalf and promising in return “to help the president succeed next year”— generally interpreted as an offer to help Zuma fend off any challenge he might face at a forthcoming ANC electoral conference.

One of the cases against General Richard Mdluli involves an unsolved

murder, but let’s focus here on his alleged abuse of Crime Intelligence’s secret fund for informers, spies and undercover agents. In a secret report to the Inspector-General of Intelligence, General Mark Hankel alleges that General Mdluli has appointed several friends and relatives to such positions, even though their utility as spies is not exactly clear. His wife and ex-wife, for instance, are both reportedly drawing salaries equivalent to that of a police colonel while sitting at home doing nothing.

In December 2011, one of Ms Jiba’s subordinates announces that he is withdrawing fraud charges against General Mdluli on the grounds that the NPA is barred from intervening in top-secret intelligence matters. The aforementioned Ms Breytenbach, lead prosecutor on the case, is dumbfounded. She writes Ms Jiba a 25-page memo, arguing that the charges against General Mdluli are legally sustainable and urging Ms Jiba to allow her to reinstate them. Ms Jiba ignores her. Ms Breytenbach is placed on suspension and eventually forced out of the NPA. General Mdluli returns to work in March 2012, apparently cleansed and vindicated.

A non-profit organisation named Freedom Under Law challenges General Mdluli’s reinstatement in court, and Ms Jiba finds herself before a judge, attempting to explain her actions. She says underlings made the key decisions, not her. Indeed, she says she wasn’t even aware that General Mdluli had been let off the hook, an assertion that will later strike retired Constitutional Court judge Zac Yacoob as “incredible”.

60



Ms Jiba goes on to claim that she received no objections to the Mdluli decision. This flies in the face of evidence from Ms Breytenbach, who shows that she formally requested Ms Jiba to rescind the Mdluli decision, only to be suspended and slapped with an array of disciplinary and corruption charges, all of which were eventually resolved in her favour. Judge John Murphy finds Ms Jiba’s conduct inexplicable, and orders that the charges against Mr Mdluli be reinstated. In his judgement, Judge Murphy slates Ms Jiba for failing to evaluate the gravity of the evidence against General Mdluli, saying that she had attempted to “shield illegal and irrational decisions from judicial scrutiny”.

Meanwhile, General Johan Booysen, a central figure in a sizzling scandal in Durban, is attacking Ms Jiba on another front. General Booysen has made a nuisance of himself by authorising a wiretap operation against Thoshan Panday, a flamboyant businessman allegedly connected to the local Zuma patronage machine. According to the Mail and Guardian, a Johannesburg

weekly, the resulting recordings point incriminating fingers at persons in high places, including (some say) the president. When General Booysen declines to accept a bribe and look the other way, he finds himself facing criminal charges under the Prevention of Organised Crime Act.

Outraged by this insult to his integrity, General Booysen challenges his arrest in court. Ms Jiba is called upon to explain why she authorised his detention.

In response, she produces a stack of 290 witness statements pertaining to shootings involving officers from the Cato Manor organised crime unit, which falls under General Booysen’s command. Ms Jiba argues that the unit is a death squad, given to performing paid assassinations and extrajudicial executions. But the evidence in this regard is contentious, and against General Booysen in person, almost non-existent. Analysis of those 290 statements shows that General Booysen’s name is mentioned only three times. In two cases, he attended police shootings in their aftermath, and did

NPA drops corruption charges against Jacob Zuma.

General Richard Mdluli appointed head of police

Crime Intelligence

Allegations brought against General Mdluli regarding illegal raid of public prosecutors office, interfering with Hawks investigation

into Radovan Krejcir and the 1999 murder of Oupa Ramogibe

Nomgcobo Jiba becomes acting head of NPA. One of Ms Jiba’s subordi-

nates announces the withdrawal of fraud charges against General Mdluli

on the grounds that the NPA is barred from intervening in top-secret

intelligence matters

General Mdluli’s suspension lifted

Glynnis Breytenbach suspended for

challenging NPA decisions

Freedom under Law challenges General Mdluli's reinstatement. Ms Jiba finds herself in front of a Consititutional Court judge, who questions her assertions

General Booysen is arrested and faces criminal charges for

allegedly being part of a hit squad. Court dismisses

allegations

Judge Murphy slates Ms Jiba for failing to

evaluate the evidence against General Mdluli

Ms Jiba steps down, Mxolisi Nxasana takes over as head of NPA

The racketeering charges against General Booysen dropped. Judge Gorven said Jiba did not have any

material before her that could "rationally authorise" General

Booysen's prosecution

Mr Zuma announces presidential inquiry into Mr Nxasana's

fitness to hold office

Revelations emerge of criminal charges

in Mr Nxasana's past

General Mdluli fraud case "temporarily"

suspended. Mr Nxasana’s decisions

reversed

Mr Nxasana steps down and receives

R17m golden handshake

Shaun Abrahams installed as new NPA head

October 2013

Mr Abrahams announces that he has

appointed Jiba as deputy head of the NPA and will be dropping all

charges against her

General Booysen suspended again

April 2009

March 2011

December 2011

March 2012

April 2012

May 2012

August 2012

September 2013

September 2015

August 2015

June 2015

May 2015February 2014

May 2014 April 2015

February 2015

61



nothing inappropriate. The rest of her evidence is even

weaker. One of the affidavits on which she based her decision is dated two weeks after Booysen’s arrest, and devoid of direct accusations against General Booysen. A second is neither signed nor dated, and a third comes from a witness who has since died. General Booysen maintains that Ms Jiba actually has no evidence against him at all, and that her claims to the contrary are “mendacious”. When Ms Jiba fails to provide a rebuttal, Judge Trevor Gorven draws the logical inference: Ms Jiba has tacitly admitted to lying under oath.

By now, Ms Jiba has stepped down from her temporary leadership position and the NPA has a new head, Mxolisi Nxasana. By several accounts, Mr Nxasana is an honest man who wants to do the right thing. Perturbed by mounting judicial criticism of Ms Jiba, he asks outside counsel to review her performance. The consultant recommends that Ms Jiba be prosecuted for her actions in the Booysen case. When this fails to convince the presidency, Mr Nxasana refers the

matter to a committee headed by Judge Yacoob. He agrees: there is “a prima facie” case to answer. With that, Mr Nxasana steels himself and files fraud and perjury charges against Ms Jiba.

Judging by the reaction, this decision is not welcome. A hidden hand reaches into Mr Nxasana’s past and comes forth with several skeletons. According to a presidential proclamation, these include youthful convictions for assault and unspecified “criminal charges for acts of violence”. His sense of propriety suddenly inflamed, Mr Zuma announces that he is convening a hearing to assess Mr Nxasana’s fitness for office. According to NPA insiders, Mr Nxasana has no stomach for war and the strain is affecting his family. So he decides to step down in return for R17m ($2.2m) and a statement from Mr Zuma withdrawing any aspersions that may have been cast on his character.

Once Mr Nxasana is gone, rivals flood into the vacuum left by his departure and set about reversing decisions made during his brief tenure as NPA chief. Within days, the four-year-old fraud case against General

NPA drops corruption charges against Jacob Zuma.

General Richard Mdluli appointed head of police

Crime Intelligence

Allegations brought against General Mdluli regarding illegal raid of public prosecutors office, interfering with Hawks investigation

into Radovan Krejcir and the 1999 murder of Oupa Ramogibe

Nomgcobo Jiba becomes acting head of NPA. One of Ms Jiba’s subordi-

nates announces the withdrawal of fraud charges against General Mdluli

on the grounds that the NPA is barred from intervening in top-secret

intelligence matters

General Mdluli’s suspension lifted

Glynnis Breytenbach suspended for

challenging NPA decisions

Freedom under Law challenges General Mdluli's reinstatement. Ms Jiba finds herself in front of a Consititutional Court judge, who questions her assertions

General Booysen is arrested and faces criminal charges for

allegedly being part of a hit squad. Court dismisses

allegations

Judge Murphy slates Ms Jiba for failing to

evaluate the evidence against General Mdluli

Ms Jiba steps down, Mxolisi Nxasana takes over as head of NPA

The racketeering charges against General Booysen dropped. Judge Gorven said Jiba did not have any

material before her that could "rationally authorise" General

Booysen's prosecution

Mr Zuma announces presidential inquiry into Mr Nxasana's

fitness to hold office

Revelations emerge of criminal charges

in Mr Nxasana's past

General Mdluli fraud case "temporarily"

suspended. Mr Nxasana’s decisions

reversed

Mr Nxasana steps down and receives

R17m golden handshake

Shaun Abrahams installed as new NPA head

October 2013

Mr Abrahams announces that he has

appointed Jiba as deputy head of the NPA and will be dropping all

charges against her

General Booysen suspended again

April 2009

March 2011

December 2011

March 2012

April 2012

May 2012

August 2012

September 2013

September 2015

August 2015

June 2015

May 2015February 2014

May 2014 April 2015

February 2015

62



Mdluli is “temporarily” abandoned to allow the NPA time to finish its investigation. Then the youthful and relatively inexperienced Mr Abrahams is installed as the new NPA head. One of his first acts in office is to announce the withdrawal of criminal charges against Ms Jiba on the grounds that she “acted in good faith” in authorising General Booysen’s arrest.

Soon after, General Booysen is

suspended yet again. A senior officer who backed General Booysen’s pursuit of Mr Panday—Robert McBride, head of the Independent Police Investigations Directorate—is also placed under suspension. In fact, Mr Nxasana himself might be a victim of the Panday case: last year, newspapers reported that he was planning to send ace prosecutor Gerrie Nel to Durban to re-examine all the cases brought against Mr Panday. Now that investigation appears to be dead in the water.

In earlier times, a person in Mr Panday’s position might have worried about losing his gleaming red Ferrari to Willie Hofmeyr’s Asset Forfeiture Unit, one of the few NPA divisions regarded as clean and effective. But Mr Hofmeyr was sidelined after Mr Abrahams came to power, and now occupies an

inconsequential administrative position.This brings us back to the press

conference described in the opening paragraphs—the one where Mr Abrahams appointed Ms Jiba to a position more powerful in many respects than his own. According to Ms Breytenbach, now the DA’s shadow justice minister, this reflects the reality: Ms Jiba is the real boss of the NPA, she says, and Mr Abrahams her patsy. “Jiba is odious,” Ms Breytenbach says. “Her agenda is to protect the president and his networks, even if it means destroying the NPA.”

Well yes. The DA has an agenda too—get the president. But something more important than Mr Zuma’s fate is at stake here. South Africa’s once-respected prosecutorial service is itself increasingly under suspicion. As David Lewis of Corruption Watch puts it, “It is time to be really, really worried.

In earlier times, a person in Mr Panday’s position might have worried about losing his gleaming red Ferrari to Willie Hofmeyr’s Asset Forfeiture Unit.


Trust in the courts, 2014-2015Respondents were asked: “How much do you trust the courts of law, or haven’t you heard enough about them to say?”

Source: Afrobarometer *Information available only for these countries

Africa in figures

Country* Not at all Just a little Somewhat A lot Don´t know

Benin 18.3% 30.3% 28.4% 20.6% 2.4%Botswana 10.3% 17.0% 27.5% 41.2% 4.0%

Burundi 10.7% 17.3% 24.8% 46.1% 1.0%Cabo Verde 14.4% 17.6% 34.1% 27.1% 6.8%

Cameroon 26.1% 27.3% 25.7% 16.7% 4.1%Côte d'Ivoire 24.8% 36.1% 19.5% 17.5% 2.1%

Ghana 30.3% 23.5% 20.3% 22.0% 3.5%Kenya 12.4% 25.6% 38.4% 19.1% 4.4%

Lesotho 18.0% 8.9% 17.7% 48.5% 6.9%Madagascar 41.3% 29.6% 19.9% 8.9% 0.3%

Malawi 10.1% 16.1% 19.5% 51.0% 3.3%Mali 26.6% 27.9% 24.9% 20.2% 0.4%

Mauritius 5.5% 20.1% 44.8% 27.4% 2.2%Namibia 5.4% 20.8% 35.5% 37.4% 1.0%Nigeria 23.8% 36.1% 29.6% 9.0% 1.5%

Senegal 12.0% 17.1% 28.9% 36.0% 6.0%Tanzania 7.7% 20.7% 43.4% 25.9% 2.4%

Togo 33.0% 24.8% 18.4% 18.5% 5.2%Zambia 13.9% 24.5% 18.0% 41.0% 2.6%

Zimbabwe 11.7% 21.7% 35.9% 27.2% 3.4%Total 17.4% 23.3% 28.5% 27.5% 3.1%

0 5 10 15 20 25 30 35 40 45

Madagascar Togo

Ghana

Mali

Cameroon

Côte d'Ivoire

Nigeria

Benin

Lesotho

Cabo Verde

Zambia

Kenya

Senegal

Zimbabwe

Burundi

Botswana

Malawi

Tanzania

MauriJus

Namibia

Share of respondents who said they did not trust the courts of law at all, 2014-2015%

20 20

www.gga.orgTelephone: +27 11 268 0479Email: [email protected] Address: 4 Biermann Avenue, Rosebank, 2196Postal Address: P.O. Box 2621, Saxonwold, 2132, South Africa

Gaps in the marketSource: Global Competitiveness Index

Efficiency, stability and trustworthiness of the financial and banking system

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