The Rule of Law on the African Continent

A synopsis of the Rome Statute and its interplay with the African Union.


The voices asking for freedom grow ever louder in these troubling times. They range from refugees fleeing ISIS to tax payers seeking some incentive to earn an income. But a particular group has started chanting very loudly over the last weeks for freedom from “Western powers who want to meddle in the political affairs of South Africa and other developing nations” [“The truth behind Bashir’s escape”, Mzilikazi wa Afrika, Piet Rampedi and Stephan Hofstatter, Sunday Times of 21 June 2015]. They call for South Africa and all African States to break free and forge our own destiny. What these boisterous voices are rather silent on is what we are breaking free from and how this impulsive dash for freedom will enslave and impoverish us all.

The International Criminal Court

In 1998 [The Rome Statute], the world decided that as a result of crimes committed on an international scale against the conscience of humanity it would no longer allow these perpetrators to act with impunity. It would fall upon the nations of the world to take responsibility and hold to account those guilty of genocide, crimes against humanity, war crimes and the crime of aggression [Article 5]. In particular, the International Criminal Court ("ICC") is trying to bring justice to cases of murder en masse.

It is worth noting that Apartheid is a crime against humanity and it was for this very reason that former president Nelson Mandela had the following to say about the importance of the ICC:

“We have sought to ensure that the ICC is guaranteed independence and bestowed with adequate powers. Our own continent has suffered enough horrors emanating from the inhumanity of human beings towards human beings. Who knows, many of these might not have occurred, or at least been minimised, had there been an effectively functioning International Criminal Court” [Statement by the ICC]

Signing the Rome Statute is not obligatory. Some states have never signed it (North Korea) whilst others have gone so far as to confirm that the statute will never be ratified (the United States). The ICC is a court of consent and thus only has jurisdiction in those countries that hold firm to the belief that these crimes need to be punished. On signature, it became their duty to adopt it into their respective national legal systems. South Africa, as did many others, ratified the law [Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002] ("the Act").

The Court sits full time in The Hague. Over the decades the Court has adopted a hybrid approach, largely to contain costs, and it sees crimes prosecuted both on national as well as international levels. The first prosecutor of the ICC was a member of South Africa’s Constitutional Bench and he prosecuted war crimes committed in Europe.

The African Court on Human and People’s Rights

The Court was established under Article 1 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples’ Rights [African Court and African Court Protocol]. The Court’s jurisdiction encompasses all disputes concerning the interpretation and application of the Charter, Protocol and other Human Rights instruments ratified by the states concerned [Article 3]. 

The Court is staffed on a part time basis and sits in the United Republic of Tanzania.

Is the ICC unfairly picking on African Despots?

Africa is rife with conflict, and that is the reason it was to be one of the main topics to be discussed at the AU Summit [African conflicts set to dominate agenda at AU summit]. It should be worth noting that amongst these delegates would be Omar Hassan al-Bashir, against whom the allegations are very serious [Britannica - Omar Hassan Ahmad al-Bashir]. 

The Act notes that the Republic of South Africa is committed to: 

“bringing persons who commit such atrocities to justice, either in a court of law of the Republic in terms of its domestic laws where possible, pursuant to its international obligations to do so when the Republic became party to the Rome Statute of the International Criminal Court, or in the event of the national prosecuting authority of the Republic declining or being unable to do so, in line with the principle of complementarity as contemplated in the Statute, in the International Criminal Court, created by and functioning in terms of the said Statute” [Preamble]

According to the Act a person who commits these crimes is subject to the jurisdiction of the Act and the Rome Statute [Section 4(1)] and that the person’s status as a head of state is not a defence to such a crime [Section 4(2)]. Thus the blanket immunity given to delegates attending the AU Summit by the ANC was in direct contravention of the very laws the ANC signed. 

Why we should retain our commitment to the ICC.

As stated the ICC is there to see Justice realised. The victims of the Rwandan Genocide, not only saw justice realised but, helped the ICC in developing new methods of ensuring its realisation [Gacaca Justice System]. The ICC is an independent, international Court tasked with bring to book the worst offenders that Humanity has to offer. The AU Court is a regional court, regulated by the AU. It is committed to dealing with genocide. Yet the Heads of State, whose countries have signed up to the ICC, have failed to support it. The following should be borne in mind:

  1. Not surprisingly, Zimbabwean President-for-Life and Chairperson of the African Union – Robert Mugabe - has not yet had Zimbabwe ratify the AU Protocol concerning the Court. He showed no regard for South Africa’s signature.
  2. South Africa, the member responsible for the largest financial contribution to AU, is itself engaged in a battle for the constitutional soul of the country. A government that ignores court orders and protects those accused of grave crimes is alarming. Instead of backing the best legal and political traditions in Africa, it has allowed the worst to determine its actions.


Chris Pieters
Legal Researcher