“No one ever asked the Sudanese themselves if they want the arrest warrant against their President. [But] undoubtedly, yes: it’s time.”
This Sudanese activist reflected the feelings of many in the region when the International Criminal Court (ICC) issued its arrest warrant for President Omar Al Bashir of Sudan in March. President Al Bashir was accused, as indirect perpetrator, of war crimes – specifically attacking civilians and pillaging – and crimes against humanity – specifically for murder, extermination, forcible transfer, torture and rape. This was a powerful and welcome signal sent to those suspected of being responsible for gross human rights violations: that nobody is above the law, and that the rights of victims should be upheld.
The stark contrast from many leaders in Africa between their human rights rhetoric and the absence of concrete action to respect, protect and promote human rights, is not new. But hardly ever has it been demonstrated so unequivocally as with their reaction to President Al Bashir’s arrest warrant. This triggered a wide – and still ongoing – debate in Africa on the role of international justice in ensuring accountability for gross violations of international human rights and humanitarian law.
Sadly, there are numerous other examples from 2009 that demonstrate the lack of political will in Africa to ensure accountability on any scale.
Members of armed opposition groups and government security forces in Central African Republic, Chad, Democratic Republic of the Congo (DRC), Somalia and Sudan continued to commit human rights abuses with impunity in those parts of the countries affected by armed conflict or insecurity.
In Somalia, there was no functioning justice system and no effective mechanism was put in place to monitor human rights abuses. The conflict between the various armed groups and government forces resulted in thousands of civilian casualties due to the indiscriminate and disproportionate nature of many of the military operations conducted by all parties to the conflict, especially around the capital Mogadishu. Civilians were often targeted in attacks and densely populated areas were shelled. Military assistance, including shipments of arms from the USA, to the Transitional Federal Government, without adequate safeguards in place to ensure that such assistance does not lead to gross human rights violations, risked exacerbating the situation. The conflict in Somalia also continued to have implications for stability in the rest of the Horn of Africa.
In eastern DRC, sexual violence, attacks against civilians, looting and recruitment and use of child soldiers continued unabated.
Joint military operations of the national Congolese army (FARDC) and the UN peacekeeping force (MONUC) against the armed group the Democratic Liberation Forces of Rwanda (FDLR) displaced thousands more people, destroyed villages and killed and wounded thousands. The FDLR continued to target civilians. MONUC was heavily criticized for its support to the FARDC in these military operations as the national army was also responsible for numerous human rights violations.
The arrest in Germany in November of Ignace Murwanashyaka, President of the FDLR, and his deputy, Straton Musoni, was a positive development and demonstrated the contribution universal jurisdiction can make in addressing impunity. The government of the DRC refused to arrest former rebel commander Bosco Ntaganda and surrender him to the ICC, even though the government is legally obliged to do so as an arrest warrant has been issued. Other senior FARDC officers accused of war crimes or other serious human rights violations have not been suspended from duty or brought to justice.
"UN and AU peacekeepers, often with a mandate to protect the civilian population, were also attacked."
In March, the AU mandated a panel under former South African President Thabo Mbeki, to explore ways of ensuring accountability as well as reconciliation in Darfur. The report of the Mbeki panel, released in October, contained a wide range of recommendations to obtain justice, establish the truth about past and ongoing human rights abuses and seek reparations for those affected by human rights abuses or their relatives. The Mbeki panel recognized the role the ICC plays in addressing impunity.
And yet, although a number of countries indicated that President Al Bashir would be at risk of arrest if he were to visit, many others, such as Egypt, Ethiopia and Eritrea were more than pleased to receive the Sudanese President. And the government of Sudan ignored international attempts at justice and continued to refuse to arrest former government minister Ahmad Harun and militia leader Ali Kushayb even though warrants from the ICC have been outstanding against both of them for war crimes and crimes against humanity since April 2007.
Conflict between various communities in South Sudan increased, specifically in Jonglei, leading to thousands of people being displaced and numerous others killed and wounded, including civilians.
Any help humanitarian organizations might have been able to offer people was hampered by the difficult working environment in the country, partly due to the general insecurity and partly because they were often targeted by parties to the conflict or bandits. This was also the case in the DRC, eastern Chad, and Somalia. UN and AU peacekeepers, often with a mandate to protect the civilian population, were also attacked in these four countries.
Accountability and reparations for past human rights violations were often not effectively addressed in post-conflict situations either.
In Liberia, for example, the Truth and Reconciliation Commission, established to shed light on the human rights violations committed during the period 1979-2003, published its final report in 2009 and recommended establishing an extraordinary criminal tribunal to investigate and prosecute those suspected of having committed crimes under international law. However, concrete steps need to be taken by the authorities to implement these recommendations.
In Burundi, there was only limited progress in establishing a Truth and Reconciliation Commission and a Special Tribunal within the Burundian justice system to investigate Burundi’s violent history and to prosecute, if established, crimes of genocide, war crimes and crimes against humanity.
Good news came primarily from the Special Court for Sierra Leone, which concluded all its trials in 2009, including those at the appeal stage, except that of former President of Liberia Charles Taylor, which continued throughout the year. However, the reparations programme in Sierra Leone lacked means to be of much significance for the people affected by human rights abuses during the 1991–2002 conflict. The UN Security Council also extended in December the mandate of the International Criminal Tribunal for Rwanda until the end of 2012 to ensure it could finalize the trials.
By the end of 2009, Senegal had still not started the trial of former Chadian President Hissène Habré, as requested by the AU, allegedly due to lack of resources. However, requests from Senegal for financial assistance were deemed excessive by international donors.
Public security concerns
The lack of commitment to address impunity was also reflected in the attitude of many governments in the region towards human rights violations committed by their law enforcement and other security officers. It was not unusual in 2009 for security forces to use excessive force and to commit unlawful killings, including extrajudicial executions.
On 7 February, the Presidential Guard in Madagascar fired live ammunition at unarmed demonstrators marching on the Presidential Palace in Antananarivo, killing at least 31 people. No independent and impartial investigation was conducted into the unlawful killings despite requests from the victims’ relatives and human rights organizations.
"The work of journalists was restricted in numerous ways, and the list of governments in 2009 that repressed basic freedoms and the right of their people to information, is long."
In Nigeria, hundreds of people are unlawfully killed every year by the police, and 2009 was no exception. These unlawful killings, many of which may be extrajudicial executions, and which occur in police stations, at road blocks or in the street, are hardly ever investigated. Those who live in poverty face a greater risk of being killed as they are not in a position to bribe police officers. The law in Nigeria provides more grounds for lethal force than those permitted by international human rights law and standards.
There was no indication that the government of Cameroon had initiated investigations into the unlawful killings of about 100 people in 2008 when security forces cracked down on violent demonstrations against the increased cost of living and a constitutional amendment to extend the President’s term of office. The government of Kenya did not take measures to ensure accountability for human rights violations committed during the post-election violence in 2007–08 when more than 1,000 people were killed. As a result, the Prosecutor of the ICC sought authorization from the Court to investigate possible crimes against humanity during the post-election violence in Kenya.
On 28 September, more than 150 people were unlawfully killed in Guinea when security forces violently repressed a peaceful demonstration in a stadium in the capital Conakry. Women participating in the demonstration were raped in public. No credible investigations were initiated by the authorities so the UN set up an international Commission of Inquiry. It concluded that crimes against humanity had been committed and recommended referral to the ICC.
At least here there was political will among the UN, AU and the Economic Community of West African States (ECOWAS) to act swiftly to determine the facts and identify those responsible. Unfortunately, this was more an exception than a rule in the region.
The problems in 2009 were compounded by the fact that security forces continued to be poorly paid, inadequately trained and ill-equipped. In many states security forces were still primarily a tool for repression and not for maintaining law and order, or for serving the public. In this way the demand for accountability was squashed by further violations.
Repression of dissent
In many countries, journalists, political opponents, trade union activists, and human rights defenders had their rights to freedom of expression, association and peaceful assembly violated. Across the region, governments’ reaction to criticism was often to discredit and attack the messenger, including through intimidation, arbitrary arrests, enforced disappearances and sometimes killings. In some countries the judiciary lacks independence and magistrates are intimidated – so the judiciary becomes yet another tool of repression.
The work of journalists was restricted in numerous ways and the list of governments in 2009 that repressed basic freedoms and the right of their people to information is long: in Angola, journalists faced lawsuits for “abusing the media” and defamation charges leading to prison sentences; in Cameroon, a journalist was sentenced to three years’ imprisonment for publishing “false news” and others were charged with insulting government officials; journalists were also arrested in the DRC, Eritrea, Gambia, Nigeria and Uganda for their work; Sudan and Chad deported several foreign journalists and media laws restricting their work were introduced or remained in place in both countries as well as in Rwanda and Togo; print media in Sudan were heavily censored for most of the year; in Madagascar, Nigeria, Senegal and Uganda, various media outlets were closed down; in Côte d’Ivoire, Republic of Congo, Djibouti, Ethiopia, Guinea, Kenya, Senegal, Swaziland and Tanzania, journalists were harassed and intimidated; in Somalia, nine journalists were killed and many others fled the country, as they and human rights activists were also threatened by members of armed groups.
Human rights activists were intimidated for their work across the region, and sometimes arrested, including in Burkina Faso, Chad, the DRC, Mauritania, Swaziland and Zimbabwe. Other countries, including Ethiopia, passed legislation restricting the legitimate work of civil society. In Gambia, the President reportedly threatened to kill anyone wishing to destabilize the country and specifically threatened human rights defenders. In Kenya, two prominent human rights defenders were killed in broad daylight in Nairobi by unidentified gunmen. In Burundi, a human rights defender working on corruption, including within the police, was stabbed to death at his home.
Political opponents of the government, or people perceived to be, were arbitrarily arrested in many countries, including Cameroon, Chad, Republic of Congo, Equatorial Guinea, Ethiopia, Guinea, Guinea-Bissau, Madagascar, Niger and Zimbabwe. Those in detention were regularly tortured or otherwise ill-treated. Some political opponents remained victims of enforced disappearances, including in Chad and Gambia. Military personnel in Guinea Bissau killed a number of political and military figures.
In some countries, such as Republic of Congo, Guinea, Madagascar, Mauritania and Uganda, demonstrations were violently repressed.
People on the move
The ongoing armed conflicts and insecurity in the region meant hundreds of thousands of people remained displaced in 2009, often living in camps, in precarious conditions with limited access to water, sanitation, health, education and food. Many of the internally displaced in northern Uganda returned to their homes but had no access to basic services.
Refugees and asylum-seekers in Kenya, Tanzania and Uganda were forcibly returned, or were at risk of being so, to their countries of origin where they still faced persecution or other risks. In South Africa the police response to xenophobic attacks against migrants and refugees, and destruction of their property, was often inadequate.
"Ongoing armed conflicts and insecurity in the region meant hundreds of thousands of people remained displaced in 2009."
In Mauritania, migrants continued to be arbitrarily arrested and detained before being expelled, a policy put in place by the authorities as a result of pressure from European states to control migration. Angola expelled an estimated 160,000 DRC nationals in a process fraught with abuses, including reports that Angolan security forces subjected those expelled to wide-ranging ill-treatment including sexual abuse. Some died during the expulsion. In retaliation, the DRC expelled thousands of Angolan citizens, including refugees.
One positive development of 2009 was the adoption by the AU of the Convention for the Protection and Assistance of Internally Displaced Persons in Africa, recognizing the specific vulnerability and needs of displaced people.
Housing – forced evictions
The rapid urbanization in the region also causes displacement. Every year, tens of thousands of people end up living in informal settlements, often in very precarious living conditions with no access to basic services such as water, sanitation, health and education.
People have no access to adequate housing, no security of tenure and are at risk of forced evictions. The forced evictions often lead to the loss of their livelihood and their meagre possessions, and drive people deeper into poverty. Those evicted are hardly ever consulted, are not given advance notice of the evictions and are not granted compensation or adequate alternative housing. In 2009 the trend continued, and mass forced evictions took place in Angola, Chad, Equatorial Guinea, Ghana, Kenya and Nigeria.
Economic concerns – corporate accountability
The lack of corporate accountability resulted in a range of human rights abuses. In eastern DRC, the exploitation of natural resources, specifically in the mining industry, continued to fuel the conflict. Armed groups as well as the national army were involved in the exploitation of natural resources and were trading with private economic actors. Children were working in some of the mines.
In the Niger Delta in Nigeria, the situation deteriorated as security forces committed human rights violations during their military operations against armed groups. Armed groups kidnapped numerous oil workers and their relatives and attacked oil installations. The oil industry damaged the environment and had a negative impact on the standard of living and livelihood of local people. Laws and regulations to protect the environment were poorly enforced, and impunity for past human rights abuses continued, further contributing to poverty and conflict.
Due to corruption, nearly 30,000 victims of the 2006 dumping of toxic waste in Côte d’Ivoire were at risk of missing out on the compensation granted to them by the multinational corporation Trafigura in an out of court settlement in the UK.
Discrimination against people based on their perceived or real sexual orientation continued in various countries. Lesbian, gay, bisexual and transgender people as well as human rights activists working with and for them were harassed and intimidated. Some faced arbitrary arrest and detention as well as ill-treatment. New legislation to further criminalize homosexuality was introduced or debated in parliaments across the region.
Burundi, for example, adopted a new penal code in April that criminalized consensual same-sex relations. In Uganda, an Anti-Homosexuality Bill was introduced for consideration by parliament, building on the existing discriminatory laws by proposing new offences such as the “promotion of homosexuality”. The Bill also sought to impose the death penalty and life imprisonment for some offences.
In Nigeria, discussions continued on the draft Same Gender Marriage Bill, which would criminalize not only people of the same sex who get married, but also their witnesses or officiators.
In Cameroon and Senegal, men faced harassment, arbitrary arrest and detention, torture and unfair trials because they were suspected of engaging in same-sex relationships. In Malawi, two people were arrested and charged with “indecent practices between males” at the end of December, following a “traditional engagement ceremony”. They were reportedly ill-treated while in detention.
More positive was the public statement in Rwanda by the Minister of Justice that homosexuality would not be criminalized, as sexual orientation was considered a private matter.
People were also discriminated against across the region for their gender, ethnicity, religion and identity. Discrimination and violence against women and girls prevailed in many societies and in different forms. Women and girls continued to be raped, particularly in situations of armed conflict such as in Chad, the DRC and Sudan. Some countries also recorded high levels of domestic violence although in most no proper reporting or investigating system was in place. Most women and girls faced numerous obstacles to obtain access to justice. Discrimination and the low status of women in countries such as Burkina Faso and Sierra Leone affected their ability to seek health care, and contributed to high levels of maternal mortality. Traditional harmful practices continued, including female genital mutilation and early marriage.
In Sudan, women were arrested and flogged for wearing trousers – which were considered “indecent or immoral”. In Somalia, al-Shabab (“youth”) militias closed women’s organizations. In northern districts of Sierra Leone, women were not allowed to contest chieftaincy elections. An attempt to address the inequality of women in law sparked protests in Mali, and Nigeria still has to adopt legislation to incorporate the UN Women’s Convention, almost 25 years after it chose to ratify this treaty.
In Mauritania, Special Rapporteurs of the UN highlighted the ongoing marginalization of black Mauritanian people. Several religious groups remained banned in Eritrea and people were persecuted due to their religion. In Burundi and Tanzania, killings and mutilations of albino people continued, driven by cultural and religious beliefs.
Some suspected of involvement in the killings were convicted of murder in Tanzania.
Lack of accountability in Africa was not only reflected in the reluctance of many states to investigate and prosecute those responsible for crimes under international law, or to collaborate with the ICC on the arrest of President Al Bashir. The lack of accountability for human rights abuses – by local and central authorities, law enforcement agencies, armed groups and corporate actors – continued to be a systemic problem across the region. Unless it is addressed, there will be no lasting improvement in the realization of all human rights as enshrined in the Universal Declaration of Human Rights and regional and international human rights treaties.
The AU should lead by example, but in certain situations it has become part of the problem. The call for accountability from civil society has become stronger over the years in Africa, but commitment from the political leadership is required to make significant change.