the rwandan genocide: a legal analysis
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The Rwandan genocide: a legal analysisMpfariseni Budeli a & Beauty Vambe aa Department of Mercantile Law , University of South Africa ,Pretoria, South AfricaPublished online: 20 Nov 2010.
To cite this article: Mpfariseni Budeli & Beauty Vambe (2010) The Rwandan genocide: a legalanalysis, African Identities, 8:4, 409-424, DOI: 10.1080/14725843.2010.513255
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RESEARCH ARTICLE
The Rwandan genocide: a legal analysis
Mpfariseni Budeli* and Beauty Vambe
Department of Mercantile Law, University of South Africa, Pretoria, South Africa
(Received 7 July 2010; final version received 20 July 2010)
The customary international law on genocide established at the 1948 GenocideConvention suggests that neighbouring countries that watch genocide take place inanother state and fail to take steps to stop it can also be prosecuted for allowing themassacre of people. Although this provision was not accorded a binding force, itreveals that genocide occurs within a wider political context in which states can takeaction to stop it or not. When the Rwandan genocide took place in 1994 theOrganisation of African Unity (OAU) was the supreme African body made up of morethan 50 states. However, the OAU did not mobilise its members to send troops to stopthe Rwandan genocide. This raises questions about the legality of the OAU then, andthe inefficacy of its legal mechanism or instrument with which the Organisation couldhave used to enforce its decisions. The aim of this article is to critically investigatewhether or not the OAU legal mechanism was best suited to help the OAU intervenein the Rwandan genocide. The article poses serious questions about the legalmechanism or instrument that the African Union (AU), which succeeded the OAU,has created to enforce its decisions especially in war-zone contexts. The article thenends by suggesting proposals and recommendations that the AU can adopt tostrengthen its legal mechanism or create a new legal instrument that can be enforcedby the African Court of Justice and the Peace and Security Council of the AU inanticipation of potential genocide occurring in other African states, other than that ofDarfur in Sudan.
Keywords: customary international law; 1948 Genocide Convention; OAU; legalmechanism; legal instrument; AU; African Court of Justice; Rwanda; Sudan
Genocide is regarded as an international crime and has been practised for centuries (Aust
2005, p. 270). Its definition varies among scholars. Accordingly, there is no single
definition that has been accepted as a definitive definition of genocide. In 1944, the Polish
lawyer Raphael Lemkin coined the term ‘genocide’ from the Greek, ‘genos’, which means
‘mass,’ and ‘-cide’ that implies killing (Lemkin quoted in Fournet 2007, p. 5). Lemkin
went on to define genocide as:
the coordinated plan of different actions aiming at the destructions of essential foundations ofthe life of national groups with the aim of annihilating the groups themselves. The objectivesof such a plan would be disintegration of the political and social institutions of culture,language, national feelings, religion, economic existence of the national groups and thedestruction of the personal security, liberty, health, dignity and even the life of the individualsbelonging to such groups. Genocide is directed against the national group as an entity, and the
ISSN 1472-5843 print/ISSN 1472-5851 online
q 2010 Taylor & Francis
DOI: 10.1080/14725843.2010.513255
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*Corresponding author. Email: budelm@unisa.ac.za
African Identities
Vol. 8, No. 4, November 2010, 409–424
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actions involved are directed against individuals, not in their individual capacity but asmembers of the national group. (Lemkin 1944, p. 79)
Lemkin’s definition of genocide was criticised for being too broad (Totten and Parsons
1995, p. 3). After lengthy debates on what the term ‘genocide’ means and how it should be
defined by the international community, in 1948, the United Nations adopted a Convention
on the Prevention and Punishment of the Crime of Genocide. This Convention came up
with what is perceived as the legal definition of genocide although there are some criticisms
of it. According to the Genocide Convention, genocide means any of the following
acts committed with the intent to destroy, in a whole or in part, a national, ethnical, racial or
religious group as such:
. Killing of members of the group;
. Causing serious bodily or mental harm to members of the group;
. Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
. Imposing measures intended to prevent births within the group;
. Forcibly transferring children of the group to another group. (Article 2 of the
Genocide Convention).
Genocide is sometimes grouped together with crimes against humanity, and like the latter,
it can be committed in peacetime as well as during an armed conflict (Aust 2005, p. 270).
However, what distinguishes it from the crimes against humanity is that the acts must be
committed ‘with intent to destroy a group of people’. The intention to ‘destroy’ means the
physical and the biological destruction of all or part of the group (Shaw 2008, p. 432). As
far as the material elements of the crime are concerned, killing is clearly the key conduct
involved and it has been held that the act in question must be intentional if not necessarily
premeditated (Shaw 2008, p. 432).
This paper specifically deals with the genocide that occurred in Rwanda in 1994. It
questions the effectiveness of the African Union (AU) peacekeeping instruments. It further
provides some recommendations for the prevention of genocide and other crimes against
humanity in Africa.
The Rwandan genocide: a brief background
Rwanda is one of the smallest countries in Central Africa. It was administered by Belgium
from 1919 under the League of Nations mandate until 1962 when it gained its
independence. It is about a third the size of Belgium. Most of the Rwandan population
belong to the Hutu ethnic group who are traditionally crop farmers. For many centuries,
Rwanda attracted Tutsis who are traditionally herdsmen from Northern Africa. For more
than 600 years, the Hutus and the Tutsis shared the business of farming, their language,
their culture and their nationality.
Due to the nature of their historical pastoral or agricultural roles, the Tutsis tended to
be landowners and Hutus the people who worked the land. When the European colonists
moved into Rwanda, a wedge was driven between the Hutus and the Tutsis. As it was the
practice of the colonial administrators to select a group to be privileged and educated
intermediaries between the governor and the governed, the Belgians chose the Tutsis.
The Belgians issued each Rwandan with an identity card. The Belgian considered the
Tutsis to be the superior race and systematically imposed their authority over the Hutus.
This introduction of class consciousness unsettled the stability of Rwandan society.
Some Tutsis began to behave like aristocrats and the Hutus felt treated like peasants.
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As a result, the Hutus felt oppressed and, in 1956, their rebellion began. By 1959, they
had seized power and were stripping the Tutsi communities of their lands. Many Tutsis
retreated to exile in neighbouring countries where they formed the Rwandan Patriotic
Front (RPF).
In 1961, elections were held in Rwanda and the first Rwandan Republic was declared.
Dominique Mbonyumutwa was named the president for the transitional government. After
gaining independence in 1962, a politically inexperienced Hutu government began to face
internal conflicts. The government of this time also furthered the Belgian colonial
government’s policy of labelling people with ethnic identify cards and used this practice to
attack mixed marriages between the Hutu and the Tutsis. In 1973, Juvenal Habyarimana, a
Hutu, overthrew the government claiming that the government was ineffective and riddled
with favouritism.
In 1978, Rwanda, under the leadership of Juvenal Habyarimana, went to polls.
The overwhelming majority endorsed the constitution and confirmed Habyarimana as the
president. Habyarimana was re-elected in 1983 and again in 1988 when he was the sole
candidate.
In 1990, President Habyarimana in responding to public pressure for political reform,
announced his intention to transform Rwanda’s one-party state into a multiparty
democracy.
Again in 1990, the Rwanda Patriotic Front (RPF) attacked the Hutus and that was
the beginning of a civil war in Rwanda. A ceasefire was achieved in 1993, followed
by the United Nations (UN)-backed efforts to negotiate a new multiparty constitution,
but Hutu leaders opposed any Tutsi involvement in government. On 6 April 1994, a
plane carrying Rwanda’s president was shot down when he was returning from signing
the Arusha agreement with the RPF. The Tutsis were accused of killing the president
Juvenal Habyarimana who was a Hutu. As a result, the Hutu civilians were told by radio
that it was their duty to wipe the Tutsis out. That was the beginning of genocide in
Rwanda. The aim was to kill every Tutsi around the country and all Hutus that were not
supporting them. The 7th of April was identified as the day on which the genocide
officially began. This genocide was carried out entirely by hands, often using machetes
and clubs. Soldiers and police officers encouraged ordinary citizens to take part in the
murder. In some cases, Hutu civilians were forced by military personnel to murder their
Tutsi neighbours. Participants were often given incentives, such as money or food, and
some were even told that they could appropriate the land of the Tutsis they killed.
Accordingly, in 100 days, an estimated 800,000 Tutsi men, women and children, and
moderate Hutus were murdered.
The Rwandan genocide ended on 4 July when the RPF rebels led by General Paul
Kagame captured the capital city Kigali and ousted the extremist government. After the
genocide, President Bizimungi took over.
The international legal context of the Rwandan genocide: the 1948 United Nations
Convention, 1998 Roman Statute and International Criminal Court (ICC)
In 1948, the international community adopted a Convention on Genocide. According to
the preamble to the Convention, genocide is a crime in international law and is contrary to
the spirit and aims of the United Nations and is condemned by the civilised world. The
member states confirmed that genocide, whether committed in time of peace or in time of
war, was a crime under international law which they undertook to prevent and to punish
(Article 1).
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The Convention places criminal responsibility on all individuals with no exception for
heads of states and public officials (Article 4). However, Article 5 left the enforcement of
the Convention to the courts of the party in whose territory the crime was committed.
According to Article 6, genocide shall not be considered a political crime for extradition.
Rwanda became a member of the United Nations on 18 September 1962. It acceded to the
Convention on Genocide on 16 April 1975.
The prevention and the prosecution of genocide as an international crime were
reinforced by the establishment of the International Criminal Court (ICC) whose Statute
was signed in Rome, Italy, in 2008. The ICC is inter alia mandated to ‘try an individual for
the crime of aiding, perpetrating or inciting genocide’. Accordingly, individuals can now
be tried ‘by a competent tribunal of the State in the territory of which the act was
committed, or by such international penal tribunal as may have jurisdiction’ (Slade 2007,
p. 155).
Apart from individuals, national governments that are found to be aiding and abetting a
special genocidal act may also be indicted for inciting or participating in genocidal acts
(Karnavas 2007, p. 101). Foreign governments that aid genocidal acts can also be indicted,
although in the case of the Rwandan genocide, the well-documented complicit roles of the
USA, Britain and France has not attracted punishment of their governments (Dallaire and
Manocha 2007, pp. 61–71). This lack of bringing the USA, France and Britain to account
legally for their roles in the Rwandan genocide suggests the limitations and some
reservations inherent in the enforcement of the Genocide Convention. It is also possible
for a national State to exercise ‘its own criminal jurisdiction over those responsible for
internal crimes (Slade 2007, p. 163). From a legal point of view, the international
community should have the will-power or resolve to stop genocide soon before or
immediately after it begins. Further, ‘whatever else international law does, it should have
the wherewithal to bring legal proceedings against the perpetrators’ (Slade 2007, p. 149).
But Max du Plessis reveals that there is a contradiction at the heart of implementing the
international genocide law since by definition, and in terms of the admissibility of the
crime, in many cases:
The international Criminal Court is not expected to supersede national prosecutions ofpersons guilty of international crimes [because] investigations and prosecutions underthe Rome Statute are premised on the principle of ‘complementarity’ whereby the Courtis required to rule a case inadmissible when it is being appropriately dealt with by anational justice system. States Parties to the Court therefore retain their right andresponsibility to investigate offences committed on their territory, or where their nationalsstand accused of committing ICC crimes anywhere else in the world. (du Plessis 1994a,pp. 545–568)
Although at the time of the genocide Rwanda was already a member of the UN, it is
unfortunate that during the genocide, the international community did not intervene.
Initially, the international community categorised the killing as a breakdown in the
ceasefire between the Tutsis and the Hutus. Throughout the massacre, both the UN and the
USA carefully refrained from labelling the killing as genocide, which would have
necessitated some kind of emergency intervention. The UN Security Council responded to
the worsening crisis by voting unanimously to abandon Rwanda. Accordingly, the
Rwandans were left alone by the international community. UN troops withdrew from
Rwanda immediately.
These legal strictures are important to highlight because they seem to have been a
challenge to the working of the Organisation of African Unity (OAU) and continue to
undermine what the AU can achieve in the fight against genocide in Africa.
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The OAU, decolonisation of Africa and the Rwandan genocide
The OAU was established on 25 May 1963 at Addis Ababa, Ethiopia with the purposes of
promoting the unity and solidarity of the African States, defending the sovereignty of
members, eradicating all forms of colonialism, and promoting international support for the
Charter of the United Nations and the Universal Declaration of Human Rights (Article
2(1) OAU Charter of 1963). The OAU was based on a number of principles, including the
following:
. Non-interference in the internal affairs of States. (Article 3(2) of the OAU Charter)
. Respect for the sovereignty and territorial integrity of each State and for its
inalienable right to independent existence. (Article 3(3) of the OAU Charter)
. Peaceful settlement of disputes by negotiation, mediation, conciliation and
arbitration. (Article 3(4) of the OAU Charter)
. Unreserved condemnation in all its forms, of political assassination as well as of
subversive activities on the part of neighbouring States or any other State. (Article
3(5) of the OAU Charter)
The OAU principles were primarily based on liberating African countries from colonial
oppression and fostering their social and economic self determination. Thus the OAU was
the institutionalisation of pan-African principles and it sought to encourage the tradition
of solidarity and cooperation among Africans. These principles were incorporated into
the OAU’s permanent mechanism or instrument for peaceful resolution of conflicts in
Africa. Hence, from 1990 until 1993, the OAU member states also worked to provide a
mechanism on conflict prevention, management and resolution.
The declaration of the Assembly of Heads of State and Government on the
establishment within the OAU of a mechanisim for conflict prevention, management, and
resolution (OAU MCPMR), was adopted in Cairo, Egypt on 30 June 1993. The OAU
MCPMR states that the mechanism will be guided by the objectives and principles of the
OAU Charter, in particular the sovereign equality of member states, non-interference in
the internal affairs of the states, the respect of the sovereignty and territorial integrity of
member states, their inalienable right to independence existence, the peaceful settlement
of disputes as well as the inviolability of borders inherited from colonialism (Article 14 of
the MCPMR).
Of far-reaching consequences were the provisions in the permanent mechanism for
peaceful resolution of conflicts which stated that:
. It [the mechanism] will also function on the basis of the consent and the cooperation
of the parties to a conflict.
. In the event that conflicts degenerate to the extent of requiring collective
international intervention and policing, assistance or where appropriate the services
of the United Nations will be sought under the general terms of the Charter. (Article
16 of the MCPMR).
Rwanda became a member of the OAU at its inception in 1963. Arguably, the Rwanda
occurrences of genocide pre-exist (Prunier 1995, Pottier 2002, Mamdani 2001, Newbury
2001, Nkunzimana 2009) the formation of the OAU in 1963. However, it was the
Rwandan genocide that took place in a space of one hundred days between April 1994
until July 1994 that exposed the fundamental limitations of the OAU’s instrument or
permanent mechanism for peaceful resolution in Africa. Having pronounced the
principle of ‘non-interference’ in member states, the OAU found itself unable to
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intervene in the Rwandan genocide that was projected as a domestic conflict by the
Habyarimana government, and therefore was depicted as a conflict that could be solved
using Rwanda’s municipal laws. The failure of the OAU’s permanent mechanism for
resolving conflicts to clarify under what conditions respecting the sovereignty of a
member state should be upheld was brought home to the OAU when the Hutu extremist
government started killing its own people. The OAU failed to censure its member state
that was violating Tutsis and moderate Hutus, let alone intervene militarily to stop
the genocide. The OAU’s overriding concern in wanting to see the decolonisation of
South Africa prevented the organisation from taking seriously the mass killings of Tutsis
and moderate Hutus in Rwanda. When democratic South Africa was born in 1994,
independent Rwanda was engulfed in a fratricidal genocide that killed nearly one
million people.
Squeezed between the need to uphold the territorial integrity of Rwanda with a sitting
government that was a member of the OAU on the one hand, and the demands to recognise
the RPF as a liberation movement on the other, the OAU was immobilised and could not
act effectively during the 1994 Rwandan genocide (Pottier 2002). Or rather, at law, the
OAU acted by supporting the Hutu extremists through not interfering militarily or publicly
denouncing the violations of individual rights by the state (Zegeye and Vambe 2009). The
OAU had no funds to operationalise the instrument of the ‘permanent mechanism’ for
peaceful resolution of African conflicts in Rwanda. With no money, the OAU could not
create a standing army from its member states; and if they were seen intervening in the
Rwandan genocide, this could have been interpreted as not only undermining the
municipal laws of a member state but setting African governments against one of their
own, even when that one was under an authoritarian and genocidal leadership. The belief
in the corridors of the OAU that internal conflict in Rwanda could be solved on the basis of
‘consent and cooperation of the parties to [the] conflict’ (OAU 1996, p. 13) reveals that the
organisation did not understand the new power dynamics in Africa that independence had
promoted. Since membership of the OAU was voluntary, it was not binding and leaders in
Rwanda could easily flout the founding principles with impunity.
In the absence of a legal instrument or permanent mechanism binding all to a set of
rules – the breaching of which would attract enforceable trade sanctions or military
interventions – Habyarimana’s government did not see the OAU principles as a deterrent
to its genocidal impulse. The idealistic belief of the OAU that ‘international intervention
and policing’ would be mobilised under the United Nations flew in the face of reality since
the United States of America, Britain, France, China and Belgium were deeply involved in
the Rwandan genocide through withholding vital information, and supplying arms sales to
the genocidal government in Rwanda..
The OAU was criticised as having been a toothless talking-shop, a club of presidents
and prime ministers who informally embraced a policy of non-intervention in the internal
affairs of their member states. It lacked the political will or means to foresee or intervene
in the Rwandan crisis. Thus, the failures of the OAU in the Rwandan genocide are in fact
the weaknesses inherent in an unreformed and narrow policing instrument, previously
geared to promoting pan-African nationalist identities, but now being applied in a
post-independence African political context. This context required a totally new set of
legal mechanisms or instruments to rein in errant leaders and governments bent on
undermining the constitutional rights, freedom of expression and right to life of the people
who are citizens of the OAU member states. As du Plessis argues, not only were the goals
of pan-African ideals of securing independence for African peoples and uniting against
colonial subjugation, no longer sustainable but:
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Increasingly the OAU came to be criticized for its failure to respond to serious conflictsbetween member states [and within member states]. In addition, several of Africa’s leaders inthe fight for independence led their newly liberated nations into totalitarianism, with anineffectual OAU doing little to put a stop to this African malaise . . . the OAU found itselfcaught between superpower rivalries during the Cold War, that ideological clashes led todebilitation of the OAU as it failed adequately to respond to civil wars that were fueled byEast/West interests (such as in Angola and Mozambique) and [Rwanda) . . . the OAU sufferedfrom under-funding by member states, and an unwieldy Assembly structure, in which the 53members inclined towards preserving national interests and sovereignty at the expense of atrue commitment to regional cooperation and finding African solutions for African problems.(Du Plessis 1994a, pp. 549–550)
In other words, despite having succeeded in promoting political decolonisation in Africa,
the OAU did not possess a robust legal instrument or permanent mechanism with legally
binding power among its members to enforce the rule of law, recognition of individual
rights and protection of citizens from the cruel municipal laws created by their leaders.
According to Kupe, clear ‘regulatory frameworks’ (2005, p. 193) backed by detailed
provisions of legal instruments or permanent mechanisms to guarantee peace in Africa is
what the AU – which succeeded the OAU in 2002 – needs in order to anticipate and
prevent genocidal conflicts in some parts of Africa or a repeat of the Rwandan genocide.
An exploration of the AU legal instruments for conflict resolution between African states
and within African states can shed light on the immense task that the AU faces in enforcing
rules that prevent genocide in Africa.
AU structures and the promotion of human rights, peace, and security in Africa
As already pointed, the AU replaced the OAU and in effect took on all its assets and
liabilities. The AU was officially inaugurated on 11 July 2002 in Durban, South Africa.
It was brought into being through the Constitutive Act which was signed in Lome, Togo
in 2000. The AU Constitutive Act replaced the Charter of the OAU.
Article 3 of the Constitutive Act of the AU also highlights the significance of
promoting ‘peace, security, and stability on the continent’. The AU also aims to:
. Promote democratic principles and institutions, popular participation and good
governance (Article 3(g) of the Constitutive Act); and
. Promote and protect human and people’s rights in accordance with the African
Charter on Human and People’s Rights and other relevant human rights instruments
(Article 3(h) of the Constitutive Act). (AU 2000a, p. 5).
Despite the fact that the principle of ‘non-interference by any Member State in the internal
Affairs of another’ is entrenched in Article 4 of the Constitutive Act of the AU, the
Assembly of the AU, which is the AU supreme decision-making body, can ‘at the request
of any Member State and on approval by a two-third majority of the Member States . . .
meet in an extraordinary session’ and approve of minimal interference in the affairs of
another country. This provision does not cover a situation where a leader of a member state
persecutes his people, and the people, in turn, violently removes him/her, since Article 4 of
the AU Constitutive Act can condemn and reject any unconstitutional change of
government even though it may be in the interests of the people. These are some of
the contradictions in the responsibilities of some AU organs. Two of these AU organs are
particularly mandated to deal with genocide, peace and security in Africa. These are the
Court of Justice and Human Rights and the Peace and Security Council. The functions of
the African Court of Justice are, among others, to:
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. Collect documents and undertake studies and researches on human and people’s
rights in matters in Africa;
. Lay down rules aimed at solving the legal problems relating to human and people’s
rights;
. Ensure protection of human and people’s rights; and
. Interpret all the provisions of the Charter.
The establishment of the Court of Justice of the AU has received mixed reactions.
According to Dugard, the establishment of the Court in 2004 ‘shows the willingness of the
States to adopt a more judicial and less political way of settling inter-African disputes’
(Dugard et al. 2006, p. 1). However, Dugard was cautious when noting that ‘the efficacy of
the Court depended on its ability to receive demands from individuals on human rights
issues’ (Dugard et al. 2006, p. 3).
A position paper created by the German Federal Ministry for Economic Cooperation
and Development (BMZ) in close cooperation with the African Court on Human and
People’s Rights suggests that enhancing the capacity of the African Court of Justice can
enable it to develop human rights standards in Africa (http://www.gtz.de/en/weltweit/
afrika/25984.htm, accessed on 10 July 2010).
Despite these positive appraisals of the Court of Justice of the AU, the Court does not
have a solid or sufficiently detailed legal instrument or mechanism to compel member
states always to abide by the Court’s decisions. The Court also lacks a robust legal
mechanism to protect from its member states the human rights of the citizens who perceive
that their rights have been violated by their states.
For example, Pityana takes issue with the Court and suggests that ‘extraterritorial
jurisdiction is a concept that has not yet received wide acceptance in Africa’ (Pityana
2003, p. 4) and this is confirmed in Article 4(g) dealing with the AU principle of ‘non-
interference’ in the internal affairs of a member state. Although Article 4(h) of the AU
provides for AU interference in ‘respect of grave circumstances, namely: war crimes,
genocide and crimes against humanity’, this is only possible when the state party declares
that the AU has jurisdiction over municipal laws. It would not be ‘within the competence
of the court to impose a treaty obligation on states that have not assumed the duty by
themselves’ (Pityana 2003, p. 6). In the event that there is a dispute between a state party
and its citizen, in which the state is the aggressor, the latter can choose to exhaust domestic
remedies in the ‘full’ knowledge that these will not implicate it. The provision of Article
34(3) of the AU Protocol also suggests that it is the state party that has the power to make a
declaration accepting the competence of the Court to receive cases under Article 5(3) of
this Protocol. This tends to limit access to and power of the court especially when the state
party or member state municipal laws are not in ‘conformity with its international treaty
obligations’ (Pityana 2003, p. 7).
In other words, the fact that ‘individuals and NGOs can only submit cases against
states if the state concerned has made a declaration accepting the competence of the Court
to do so under Article (30) (f) of the single Protocol . . . renders access to justice
illusory for human rights victims’ (http://www.interights.org/AfricanSingle
ProtocolAdopted/index.htm, accessed on 17 May 2010).
The African Union Court of Justice
Article 4 of the AU Constitutive Act provides for ‘the right of the Union to intervene in a
Member State pursuant to a decision of the Assembly in respect of grave circumstances,
namely: war crimes, genocide and crimes against humanity’(Article 4(h) of the
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Constitutive Act). Article 4 also promotes ‘respect for the sanctity of human life,
condemnation and rejection of impunity and political assassination, acts of terrorism and
subversive acts’.
The African Union’s insistence on ‘peaceful co-existence of Member States and their
right to live in peace and security’ (Article 4) suggests that African states can be at each
others’ throats. This again justifies the creation of the Court of Justice of the Union to
interpret conflicts which is aided by the Peace and Security Council of the AU to clearly
define ‘a mechanism for determining situations representing a serious threat to legitimate
order and the steps necessary to restore peace and stability to the member states, in close
cooperation with the UN Security Council’ (Du Plessis 1994a, p. 553).
Muwanga (2006, p. 3) suggests operationalising the juridical power of the African
Court on Human and People’s Rights resides in the willingness of state parties to submit
themselves to the universal jurisdiction of the Court which many African states are too
often reluctant to do. More sustained criticism of the African Court of Justice has focused
on the failure of the AU organ to deliver legally authoritative and conclusive decisions that
are binding on the member states. For example, Juma suggests that the restrictive access of
individuals and affiliated NGOs to ‘the Court may undermine the utility of the Court’
(Juma 2000, p. 1), because the Court’s ‘scheme of access to human rights court in which
primacy is given to the state defies the conventional understanding of international human
rights law’ (p. 3).
Apart from the lack of clarity suggested in the terms ‘human’ and ‘people’s rights’
preferred by the Court but which suggest mutual exclusivity, in Africa ‘NGOs have played
a phenomenal role in the African human rights system, as evidenced by the fact that most of
the individual communications before the African Commission have been lodged by or
at the initiative of these organizations’ (Juma 2000, p. 3). In other words, against the
logic of the Protocol of the Court, state parties may decide to ‘investigate domestically,
than initiate a case against itself at an international court as contemplated by article (5) (1)
(c–d) of the Protocol’ (Juma 2000, p. 4). This is so because in many cases violations of
citizens’ rights are instigated by the state party or ‘in some cases, states may have no interest
if such violations do not take place in their territories’ (Juma 2000, p. 16). Therefore,
the Court of Justice should work and ‘exercise authority broader than the sovereign state’
(Juma 2000, p. 4).
These observations on the limitations of the legal instrument or mechanism of the
African Court which it could use to contain threats from external and internal forces within
its member states are valid; they beg for a more robust instrument to be put in place even
when one recognises the caveat entered by Juma which is that: ‘The African Court is in its
infancy stage’ (Juma 2000, p. 5).
The AU Peace and Security Council
The Peace and Security Council is one of the institutions created by the AU to respond to
peace and security challenges on the continent. The AU intends that the Peace and
Security Council will be able to intervene to prevent crimes against humanity in Africa.
Accordingly, a Protocol Relating to the Establishment of the Peace and Security Council
(hereinafter referred to as the Protocol on Peace and Security) was adopted and, as a result,
the Peace and Security Council was launched in May 2004. As already pointed out, the
mandate of the Peace and Security Council is to promote collective security and enhance
an early-warning framework to facilitate the timely and efficient response to conflicts and
crisis situations in Africa.
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At their first Ordinary Session of the Assembly of the African Union held on the 9 July
2002 in Durban, South Africa, AU member states agreed that the organ on Peace and
Security Council of the AU would:
. Contribute to conflict prevention, management and resolution in the maintenance
and promotion of peace, security and stability on the continent and the need to
develop formal coordination and cooperation arrangements between Regional
Mechanism and the Union.
. Make up a collective security and early-warning arrangements to facilitate timely
and efficient response to conflict and crisis situations in Africa (the Protocol on
Peace and Security).
. Anticipate and prevent conflicts. In circumstances where conflicts have occurred,
the Peace and Security Council shall have the responsibility to undertake peace-
making and peace-building functions for the resolution (Article 3(b) of the Protocol
on Peace and Security).
. Establish a Panel of the Wise that shall advise the Peace and Security Council and
the Chairperson of the Commission on all issues pertaining to the promotion, and
maintenance of peace, security and stability (Article 11(3) of the Protocol on Peace
and Security).
. Create a Continental Early Warning system (Article 12 of the Protocol on Peace and
Security) responsible for analysing developments within the continent and to
recommend the best course of action.
. Establish an African Standby Force (Article 13) for ‘preventive deployment in order
to prevent (1) a dispute or a conflict from escalating, (2) an ongoing violent conflict
from spreading to neighbouring areas or States, and (3) the resurgence of violence
after parties to a conflict have reached an agreement.
Article 7(e) of the Protocol on Peace and Security gives the Peace and Security Council,
the power to recommend to the AU Assembly pursuant to Article 4(h) of the Constitutive
intervention, on behalf of the Union, in a Member State in respect of grave circumstances,
namely, war crimes, genocide and crimes against humanity. Article 7(g) of the Protocol on
Peace and Security provides that the Peace and Security Council can ‘institute sanctions
whenever an unconstitutional change of takes place in a member state’.
The AU member states committed themselves to providing the necessary funding of the
organ of the Peace and Security Council. Article 21(2) and Article 17(2) of the Protocol on
Peace and Security suggest that, where necessary, recourse will be made to the United
Nations to provide the necessary financial, logistical and military support for the AU’s
activities . . . in keeping with the provisions of Chapter VIII of the UN Charter on the role
of regional organisations in the maintenance of international peace and security.
Despite these lofty ideals, the AU’s Peace and Security Council has faced some
numerous challenges, the most important of which relate to:
. Absence of political will to intervene in certain conflict areas such as the 2008
Zimbabwe presidential elections.
. Lack of funding because most of the AU state parties are not paid-up members.
. The reluctance of the AU’s regional organs of the Peace and Security Council to
actively and collectively participate in solving the conflicts occurring in any one region.
Instead of strengthening the Peace and Security Council of the AU, regionalisation of
the structure of this organ actually foments division so that it is rare that North Africa,
for example, will participate in solving problems in Southern Africa and vice versa.
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Also, the main obstacle to the realisation of an effective early-warning system in Africa is
political rather than simply technical, sociological or financial. An obvious example is the
way in which the AU Commission and its member states have blocked an inquiry and
possible trial, even in the African court, of the Sudanese president for genocide and crimes
against humanity committed in Darfur and southern Sudan. In fact, the AU’s Peace and
Security Council resolution on the Sudan indictment falls short of openly declaring its
protection of President Al Bashir (Zegeye and Vambe 2009). Some of the resolutions of
the AU’s Peace and Security Council that undermine the human rights of the Darfurians
and the Christian Africans in Southern Sudan are couched in legal language designed to
prevent prosecution. For example, the 21 July 2008 meeting of the organ held in Addis
Ababa, Ethiopia reiterates the need to ‘combat impunity and promoting democracy’ in
Sudan (Article 2) and yet the same AU, in Article 10(1), requests the UN Security Council
‘to defer the process initiated by the ICC, taking into account the need to ensure that the
ongoing peace efforts are not jeopardised, as well as the fact that, in the current circum-
stances, a prosecution may not be in the interest of the victims and justice’.
In reality, President Al Bashir went on to ‘win’ an election in 2010 which some of his
previous historical victims have described as rigged. The double standards of the AU and its
manipulation of the organ of the Peace and Security Council in dealing with tyrannical
leaders backed by powerful resources such as oil compromises the aims of the AU to
strengthen its legal instrument or mechanism (Zegeye and Vambe 2009). This raises the
question as to whether or not the so-called African Peer Review Mechanism (APRM) has
any wide chances of promoting democracy in Africa or of protecting leaders who can violate
their citizens with impunity.
The African Peer ReviewMechanism and the search for a viable legal instrument for
good governance and development in Africa
The story of the African Peer Review Mechanism (APRM) is even sadder because it reveals
the height of hypocrisy of both the member states and the AU that is the ultimate guarantor of
that process (Kupe 2005, Zegeye and Vambe 2009). For example, Ghana, which is most
cited as having gone through a successful peer review process, limited this process to
economic development. Even in this area, Ghana has not, by the admission of its ordinary
citizens, succeeded in transferring economic wealth into the hands of the majority. This is a
crucial test because the declared aim of the establishment of the AU was to further the
economic progress of African countries so that this would benefit the vast majority who do
not have easy access to tertiary education, good health and the enjoyment of unfettered
political choice of being governed by those whom the citizens would wish to be governed by.
The story of Kenya is also illustrative of uncritical approaches to the process of the
APRM. In 2007 it was announced in major African newspapers that Kenya had also
followed in the footsteps of Ghana in carrying out a successful peer review process. But
the violence that characterised the Kenya elections that took place in December 2007 and
left more than 1500 people dead or missing and 350,000 displaced due to inter-ethnic and
politically inspired conflicts poured cold water on what was supposed to be another of the
AU’s success stories with the APRM (Zegeye and Vambe 2009). In Kenya, the sinister
nature of the post-electoral violence was not only that it was organised along ethnic lines;
even the chairperson of the AU who wanted to visit Kenya was told that he was not
welcome and he did not go. These stories of the legal and monumental failures of the
APRM as an instrument of legal accountability for the AU are cited here not to celebrate
the failure of the AU’s efforts at seeking to strengthen its legal instrument so as to bind its
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members to a common code of political behaviour. Rather, these legal fiascos of the
APRM suggest that there are certain key elements of a viable legal instrument or
mechanism which the AU and its member states have not taken into account.
Kajee (2007, p. 6) opines that the ‘responsibility for the political aspects of peer review
have been handed to AU institutions (e.g. PAP) that are relatively new and perceived as being
ineffectual’ (p. 20). In the absence of political will of many African countries to implement
the APRM, there is little probability that the system can improve good governance in African
countries. In the absence of mass education about the importance of the APRM for the
majority of African people who should benefit from it, there is all probability that the elite
leadership will sweep the instrument under their political carpets and pretend that it does not
exist in their countries. In the absence of a harmonised and acceptable political culture of
accountability in Africa, there is the probability that African states can even foment violence
in other member states of the AU. For example, until such time as a country such as the
Democratic Republic of Congo (DRC) can control all its territories so that it is not used as
rear base by Interahamwe elements to destabilise Rwanda, the latter cannot enjoy peace as
guaranteed in Article 4(1) of the Constitutive Act of the AU. Equally, until Rwanda also
ceases to bankroll and also provide political succour to the likes of Laurent Mkunda, who
killed innocent civilians in the DRC, ‘acts of terrorism and subversive activities’ deplored in
Article 4(o) can continue undermining the sovereignty of the DRC.
Until President Gaddafi of Libya stops the sabre-rattling in encouraging the division of
Nigeria into the north and south, Nigeria will not stop having bloodletting blamed on
religious difference. Until Zimbabwe puts in place instruments that encourage the
development of legal infrastructures that respect the rule of law in that country and stops
persecuting oppositional voices, then its citizens will continue not to enjoy ‘democratic
principles, human rights’ that are guaranteed in Article 4(3) of the AU Constitutive Act.
Until South Africa eventually gets to the bottom of the perpetrators of xenophobia
which saw 63 people die in 2008, and thoroughly investigates a resurgence of the same
crime in 2010 after the World Cup, in which black foreigners from other African countries
were intimidated by some local businesspersons, politicians and ordinary citizens who
harbour purist, extremist and fundamentalist ideas of ethnicity, then talk of African
renaissance and the APRM is a dead letter. This impacts on the democratic rights of
refugees of whatever status to enjoy ‘human and people’s rights in accordance with the
African Charter on Human and People’s Rights and other relevant human rights
instruments’ as contained in Article 3(h) of AU and correctly interpreted by the African
Courts. As Juma further argues, the APRM as a fundamental legal instrument for enforcing
the decisions of the Assembly through the Peace and Security Council of the AU can also be
strengthened when it becomes in ‘strictu sensu binding’ (Juma 2007, p. 20) on all members
of the AU.
Recommendations on a strengthened legal instrument of the AU
In the aftermath of the Rwandan genocide, the AU held that the ‘Rwandan genocide could
have been prevented by those in the international community who had the position and the
means to do so’ (AU 2000b, p. v). This statement reveals everything about the AU’s
misconception that the ‘international community’ is some ‘body’ somewhere, there, out of
Africa, in Europe and America. In our recommendations, we argue that the African
countries that watched as the Tutsis and moderate Hutus were being killed in Rwanda in
1994 are a significant part of the international community that did not act to stop, or rather
acted by not stopping the genocide.
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As the AU conceded, genocide in Rwanda was preventable (AU 2000b). However, ‘no
single formula exists that will prevent the recurrence of a comparable disaster anytime in
the future whether in Rwanda or elsewhere’ (AU 2000b, p. 340). The members of the
International Panel of Eminent Personalities (AU 2000b, pp. 288–291), appointed by the
AU to investigate the Rwandan genocide, recommended inter alia that:
. The rule of the political majority [in Rwanda] must be respected while the rights of
minorities must be protected;
. All leaders of the genocide must be brought to trial;
. In the name of both justice and accountability, reparations are owed to Rwanda by
actors in the international community for their roles before, during and since the
genocide;
. A common human rights curriculum with special reference to the genocide and its
lessons should be introduced in all schools in the Great Lakes Region;
. The AU mechanism for the Prevention, Management and Resolution of Conflicts
needs to develop an ‘early warning system for all conflicts based on continuous and
in-depth country political analysis’.
These recommendations from the AU are commendable. However, they tend to focus
mainly on Rwanda. This of course is understandable because the research was conducted
for the Rwanda genocide. However, there is a need to emphasise that the recom-
mendations should also be applied to the rest of Africa’s trouble spots such as Sudan,
Zimbabwe, Kenya, Somalia and Ethiopia and most recently South Africa. Otherwise, as
Juma notes, if the violations of the citizens of Africa perpetrated by their states are not
noted and addressed, ‘then the primacy granted to State Parties to lodge cases before the
African Court, and the discretion to recognise the competence of the Court to handle
individual complaints must be considered a paradox to internal and regional human
rights protection’ (Juma 2000, p. 16). This can lead to legal paralysis of the functions of
the organ of the Peace and Security Council of the AU. To counter this negative
eventuality some more progressive recommendations can be made. For example:
. There is need for Africa’s media to hold periodically massive information
campaigns about how the structures of AU should work. These campaigns should
aim to inform Africa’s citizens about the need to clamour for democratic institutions
in their own countries.
. There is need to harmonise electoral laws in the member states across Africa and
align them to the democratic ideals espoused in the AU Constitutive Act of 2000.
While municipal laws are determined by the member states, the AU Court of Justice
must find a way of becoming a superior authority and the ultimate legal arbiter in
questions relating to the respect of national sovereignties, electoral laws and
educations of its member states.
. Perpetrators of crimes against humanity such as General Al Bashir should be tried in
Africa by African courts so that African people view the process of upholding the
legal instrument or mechanism taking place in Africa, led by independent African
jurists located in Africa.
. European and American jurists experienced in handling cases of holocaust and
genocide can be consulted.
. A minimum stipulated amount of funds for peace-keeping and peace-making
missions within Africa must be paid to the AU Commission by the AU state parties,
and this must be made compulsory.
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. Sanctions must be contemplated as the first deterrent measure if a member state
violates its people or another state without provocation.
. The issue of regional Courts of Justice must be revisited because it is leading to the
balkanisation of African countries instead of fostering close cooperation. We have
seen how North Africa views problems in SADCC as a Southern African affair. This
undermines the spirit of collective ownership of the legal instrument that the AU
Court of Justice would want to use in cases of fractious disputations within a
particular country or region.
. The AU must lead and not be led by the UN in peace missions that concern Africa
because the UN is not and has never been a neutral body on matters concerning
Africa.
. An African standing force modelled along the lines of NATO forces must be
expanded, and well resourced in anticipation of conflicts in parts of Africa.
. Most importantly, it is the citizens of the member states who have the real mandate
to change governments and hold their leaders accountable to issues of democracy
and good governance.
. The AU should work closely with civic organisations to help monitor the
implementation of the AU legal mechanism for peace and security.
. The AU should adopt an expanded understanding of what constitutes genocide; this
means going beyond counting the dead bodies, but actually to understand the
elements of genocide that arise from the epistemic conditions that make a genocide,
whether political, physical or cultural, a possibility.
Conclusion
Judging from the repetition of acts of genocide that are happening in Sudan today, it
appears Africa has not learnt much from the tragic Rwandan genocide of 1994. It appears
that the AU’s legal instrument or mechanism which should be enforced to ensure peace
and security within member states has not sufficiently been provided with the commit-
ment, goodwill, and financial resources to strengthen it.
The aim of this article was to call for further tightening of the screws within the AU
legal, peace and security systems which should be depended upon in times of crises. It was
noted that the AU is held hostage by its very own members who can flagrantly disregard
obeying and conforming with the provisions that they signed up to when the AU
Constitutive Act was put in place in 2000. It was also suggested that the AU should devise
a mechanism to make membership of the AU compulsory. If this fails, at least the African
countries that do sign up to become members of the AU should be forced to abide by its
instruments.
One way of doing this is to disallow any former African leader becoming chairperson
of the AU since there is at the AU presently an ugly culture for covering up for and
protecting African presidents who violate their citizens’ human rights.
The article argued that the AU’s overriding concern with economic progress must
be revised because this cannot happen in a political context of mayhem. Emphasis
must be placed on educating African citizens about human and people’s rights because
up to now most Africans have been cowed into submission by their totalitarian
leadership. The AU Commission must realise that the power to make the legal instrument
that promotes peace and stability in Africa work resides with it as much as it does within
the institutional arrangements and willingness of African leaders to provide good
governance.
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At a very important level, the AU structures can only be judged by how much they protect
individual rights of African citizens and not by insisting on the empty rhetoric of African
unity. Unity and uniformity are two different concepts. The AU must reform and devolve
power to the African citizens so that its leadership role is strengthened and becomes more
democratic. Otherwise, genocide can happen again in Rwanda or anywhere else in Africa.
Notes on contributors
Mpfariseni Budeli is Associate professor at the Department of Mercantile Law, College of Law,University of South Africa, LLB LLM (University of the North), PhD (University of Cape Town),and admitted attorney of the High Court of South Africa.
Beauty Vambe is a qualified teacher in English Language and Literature from the University ofZimbabwe, Belvedere College. She is presently a law student at the University of South Africa. Shehas published on media and copyright law in MUZIKI: journal of music research in Africa (2006)and on indigenous law in the Icfai University journal of Commonwealth literature.
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