Forget the ICC: Let Africa revive its traditional justice systems

The beginning of June saw Uganda’s capital Kampala, the heartbeat of Africa, play host to the first ever Review Conference of the Rome Statute, which in 2002 gave birth to the International Criminal Court (ICC). This timely event triggered renewed interest in discussions centred on the limits and possibilities of international justice serving African interests. Questions such as 'Is there sufficient gravity for Africans to depend on the International Criminal Court to deliver local justice?' dominated civil talks at malwa (local brew) dens in towns and villages right across the continent.

In East Africa, Kenyan Nobel Peace Prize laureate Wangari Maathai added to the works. Writing in an East African weekly prior to the conference and in reference to her native Kenya – which saw 1,300 killed and more than half a million internally displaced following the post-election violence of late 2007 – she argued that Africa has leaders that make violence against humanity seem worthwhile. ‘These leaders,’ Maathai observed, ‘mobilized their supporters, mostly from their communities, to go and kill and rape and destroy members of other communities.’ Accordingly, Maathai affirmed that Africans support the ICC in bringing to an end the culture of impunity by holding those who commit such crimes in Africa to account. ‘Impunity,’ noted the professor, ‘not only perpetuates crimes against women, children and other civilians, it teaches successive generations how to continue the violence.’

While it is difficult to fault the professor, my pan-African impulse is very much enticed. From ancient European philosophers such as Plato and Aristotle to notable African thinkers like Cheikh Anta Diop, Dani Nabudere, Ali Mazrui and Archie Mafeje – and undoubtedly many others – runs a thread of universal agreement that the idea of justice inevitably suggests the notion of a certain equality. In Africa this has not been the case.

Given the five centuries of systematic destruction of African communities’ political, cultural, economic and social structures by Europeans, Africa is yet to attain psychological well-being from the sustained assault on its humanity, which continues to this day under different guises, including the ICC’s ‘legal colonialism'. Exogenous forces aside, today’s societies in Africa are also deeply marked by class, ethnicity, gender, religion and other dimensions of difference and inequalities, making injustice instead of justice the norm. The continent has been forced to continue nursing a deep sense of what my good friend Professor Mammo Muchie has termed a ‘wounded psyche’ in its memory, one that keeps attacking the marrow of its social, political and legal confidence.

Since flag independence in the 1960s, African governments have been in a rush to normalise authoritarian rule and human rights abuses under the auspices of maendeleo (development) and economic growth. A short stroll in any African village today confirms that the globalised Western culture of justice delivery or innovation that most African leaders seem to trust has not improved the well-being of our local communities or delivered justice for them. On the contrary, it has often blocked viable indigenous innovation of cultures and suffocated African justice. Here in East Africa, cultures of innovation have largely accrued from the jua kali (informal), and not the formal sector. Indigenous cultural innovations have also been at the centre of development in most highly indebted poor countries (HIPC), such as in Uganda or its slightly richer sister Kenya, notably because of wanainchi (citizens) exceptionally limited access to capital.

As such, when it comes to delivering justice in Africa, we ought to revise our priorities by doing away with existing preconceived ideas that might have worked within the European cultural setting. They have clearly not worked in the face of the socio-cultural heritages of African societies, and neither has the opposite, the Africanisation of Western concepts of justice delivery.

This is because the Western justice paradigm remains retributive, hierarchical, adversarial and punitive and is guided by codified laws and written procedures. On the other hand, African justice systems have always been guided by unwritten laws, traditions and practices like inclusiveness, consultation and consensus. These are learned primarily by example and through the oral teachings of elders. In any legal matter, every adult member of the community gets involved in solving a conflict and they all focus on the need to resolve issues so as to attain peace and social harmony. The community is involved in the entire process, from the disclosure of problems to discussion and resolution, making amends and restoring relationships.

Recently while on a study visit to Iwokodan, an Iteso clan in Kamuge, Pallisa District, north eastern Uganda, I was narrated a story of a land dispute involving two community members – that took 20 years being tossed around courts – which was eventually resolved within days after it was referred back to the clan. In that case an amicable resolution was reached promptly because of elements such as the just act is correctness, the rejection of inequality, reason instead of arbitration, conscience instead of inhumanity and so forth, elements that one find in traditional African justice unlike the existing westernised arrangement. Another example is Rwanda where the re-establishment of its traditional courts (thegacaca) to help deal with the crime of genocide and foster reconciliation between its communities has yielded a positive outcome.

When it comes to international law, it is fair to argue that African states have failed to abide by their international fair trial obligations, probably because these standards have been impractical in the first place, given the realities of poverty, illiteracy and strong cultural beliefs that characterise most of our communities in Africa. As a result, the law applied by the Western-style courts is felt to be out of touch with the needs of most African communities, and coercion to resort to them therefore amounts to a denial of justice.

As for the ICC, we must reject it on the basis that it is an example of legal colonialism by the European Union (EU). Not only does it receive 60 per cent of its funding from the EU, it has also ignored all European or Western human rights abuses in conflicts in Iraq and Afghanistan, as well as human rights abuses by states considered ‘darlings of the West’. Despite over 8,000 complaints about alleged crimes in at least 139 countries, the ICC has started investigations in just five countries, all of them here in Africa. The ICC’s double standards and autistic legal blundering in Africa have derailed delicate peace processes that have instead prolonged devastating civil wars. As David Hoile, author of 'The International Criminal Court: Europe’s Guantánamo Bay?', has observed, ‘the court’s proceedings ought to be questionable given its judges, some of whom have never been lawyers, let alone judges, are appointed as the result of vote-trading among member states.’ Hoile adds, ‘The ICC has engaged in prosecutorial decisions which should have ended any fair trial because they compromised the integrity of any subsequent process. Its first trial stalled because of judicial decisions to add new charges half-way through proceedings.’

The need to emancipate the continent from the ravages of foreign domination and underdevelopment and build a new Africa from the grassroots upwards ought to be concerns for us all. As renowned scholar Dani Nabudere forcefully urges, ‘we must defend African people’s dignity and civilizational achievements and contribute afresh to a new global agenda that can push us out of the crisis of modernity as promoted by the European enlightenment.’

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* Ronald Elly Wanda is a lecturer at Marcus Garvey Pan-Afrikan University in Mbale, Uganda.
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