Africa needs African judges

The heads of state and government, at the just ended African Union Summit in Gambia, decided to implement a 1998 resolution and set up an African Court on Human and People’s Rights.

The need for such a court has long been apparent, since Africa must solve its own problems and find its own solutions as societies undergo some of the most rapid changes ever seen in human history.

The first headlines are, of course, on trying brutal dictators. But even these men (and this is one area where women are almost absent) deserve a fair trial, fair to both defence and to the prosecution.

Such trials are almost impossible to arrange elsewhere in the world. Either the Western media smothers a bloodthirsty tyrant in kisses ‘ and we all remember the sort of press the Emperor Bokassa of Central Africa and his chum Mobuto Sese Seko of Zaire enjoyed as defenders of the West ‘ or they are demonised simply because they do not defend the West.

While judges of international courts will try, we hope, to rise above the trash they read over breakfast they cannot help but be influenced by it when forming opinions on Africa. They do not know the place, and often do not want to know it. However hard they try they will be operating from an oversimplified model of the continent.

And while some crimes and some rights are universal it often needs a lot of background information to know who the criminal is, or how rights need to be applied in particular circumstances.

African judges will be less easy to fool. They live on the continent. They can tell the difference between brutal sadism and honest mistakes.

They know the sort of tensions that societies on a fast changing continent produce that require fast solutions. They do not have to read about this over breakfast; they can look out their windows.

For the bulk of the work of the court is not going to be criminal trials. The AU itself and the regional organisations have done a great deal, especially since the last Rwandan massacres, to bring dictators and would-be dictators to book and ensure that all African countries do run proper elections and have representative governments.

Things like the West African intervention in Liberia and Sierra Leone, the SADC guidelines on elections and now the major international and regional assistance to give the Congolese democracy in the DRC all point the way.

We would assume that much of the court’s work will be as a final and independent court of appeal when someone, or some group, thinks its rights have been infringed. And here the need for African judges is critical in helping government craft solutions to some of the most intractable problems they face.

Just as an example, Southern Africa’s land reforms could one day reach the court. Outsiders will never see just how complex that issue is. A bench of African judges can take into account property rights, the need for social justice and the need to reverse the effects of genocide or land theft of the past.

So a Zimbabwean solution ‘ that reform is vital and that compensation should be paid for what a person put into the land not the land itself ‘ is unlikely to be found unreasonable. It is a solution that minimises suffering while not being over harsh on those who lose.

Other problems likely to come before a court could include citizenship rights. So many millions of Africans were moved around the arbitrary borders of the continent in colonial days that it is sometimes almost impossible to figure out who belongs where. National governments and courts can only deal with the effects of this; it needs a supranational court to help craft rules by building up a set of precedents that deal with the full implications of the problem.

Africans, understandably considering their sorry history, are touchy when outsiders with bloody hands try to lay down the law. They are more likely to accept the considered judgement of their own people who live with their problems and yet who have the education, erudition and experience to offer new insights into how disputes can be resolved.

Others are similarly sensitive. The European Court of Human Rights has been one of the most effective regional courts in history, simply because it has top-class European judges dealing with cases involving Europeans with European problems.

Africa demands, and is now getting, no less.

We hope, so important is this court likely to be, that African States will nominate their best judges for seats on what should be the most prestigious judicial bench on the continent.

July 2006
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