Prosecuting International Crimes in Africa - PULP - University of ...

280 Chapter 13
Africa’s involvement in the establishment and subsequent operation of the
Court. In the first place, it is important to recall that African states played
a central role in the adoption of the Rome Statute. 17 It must be noted in
this regard, that African countries were especially active during the
negotiations for the establishment of the Court and they made detailed and
extensive contributions during the negotiation process. 18 For example,
Southern African states, Malawi included, played a very important role in
the negotiations leading to the establishment of the ICC. 19 Further, at least
47 African states were represented during the drafting of the Rome Statute
and many of the African countries were members of the Like-Minded
Group that pushed for the adoption of the Statute. 20 Strikingly, Africa
remains the most heavily represented region in the Court’s membership, in
terms of state party ratification of the Statute. 21 The African involvement
in the drafting process, one could plausibly argue, entails that the final
product and the framework it creates is as much a product of the African
contribution as it is of the other state parties that participated in the
drafting. A fact often glossed over is that Africa is also well represented in
the Court’s hierarchy and by implication, in its operations. 22 It is thus
rather erroneous to quickly dismiss the ICC as a Western tool established
for imperialistic purposes. Additionally, the widespread ratifications of the
Statute by African countries must signify, at the very least, Africa’s
‘endorsement’ of the ICC and the processes that it stands for. 23
Perhaps the most high-profile manifestation of African countries’
unease with the work of the ICC was the adoption by the African Union
of a decision whereby members of the AU were urged not to co-operate
17 J Dugard ‘Africa and international criminal law: Progress or marginalization?’ (2000)
94 American Society of International Law Proceedings 229 230.
18 AMICC ‘Africa and the International Criminal Court’ http://www.amicc.org/docs/
Africa%20and%20the%20ICC.pdf (accessed 16 March 2010).
19
BC Olugbuo ‘Implementation of the Rome Statute in Africa: An analysis of the South
African legislation’ (2004) 1 (1) Eyes on the ICC 219 220.
20 Coalition for the International Criminal Court (n 14 above).
21
As above.
22 Five of the Court’s current judges are African: Fatoumata Dembele Diarra (Mali);
Akua Kuenyehia (Ghana); Daniel David Ntanda Nsereko (Uganda); Joyce Aluoch
(Kenya); and Sanji Mmasenono Monogeng (Botswana).There are also several Africans
that occupy high-level positions at the Court, for example, Deputy Prosecutor Fatou
Bensouda (The Gambia), Deputy Registrar Didier Preira (Senegal).
23
Concededly, the dynamics of treaty signature and ratifications in Africa are pretty
complex. It is a fact that African states invariably lead in the signing and ratification of
international treaties while their compliance with most of the treaties is often abysmal.
The reasons for the lack of compliance are multifarious but do not necessarily stem
from a lack of will to comply with the treaty obligations. Some states simply do not
have the resources and expertise to ensure compliance with the treaties. See C Odinkalu
‘Back to the future: The imperative of prioritising for the protection of human rights in
Africa’ (2003) 47 Journal of African Law 1 24.