African backlash against international courts rises

Yet even the strongest African proponents of an improved rule of law describe a negative new mood among national politicians. This summer, the 52-nation African Union backed away from its former strong advocacy of the ICC, swayed in part by the Bashir indictment, Sudanese lobbying, and fear that other African heads of state may one day be targeted by the ICC.

Charles Villa-Vicencio, former executive director of the Institute for Justice and Reconciliation in Cape Town, South Africa, at a forum in the US on Oct. 3 described a deepening antagonism in Africa for international institutions.

African judicial authorities are also questioning the practices of American and British justice departments in prosecuting alleged terrorists, and to the mostly hands-off approach to the ICC taken by the US (110 nations are members of the ICC – the US, China, and Russia are not) – saying this has undercut their moral authority as legal torchbearers. Those like Don Deyo of the East Africa Law Society in Arusha, Tanzania, say their states are committed to improvement but are irritated by critics who say they move too slowly. “The fleas come with the dog,” he says.

The perception of an anti-African ICC bias is thwarting efforts by UN and justice advocates for African states to take the next step to implement the Rome Statute. This process requires states to reform and conform their judiciary to international rule of law standards.

South Africa and Senegal have agreed to such reforms, and Kenya is close. “This is the way you build up a system of law at the national level,” argues Mr. Carrel. “The [1948 Universal] Declaration of Human Rights was never binding. But today it is a master plan for constitutions … most every state refers to it.”

But “implementation” in Africa may be grinding to a halt for now. “The whole perception of a double standard in Africa is clouding the usefulness of the ICC at this time,” says Nigerian Olawale Fapohunda, a managing partner at a law firm in Lagos. “It’s a major concern for international justice and it will affect the workings of the ICC. No one is talking about implementation at the moment.”

Still, budding legal and human rights communities in states such as Kenya remain firmly committed to judicial reform, citing a need for safeguards and the protection of improved laws.

“We need the changes,” says Nairobi lawyer Mike Chauke whose firm bears his name. “You can’t have a civil society group going to court entirely on its own. By implementing legislation, it is easier for lawyers to insist that the rules we agree to be applied.”

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