Why can’t EACJ adjudicate criminal cases?

The idea to have the East African Court of Justice expand its mandate and go beyond just interpreting the Treaty establishing the bloc, to try cases of individuals and of criminal nature, has for years been toyed with at various forums but with no conclusive outcome. Interacting recently with a distinguished jurist who has for the past few years been with the court, which has its ad hoc seat in Arusha, Tanzania, on whether the court can capably handle cases of criminal nature, he was categorical; that this institution was up to the job.

The idea to have the East African Court of Justice expand its mandate and go beyond just interpreting the Treaty establishing the bloc, to try cases of individuals and of criminal nature, has for years been toyed with at various forums but with no conclusive outcome.

Interacting recently with a distinguished jurist who has for the past few years been with the court, which has its ad hoc seat in Arusha, Tanzania, on whether the court can capably handle cases of criminal nature, he was categorical; that this institution was up to the job.

It is very difficult to bring up this topic today without reference to the weekend meeting that brought together African Heads of State and government, in the Ethiopian capital Addis Ababa, to exclusively discuss the continent’s relationship with the International Criminal Court (ICC).

The mood of this August gathering, at the conclusion of their meeting, left little to imagination that the continent was finally gearing up to sever ties with the court, which has, for over a decade of its existence, targeted only Africans.

The straw that is likely to break the camel’s back could be the continued humiliation of Kenya’s two top most leaders, whom the Prosecutor of the court recently said they should appoint a person to run the affairs of the state to allow the two leaders attend court sessions.

This suggestion was unconstitutional, to say the least, because these two men were democratically elected  into office by the Kenyan electorate.

Of course my bringing up the issue of a regional court does not have anything to do with the Kenyan case, it is purely coincidental.

However, with the momentum gathering towards a possible pullout of the 34 African states that have subscribed to the Rome Statute, an alternative system has to be sought so that we are not seen to be fronting impunity, much as the ICC itself wasn’t up to the job anyway; which brings me back to the EACJ.

The core issue that has for years been floated is lack of resources, both human and material. To pull off such an undertaking – which, by the way, history has proven surmountable if all parties were to put their heads together.

Resource-wise, like the distinguished man of the robe said during the interaction referred to above, there is a number of legal brains in the region who have adjudicated cases in different tribunals of international caliber and never have I seen their judgments questioned.

Instead, we have seen rulings of the so-called crème de la crème come under disrepute, sadly enough by fellow members of the bench, at an international criminal tribunal that I will not mention here in my column today.

Every process has a shaky beginning, if I am to take an example of the International Criminal Tribunal for Rwanda (ICTR), which either by omission or design had, at some point, Genocide suspects in its ranks working as investigators for the prosecution, and close watchers have blamed this for the high profile acquittals at the court due to this faux pas.

The successes or failures for this court which is winding up its activities, is a story for another day, but lessons learnt here can be invaluable to us, despite the difference in nature between the ICTR and an EACJ with mandate to adjudicate cases criminal in nature.

The ICTR itself has had East Africans in senior capacities (including senior judges and lead prosecutors) in all its departments who can be invaluable in championing the cause.

Handing the East African court the powers to adjudicate criminal cases should however not stand in the way of looking at the possibility of having a more powerful institution at the continental level.

For all this to happen however, there is need for change in the way African states view crime, especially those committed in other partner states.

For example, we need solidarity to be demonstrated in apprehending fugitives of the 1994 Genocide against the Tutsi, who have made a den in some of the African countries, where they are said to be operating thriving multi-national businesses and using proceeds from the businesses to bankroll more atrocities by militia groups.

The writer is an editor at The New Times.

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