ICC targeting Africa debate: A memoire of lessons from Accra-Ghana

The long existing claim and debate that International Criminal Court unfairly targets Africans continuous to gain grounds after the Gambia became the third country on the continent to reveal its withdrawal from the Hague-based tribunal.

The decision follows exit plan by Burundi and South Africa, informing the then UN Secretary General Ban Ki-Moon of their resort to quit. Although the current President of the Gambia H.E Adama Barrow cancelled attempts by his predecessor Yayah Jammeh to quit the ICC, the complaints remain that the ICC arrest warrants have more often than not been issued for Africans. Many have argued that the ICC’s target of Africa is part of the colonial project to legally nail African leaders which began with slavery.

On the contrary, International Cooperation Adviser of International Criminal Court (ICC) Dahirou Sant-Anna has debunked the widely held view that the ICC has ulterior motive of prosecuting African presidents as compared to that of other continents. According to him, although the fact sheet shows that the ICC has been prosecuting many African leaders as compared to that of other nations, majority of such cases were referred to the Hague-based tribunal as a Court of last resort by Africans themselves. Speaking to African Editors’ Jerry Akornor in Accra-Ghana, Lawyer Dahirou Sant-Anna says the ICC does not intends to pursue Africans over international crimes except matters that were filed by Africans.

“It’s misrepresentation of the reality, unfortunately, this kind of narrative is more listened to than what the reality is, the big majority of African cases were brought to the ICC by Africans themselves, so it’s not as if ICC has decided to go and start working on African situation, the case of Central African Republic, DR Congo, Uganda, Mali, were brought by the states themselves, those of Libya and Sudan were referred to the ICC by UN Security Council, except Kenya and Cote D’voire where the prosecutor decided to investigate herself”, he told African Editors’ Jerry Akornor.

The ICC established in July, 2002, by the Rome Statute, remains a court of last resort and if sovereign states failed to prosecute persons alleged to have committed international crime, the Hague-tribunal steps in with the sole responsibility to prosecute those perpetrators. The ICC has the jurisdictions (an area of authority) to prosecute crimes against humanity, war crimes, genocide and crimes of aggression. The ICC has 122 state parties with majority from Africa.

Meanwhile, Center for Democratic Development (CDD-Ghana) other civil society organisations such as African Center for International Law and Accountability (ACILA) have been at the forefront and pushing for prosecution of the Ex-Gambian Leader Yayah Jammeh for alleged murder of 44 Ghanaians in the Gambia. A former Commissioner of the Commission on Human Rights and Administrative Justice (CHRAJ), Justice Emile Short, has added his voice to the clarion call urging government to take urgent steps to bring former Gambian Leader Yahya Jammeh to justice for the massacre of 44 Ghanaian immigrants in 2005.

The 44 were murdered during the regime of Mr Jammeh, allegedly on his orders. Civil Society Organisations (CSOs) including the Centre for Democratic Development (CDD-Ghana) and Amnesty International launched a campaign in 2018 – Jammeh2JusticeGhana – to demand swift action from the government on the matter. According to Mr Short, Ghana must trigger extradition processes for Mr. Jammeh to face prosecution in Ghana.

Speaking to African Editors’ Jerry Akornor in Accra-Ghana, former Judge of the UN International Criminal Tribunal for Rwanda Justice Emile Short said legal and diplomatic efforts must be made to bring closure to the matter.

“My hope and I think I speak for everybody here, is that the government of Ghana will take all measures (legal, political, administrative) to ensure that Jammeh is extradited to Ghana to face trial for the murder of these 44 Ghanaians,” he noted.

He said there are legal grounds on which the processes could be triggered and Ghana should make use of those provisions. Mr Short entreated the government to attach seriousness to the matter and ensure that justice is delivered.

But, the International Cooperation Adviser of ICC Lawyer Dahirou Sant-Anna says Ghanaian government has not brought before the ICC alleged murder of 44 Ghanaians in the Gambia to warrant the trial of Ex-President Yayah Jammeh.

He told Jerry Akornor that “no such situation of the event you referred to has been brought to the ICC as a referral to investigate or prosecute”.

On the issue of the role of the ICC in providing reliefs to victims of international crimes, Lawyer Sant-Anna revealed the ICC has a trust fund for providing reliefs to victims of international crimes.

Meanwhile, Senior Trial Lawyer Jean-Jacques Badibanga wants Journalists to scale up reports on international crimes in accordance with law and best practices by cross checking facts before publishing.

The International Criminal Law and Justice training for Anglophone African Journalists by African Centre of International Criminal Law and Justice at GIMPA Faculty of Law seeks to build capacity of African Law students in field of international Criminal Law and Justice. Over 30 Journalists from Ghana, Kenya, Nigeria, Zambia, Zimbabwe, Uganda, Cameroon and others participated in 2019 African Centre for International Criminal Justice training held at GIMPA Faculty of Law in Accra-Ghana. Participants were taken through the ICC structure, jurisdiction, and preliminary examinations, ICC outreach and victim’s participation, practice at the ICC: trial cases, cyber security and the role of the media in covering international crimes. In attendance were Rector of Ghana Institute of Management and Public Administration Prof. Philip Ebo Bonzi Simpson, Dean of GIMPA Faculty of Law and Justice of the Court of Appeal of Ghana Prof. Justice Dennis Adjei, Netherlands Ambassador to Ghana to Ghana Roy Strikker, Lecturer and Head of African Centre of International Criminal Justice Dr. Kwaku Agyeman-Budu.

In another development, a Lecturer at GIMPA Faculty of Law and Lancaster University Ghana Dr. Nnenna Ifeanyi-Ajufo has appealed to the ICC to legally broaden its scope to enable it make determination of matters relating to abuse within the cyber space. According to her, the Rome Statute is almost silent on cyber cases.

Government of Ghana under National Cyber Security Center in recent times has been at the forefront of devising ways to resolve emerging cyber issues. Ghana’s Attorney General’s Department has drafted Security Bill to be presented to parliament for passage into law in 2020. The totality of this is to regulate the cyber space aimed at tackling head-on cybercrimes and cyber fraud otherwise known as illegal hacking into systems to cause havoc.

Ghana’s Ministry of Communications has revealed it is taking urgent steps to ensure children are protected from sexually inappropriate online contents in Ghana. According to Deputy Minister of Communications Vincent Odotei Sowah, Global Kids Online Toolkit, a research conducted with support of UNICEF, revealed 4 in 10 children have seen sexual images at least once in the past, and 4 out of every 10 adolescents accept all friend requests made to them by people they have never met. These statistics were gathered from a research where a quarter of the over 2000 youth surveyed indicated that they had received sexual images on their phones. 2 in 10 children had actually met someone face to face whom they first got to know on the internet, with 25% of them being upset by these meetings.

Most of the children who have these encounters are unable to share their experiences, with about half of all the surveyed children expressing difficulty in talking about exposure to sexual images or predators with their guardians.

As part of Ministry of Communications – International Telecommunication Union Child Online Protection (COP) Africa Forum in Accra, former Deputy Minister of Communications and Member of Parliament (Senator) for Dadekopon Lawmaker Hon. Odotei Sowah said: ” the findings require urgent action plan to ensure safety of children’s interaction online”.

The need to ensure children are not exposed to inappropriate contents online is urgent and requires concerted efforts.

The ICC remains one of the tools at the disposal of states facing international crimes. At the heart of crimes against humanity, war crimes, genocide and aggression which the ICC is obliged to resolve, is that critical issues of ongoing battle against human rights violations, pursuance of sustainable peace and justice. The questions remains whether or not African countries are still dragging their feet when it comes to domesticating and operationalising international protocols on human rights they have already appended signatures to. It is against this background that I draw your attention to the subject matter:

REVIEW OF HUMAN RIGHTS PRACTICES IN GHANA & INTERNATIONAL PROTOCOLS

International Human Rights Law is the body of international law designed to promote human rights on social, regional and domestic levels. It is primarily made up of treaties, agreements between sovereign states intended to have binding legal effect between agreed parties.

International Convention on Civil and Political Rights refers to recognition of inherent dignity, equal and an inalienable right of all UN members of the human family is the foundation of freedom, justice and peace in the world.

Freedom of speech and expression implies the right to express one’s own convictions, opinions freely by words of mouth, writing, printing, pictures or any other mode. Freedom of speech and expression is recognised as universal human right under Article 19 of Universal Declaration on Human Rights, International Human Rights Law, International Convention on Civil and Political Rights, Article 10 of European Law on Human Rights, Article 13 of American Convention on Human Rights and Article 9 of African Charter on Human and Peoples’ Rights.

I must confirm that the relationship between International Human Rights Law and International Humanitarian Law is a subject of dispute among scholars of International Law. The argument among legal puritans forms part of the discussion on the fragmentation of international Law. Whereas pluralist scholars agreed that international human rights law is different from International Humanitarian Law, proponents of constitutionalist approach regard the latter as a subset of the former. The totality of this is rooted in the fact that practitioners who are in favour of separate autonomous regimes hold the view that it is a clear case of disparity in application and that International Humanitarian Law only applies during armed conflict.

Chapter Five of 1992 Constitution of Ghana spells out freedom of speech and expression. Government of Ghana continues to uphold freedom of speech and expression as enshrined in Chapter Five of the 1992 Constitution. Its reputation as a law abiding country with unfettered freedom of expression was reaffirmed after highly contested 2012 Presidential Elections. Freedom of expression is the voice of the masses. Article 12(1) of the 1992 Constitution binds every citizen to obey fundamental human rights and freedoms, particularly freedom of media which was tremendously calculated and added to fundamental human rights of the Republic of Ghana under article 165 of the supreme laws of the land. The position of the laws of Ghana guarantees freedom of speech and expression.

Honestly, I believe that all men are born equal, endowed by their creator with such inalienable rights. Among those are life, liberty and pursuit of happiness. Happiness about quality of education, health systems, economic empowerment, gainful employment, creative opportunity for young men and women to invent, innovate and optimise Ghana’s natural resources for the benefits of the citizenry. This requires a selfless leadership and a leader who can assemble experts in the land towards the overall agenda including protection of human rights. This requires a selfless leader who can assemble the expert in the land towards the overall agenda of the state. In this regard, Government of Ghana safeguards human right of people in the country in line with international protocols and best practices through the following ways:

First of all, Ghana’s transition from dictatorial regime to democracy has paved way for liberalised media referred to as ‘fourth estate’ of the realm serving as a shining example to West African sub-region. There is no censorship. This enables the Ghanaian media to offer constructive criticisms to put government on its toes. As result, the media serves as a watchdog on government in order to ensure that organs of government act in tandem with the law and not according to their whims and caprices. With freedom of speech and expression under Ghana’s democratic experiment, the media is at liberty to ensure that politicians act intra vires and not ultra vires. For example, Class 91.3FM in Accra exposed loopholes in new Ameri Novation Deal pointing out that the agreement if allowed to go will cripple the public purse because no due diligence was made to protect the taxpayer leading to the dismissal of Energy Minister BoakyeAgyarko. President Akufo-Addo had no alternative than to show BoakyeAgyarko the exit due to intense pressures from the public after the media enlightened citizens on the matter.

Similarly, Universal Declaration of Human Rights adopted by United Nations General Assembly in which Ghana is a signatory to states in Article 19 that ‘’Everyone has rights to freedom of opinion and expression’’. This right includes freedom to hold opinions without interference regardless of frontiers. It puts international obligation on government of Ghana to domesticate the provision after appending signatures to it, thereby ensuring that the constitution guarantees the press, citizens’ rights to speak what they want, whenever they want and wherever they want. Therefore, freedom to express one’s view without censorship is a natural right guaranteed by the supreme laws of the land, the entire human race through Universal Declaration of Human Rights. I am tempted to conclude that the right to freely express does not depend on the whims and caprices of any government or politician.This is also corroborated by Article 10 of European Convention on Human Rights which provides the right to freedom of expression and information subject to certain restrictions there are in conformity with law necessary in a democratic society. This right includes freedom the freedom to hold opinions, receive and impact information and ideas.

Secondly, the Judiciary in Ghana under the court system uses tools or orders to protect the rights ofcitizens. These tools include mandamus, certiorari, injunction, prohibition and Habeas Corpus Act in the bid to safeguard human rights of people. Mandamus is a judicial writ issued as an order to an inferior court or commanding a person to perform a public or statutory duty. It is normally used when a public officer refuses to perform a duty.Injunction is an order by a court of competent jurisdiction to either restrain or compel a person to take an action. This can be categorised into positive (compelling) and negative (restraining) injunction. Prohibition is a tool used by a superior court directing a lower court to stop taking an action it is taking or it intends to take. For example, if a lower court is performing an action it has no authority to take, the superior court can issue an order of prohibition. Habeas Corpus Act compels the police to either grant bail to suspects in custody or put them before court within forty-eight hours. Certiorari is a method by which a superior court supervises lower court or administrative tribunal to quash a verdict of a lower court or administrative tribunal. The totality of this is that these orders are mechanisms provided by judiciary to enable citizens to seek redress on a matter.

Another way by which human right status of Ghana is being enhanced in line with international protocols is that Ghanaian citizens are granted the rights to seek international arbitration.This allows citizens and government to seek redress at courts outside Ghana. For example, Businessman Alfred AgbesiWoyome dragged Government of Ghana-Attorney General to International Chamber of Commerce and African Court of Justice and Human Rights, Arusha Tanzania over 51 million judgement debt matter. Even though in the case of International Chamber of Commerce Alfred Woyome failed to deliver the burden of proof, the legal avenue still grants him the autonomy and liberty to substantiate his claim at African Court of Justice and Human Rights, Arusha Tanzania. The totality of these is rooted in the fact that the burden of proof is on Woyome to justice his case in line with the rules of admissibility for the court to make a determination. Another example is the Ghana –Ivory Coast maritime boundary dispute at International Tribunal of the Law of the Sea (ITLOS). They had the rights to seek international arbitration. The nitty-gritty of the matter is that the case of Ivory Coast Legal Team was actually on one leg and fell when it was knocked by the weight of evidence from their Ghanaian legal puritans. This victory was possible becauseInternational Law of the Sea has been in force.

However, there are areas that Ghana is failing when it comes to upholding human rights of citizens including freedom of speech and expression as follows:

First of allis the abuse of human rights and misapplication of the law at prisons. For example, there are reported cases of human rights abuse at the various prisons in the country. For instance, Class FM dated January, 18, 2017 aired a story of an inmate, Emmanuel Oduro at Nsawam Prison who was in coma after he was severely slapped by a prison officer for using a mobile phone. These incidences occur as a result of either misapplication of law, abuse of human rights or ignorance of the law. In most cases, victims suffer and culprits go scot-free. Such victims are either inmates or prison officers. Ghana cannot escape breaches of human rights. This is rooted in the fact that genuine concerns are being raised about unfair trials, poor conditions, overcrowding and congestion in prisons for convict on death row. 2017/2018 Amnesty International Report revealed poor conditions of prisons in Ghana.

Furthermore, Ghana is failing to expunge death penalty from the law book. Even though Ghana has signed on to international protocols to delete the death penalty from our laws, government has been dragging its feet on the matter. For example, 2017/2018 Amnesty International Report shows that scores of people have been on the death row, including six officials considered to be suffering from mental and intellectual disabilities. Inmates experienced lack of access to healthcare and lack of educational facilities. Many death row inmates revealed that they had not received legal representation during trials. Proposal by Constitution Review Implementation Committee under late Prof. John Evans Atta Mills’Administration to abolish the death penalty has been left to gather dust due to delays in the review process. The sanctity of life is valuable in the Ghanaian psyche and cannot be gambled with judicial uncertainty.

Not all but also, rule of law presupposes that all men are equal before the law but in practice, it is not true. This is because judges enjoy judicial independence and cannot be prosecuted for wrong verdict. Diplomats enjoy diplomatic immunity which the ordinary Ghanaian does not. There are ample reasons to say that there is unfair treatment when it comes to application of the law. The principle of social justice states that all men must be treated equally. For example, Francis Agyare was incarcerated at Nsawam Prison for over fourteen years without wrongdoings or any criminal act. He was arrested in a swoop at James Town and remanded. It took intervention of Human Rights Lawyer Francis Xavier Kojo Sosu to drag government to court over the matter and secured verdict in favour of Francis Agyare. Otherwise he would have gone home empty after over fourteen years at Nsawam prison without criminal act.

Apparently, another issue is the maltreatment of Persons with disability. The Disability Act compels government to make sure that public buildings are disability friendly. Over ten years after the passage of the law, Ghana has failed to make public buildings disability friendly. This is a fragrant disregard for human rights laws.

In addition, there is limited access to justice particularly for citizens from low income backgrounds. The Legal Aid Scheme continues to suffer from inadequate funds. Evidence from 2017/2018 Amnesty International Report shows that only twenty-three lawyers were rendering legal aid to Ghana with estimated population of over twenty-eight million.

As Ghana wraps up preparations to go for the pending United Nations Universal Periodic Review (UPR), let me draw the attention of government and Commission on Human Rights and Administrative Justice (CHRAJ) to the following 1992 Constitutional provisions:

· Article 12

· Article 17

· Article 21 (b)

· Article 34

· Article 35 clause 1, 4 and 5.

· Article 36 clause 2 (b)

· Article 37 clause 3 states “Respect for international Laws in whatever you do”.

To be candid, it is my opinion that the above provisions and other international laws/protocols are complied with, Ghana’s human rights status will be improved devoid of poor performance at the next UN Universal Periodic Review. Progress is always a good mark of man and democratic Ghana must follow the transition to progress. The attention of the book runners of the state ought to be drawn to the fact that they are obliged by the protocols to operationalise the provisions. CHRAJ cannot afford to sleep on the job…otherwise the fate/destiny of society is hanged in the balance. The fate of Ghanaian society is so precious and priceless to be gambled with.

RECOMMENDATIONS

In view of the above, it is significant in opinion to propose the following recommendations for amendment. If respected for its ability, it will be a light upon thy path in the night and staff in thy hands against all odds:

· The death penalty in Article 13 of the 1992 Constitution should be abolished and replaced with imprisonment for life. The sanctity of life is valuable in the Ghanaian psyche and cannot be gambled with judicial uncertainty. Judges should shift focus from custodian to reformation and correctional sentencing. The fact that one is guilty does not imply that the talents in him should be wasted.

· The Legal Aid Scheme should be set up as an independent constitutional body adequately funded by the state to safeguard right to fair trial.

· Right to Information Bill should be operationalised after passage to enhance access to information to enable citizens to make well-informed decisions. Appointing Information Minister to superintend over the operational office of RTI in any shape or form is completely out of place. An independent person should be appointed by civil society organisations and Ghana Journalist Association in order to ensure that such a public officer is not at the beg and call of the president of the day.

· Passage of the Broadcasting Bill is urgent and must not be left in the parliamentary hansard to rot.

· Article 14 of the 1992 Constitution should be amended to reduce period of pre-trial detention from forty-eight hours to twenty-four hours.

· Affirmative Action Bill should be passed into law to guarantee equality of freedom from discrimination against the vulnerable in society.

· The argument of whether the International Human Rights Law is a subset of the International Humanitarian Law should be tested in a competent court of jurisdiction.

· The constitution should be amended to take away the president’s power to appoint the Chief Justice, IGP and give to civil society organisations based on merits and competence so that they are not at the beg and call of the Commander-in-Chief of Ghana Armed Forces or act according to the whims and caprices of their pay masters.

To be candid, what l am strongly against in human rights matters is any amendment that will grant rights to same sex marriage in Ghana. The grounds for my argument is premised on the judicial precedent set by European Court of Human Right that homosexual marriage is not a human right. The judgement of Human Rights Court of Strasbourg-France, the world Court of human rights has unanimously established that “there is no right to homosexual marriage”. The forty-seven judges of forty-seven countries of the Council of Europe who are members of the absolute court of Strasbourg otherwise known as the world apex human rights court issued statement of relevance that surprisingly silenced information of progressivism and its area of influence. In fact, the forty-seven law lords unanimously upheld that “there is no right to homosexual marriage”. The verdict was based on myriad of philosophical and anthropological considerations premised on natural order, common sense, scientific reports and positive law.

Apparently, the judgement was based on Article 12 of the European Convention on Human Rights, equivalent to articles of human rights treaties, as in the case of 17 of the Pacts of San Jose and nº 23 of the International Covenant on Civil and Political Rights. In this landmark matter, the court upheld that the concept of family is not only completeness “the traditional concept of marriage, that is the union of a man and a woman”, but also that they should not be imposed on governments “obligation to open marriage to persons of same sex”. With reference to the principle of non-discrimination, the court stated that there is no discrimination since “states are free to reverse marriage to heterosexual couples”.

In this regard, the signal ought to made clear that government of Ghana should not fall prey to such trappings and lobbying by external forces and their self-seeking collaborators to legalise same sex marriage in Ghana.

Conclusion

In conclusion, it is obvious from the above intellectual discourse that protection of human rights including freedom of speech and expression is crucial to the fulfilment of Ghana’s obligations in accordance with international protocols and best practice. It is therefore, significant in my opinion to encourage government to safeguard fundamental human right of the citizenry by upholding the relevant laws through policies under Ghana’s democratic agenda. If respected for its ability, ‘’it will be a light upon thy path in the night and staff in thy hands against all odds’’.

References

· Accra based Class 91.3FM Midday Bulletin dated January, 18, 2017.

· 2017/2018 Amnesty International Report.

· 1992 Constitution of Ghana.

· Report of the Constitution Review Commission of inquiry, 2012.

Source: africaneditors.com /Jerry Akornor