‘Quis custodiet ipsos custodes?’ It is ancient Latin, from the famous ‘Satires’, 16 works of Roman poet Juvenal, who existed between the first and second century. It means, ‘who shall guard the guardians?’
Written at the dawn of the modern era, the question seems of essence today, 20 centuries, hence, as regards African guardians; all these venerated institutions to whom we trustfully relinquish our sovereignty: Courts, Unions, Treaties and Armies.
Who guards them? Who is to say that after we have set them up, they are not infiltrated, then instrumentalised to our own demise? Who is to guarantee that the object and purpose for which we create them are fulfilled? Who is to guarantee that we have not created monsters that are to turn against us?
When Zimbabwe decided to embark on a land reform that would see land taken during colonialism redistributed to the Zimbabwean people, the post-colonial government wished, in its own words, to right a historical wrong.
Then newly created, the SADC (Southern Africa Development Community) Tribunal first ruled itself competent on such matter, at the foundational core of the Zimbabwean nation, then proceeded to overturn the Zimbabwean government’s decision, in the famous ‘Campbell Case’.
William Michael Campbell, whose parents had acquired land in Zimbabwe through violence, four century earlier; a man whom, as a captain in the apartheid army had fought against Mugabe’s anti-apartheid guerrilla movement and lost, was finding platform in an African court, established by revolutionary anti-apartheid veterans, to protect his private safari lodge, his personal park with giraffes, impala and many more Zimbabwean indigenous animals…
So I ask you again: Who shall guard the guardians?
The SADC Tribunal was dismantled!
On the 24 November 2017, Victoire Umuhoza Ingabire lost her case in the African Court on Human and Peoples’ Rights (AfCHPR). She lost ALL the prayers (requests) that she had submitted to the Court.
Madame Ingabire had made five prayers;
i. Order the repeal of the law relating to the punishment of the crime of Ideology of the Genocide
ii. Order the review of her case by Rwandan courts:
iii. Annulment of all the decisions taken by Rwandan courts on her behalf
iv. Order that she is released on parole.
v. Order the Rwandan government to pay costs and reparations to her.
Not a single one of her requests were granted. In a nutshell, the African judges found that the trials which had led Rwandan courts to sentencing her to fifteen years in prison were done in respect of her presumption of innocence and in impartiality of the law; that the sentence handed to her was proportionate to the crimes for which she was being prosecuted; that the witness whom she alleged was intimidated in prison was only searched ‘After’ giving his testimony.
The African court then found no ground to order her release, or payment of any damages by the Rwandan government.
But far from me, the idea of afflicting further, a woman who is already in jail, I chose to report about this because we weren’t told how the story ends. When the hammer went down, all activists and reporters were disabused.
The fervor with which Ingabire’s ‘suing Rwanda’ was reported, aimed at pressurising judges at the African Court to prove how ‘independent’ and ‘different’ they are from the rest of us victims and savages.
From the day she filed her case, NGOs and western media all predicted a certain verdict; one that condemns the Rwandan ‘dictatorship’. To an extent that we had all taken it as a given that an African government can’t win in an African Court.
Except the story doesn’t end there; in a 45-page duly motivated judgement, the eight judges turned down all Ingabire’s prayers.
This case should serve a lesson to the exuberant activists who feel entitled to have African institutions in their pocket because they fund them. African institutions are frequently ‘captured’ by non-African cronies, using funding and study tours.
So much so that African governments have grown weary of the ‘monsters’ they created. The conclusion of Jean Pierre Bemba’s case is a telling example of such institutional capture.
Perhaps this is an opportunity to start a broader conversation on the merit of non-African influence in African institutions, or the place of African countries in global institutions. And ask ourselves; is there a space where Africans may feel safe to discuss matters pertaining to their destiny, while shielded from external influence?
Victoire Ingabire Umuhoza, a woman who was convicted of collaborating with a rebel group of former genocide perpetrators on a UN terrorist list, found allies and a platform to order the repeal of a law that punished the crime of Genocide Ideology.
What would have happened to genocide survivors, had the African Court ruled in Ingabire’s favour? What of Rwanda, a country which is trying to reconcile its people after a genocide?
Who shall guard the guardians?
Unlike its sister, the European Court of Human Rights, ours is the African Court on Human and ‘Peoples’ Rights. In other words we believe that not only individual rights matter, but also collective communities must be protected – this stems from ‘Africa’s Ubuntu philosophy.
The anti-apartheid struggle, the liberation wars and the campaign to stop the genocide against the Tutsi must be upheld – if not by global institutions, but at least by African entities.
In Ethiopia, NGOs dealing with governance matters are required to generate most of their funding domestically. In Rwanda political parties are precluded from accepting foreign support of any sort. As a result, in both countries reforms happen organically.
My faith in the African Court is thus restored; not because it ruled against Ingabire, but because it resisted western pressure. I shall, this time, advocate for the Rwandan government to reinstate the declaration allowing individuals to take cases to it, for it may after all, be well guarded.
The writer is a Senior Research Fellow, Governance, at the Institute of Policy Analysis and Research (IPAR).
Editor’s note: Rwanda in 2016 made a decision to withdraw from the special declaration of the African Court on Human and Peoples’ Rights, which was enacted to allow individuals and NGOs to directly file cases before the court. Rwanda based their decision on the fact that the court was giving platform to convicts of the 1994 Genocide against the Tutsi, could use to promote their Genocidal agenda.
The views expressed in this article are of the author.