Citizens take African tyrants to local and international courts to get justice
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Citizens take African tyrants to local and international courts to get justice

Posted GEOFF HILL

on  Sunday, April 9   2017 at  10:16

It’s not just the International Criminal Court that should worry the presidential palace if events are anything to go by.

Over and again, leaders used to getting their way have lost to NGOs, opposition parties and ordinary citizens who approached the local bench. 

While Kenya and Uganda mutter about leaving the ICC, South Africa has reversed its decision to withdraw after a challenge in the Pretoria High Court by the opposition Democratic Alliance (DA).

Three judges ruled in favour of the DA that any step away from the Rome Stature would be at odds with the constitution. 
President Jacob Zuma’s desire to leave stemmed from an effort by the group Lawyers for Human Rights to force an arrest of Sudanese president Omar al-Bashir who, in June 2015, attended a Heads of State Summit near Johannesburg.

A warrant from The Hague on a charge of genocide meant any ICC member was compelled to detain him on sight.  

READ:South Africa to appear at ICC in April over Sudan's Bashir
President Zuma and his ministers hatched a plan to whisk their guest out of the country and, since then, no one wanted at The Hague has dared enter South Africa.

UGANDA

The ICC has also asked Uganda to explain why President al-Bashir was allowed to attend President Museveni’s inauguration in May 2016. 

Further afield, tyrants are being tested not by global justice but in local courts. And for the most part, they are losing on a continent with more democracy now than at any time in history.

 • In Nairobi, athletes sued officials who allegedly stole money meant to cover their expenses at the 2016 Rio Olympics. If the matter is not resolved, there are fears Kenya could be barred from future games.

 • Zimbabweans detained for protesting against President Robert Mugabe were released by the court after they challenged the legality of their arrest.

 • In Nigeria, a local court has thrown out Abuja’s effort to stop Biafran separatist, Nnamdi Kanu, from taking his case to be heard by judges from the regional body, Economic Community of West African States (Ecowas). He is suing the state for $800 million, claiming a lengthy detention and alleged abuse have violated his rights.

 • Former Gambian strongman, Yahya Jammeh, who fled the country in January faces multiple charges of murder, torture and embezzlement.

 • The new African Court on Human and Peoples’ Rights, based in Arusha, has been inundated with cases from NGOs and individuals including 50 from Tanzania alone. Four of the court’s 11 judges are from East Africa, with Kenyan lawyer Ben Kioko serving as vice president.

BRIBERY

But it’s not all good news. According to a new, continent-wide poll, 30 per cent of respondents paid a bribe before getting help from the courts.

In the study by Afrobarometer, Sierre Leone fared worst for judges on the take (67 per cent) while in Uganda and Kenya, more than 40 per cent said they had to pass money or a gift to someone in the system. Botswana scored a perfect zero.

There is also a problem with the cost of retaining a lawyer and sitting unpaid in a courtroom instead of at work.

In Kenya, 49 per cent found the process too expensive and, across the continent, more than a third complained about the price.

Prof Gregory Stanton, one of the world’s top authorities on international law and founding president of Genocide Watch, the leading monitor for crimes against humanity, says that democracy must be grounded in the grassroots.

“That’s why courts are open to the public.  It’s why legal challenges can be brought to stop orders of the president, a minister or anyone else in authority,” he said.

According to Stanton there are two ways to cut short a crisis: “Use the media and use the courts.”
But taking on a tyrant is not easy, even if you win.

DJIBOUTI

Last month in London, the long-time president of Djibouti was humiliated after losing what critics say was an attack by proxy on the political opposition.

Since independence from France in 1977, Djibouti’s only two presidents have been Ismaïl Omar Guelleh and his late uncle.

The Constitution has a two-term limit but President Guelleh is on his fourth, winning 87 per cent of the vote last year in a country where media is under state control and opponents have largely been driven underground or to exile.

Enter Abourahman Boreh, a friend of the president who spoke out when President Guelleh ran for a third term in 2011, and suggested he may stand as a rival candidate. 

Mr Boreh’s firm had been retained to expand the port on a strategic piece of land near the capital, jutting into a narrow strait of water that forms the only link between the Indian Ocean and Suez. 

Mr Boreh was placed on a trumped-up terror charge and, when he fled, President Guelleh pursued him through European courts, freezing his assets, then suing the businessman who now had no money to fight his case.

But the Guelleh regime lost every time — the evidence was either lacking or shown to be fabricated. Mr Boreh’s assets were released and he was found innocent on all counts.

Then Djibouti went after the company Boreh had contracted to build a container dock at the port, claiming Dubai-based DP World had won the tender through a bribe. DP also has terminals in Europe, Senegal, Mozambique and across the Middle East.

In February, a commercial court in London found nothing to back the claim.

Djibouti was ordered to reimburse Mr Boreh a staggering £9.3m (±R150m) for his legal team.

COURT DELAYS

Another complaint in the poll was time. More than 60 per cent said justice is too slow. For example, three-quarters of Kenyans felt delays at court were intolerable. Ditto Tanzania at 60 per cent and Liberia the worst at 81.

Other gripes were that judges don’t listen and the process is hard to understand.
Little wonder the challenge to state power comes mostly from NGOs and class action. But, for the all the problems, there’s been a steady rise in cases. So much so that President Zuma says the courts are making his job difficult. He has been challenged over renovations to his private home and on claims of corruption and abuse of the constitution.
President Zuma is set to stand down in 2019 and unless his successor grants a pardon, supporters fear he could face years of litigation.
And it’s not just the president. The South African police, ministers and state entities have all been sued in the past year as citizen groups become ever more aware of their rights.
And contrary to complaints logged by Afrobarometer, many cases were resolved in months if not weeks, usually with the state caving in. 
The Hague process is costly and trials can run for a decade, but in or out of the ICC, Africa has found its voice.

IMPARTIALITY
Prof Stanton still sees an area of worry.

“Judges need to be totally impartial for the system to work,” he said.

And taking on the president? Stanton says that citizens have not just a right but a duty in holding power to account.

“There should be no sacred zone. Rural folk can go to court over their environment, business people can stand up against corruption and protest groups can push human rights.

“The only real enemy is silence.”

Some say this makes lawyers rich and the country hard to govern. Maybe so, but the trend of “I will see you in court,” is growing.

And those who, just a few years ago, ruled with impunity may have to get used to being hounded by the law.