Former Judge of the International Criminal Court (ICC) Sanji Monageng says the granting of immunity to siting Heads of State and senior government officials for international crimes as premised in the Malabo Protocol of the African Union is viewed as a fertile weakness for influential people to engage in violation of human rights.

Meanwhile, Judge Monageng says frustrated judges in weak African judiciaries end up succumbing to pressure and leaving the bench due to a lack of strong political will to strengthen capacity.

Judge Monageng said this, Tuesday evening, during the sixth annual Goma lecture held in honour of former University of Zambia Vice-Chancellor Professor Lameck Goma by the Southern African Institute for Policy and Research (SAIPAR) at the Southern Sun Hotel in Lusaka.

“On the question of immunity for Heads of State and senior government officials, when widespread and systematic violations of human rights are committed by the highest leadership in a state, usually impunity prevails, and this is because the local police, for instance, usually fall under the control and authority of those who have so much power. Institutions of human rights protection and justice are also usually ineffective to protect the rights of the vulnerable and to offer real and effective remedies in such circumstances. The Malabo Protocol grants immunity to sitting Heads of State and senior state officials for international crimes and this is seen a fertile weakness of the Malabo Protocol as a legal framework to take up international crimes. Right now, there are far too many atrocity crimes in Africa, such as extra judicial killings, torturing, the use of sexual violence as a weapon of terror and war and others and with atrocity crimes so rampant, Africa has little or no chance to develop,” she said.

“On paper, the AU remains committed to fighting impunity, but there is this mismatch between rhetoric and action in fighting impunity that is at the core of my concern about the African strategy. In reality, there is no existing mechanism to try perpetrators of international crimes in Africa at the moment and there is little or no state effort at creating a framework and a system of accountability for international crimes and effective remedies in Africa. If the fight against impunity is to succeed in our continent, there should be no immunity for mass atrocities. The principles of customary international law, the latent spirit of the AU Constitutive Act and the core AU human rights instruments all identify impunity as a danger to the development of Africa and any place in the world. The AU member-states need to reflect on these concerns about the protocol very seriously if the protocol is intended to be an effective legal instrument to contribute to tackling impunity in Africa and to bringing about justice and accountability for perpetrators, while offering effective remedies for victims of serious crimes and human rights violations. AU member-states also need to make appropriate budget support if the African Court is to be functional.”

And Judge Monageng said lack of cooperation from member-states and protection of witnesses are some of the biggest challenges that the international tribunal has been grappling with over the years.

“The ICC is totally dependent on states to cooperate with it. When I left the court last year, we were still grappling with issues of cooperating. The court does not have a police force or an army to enforce warrants of arrest, as a result, there are over 10 people roaming the streets in many countries who cannot be arrested because the court can’t do it. So, this is one example of lack of cooperation from states. The court also has a problem with protection of witnesses. This was a very big problem in one of the cases that were before the ICC…as you know, states own the airwaves, they know where everybody lives. If you try to run to Botswana, Zambia will find you very easily and if they want, they can kill you or they can threaten you into changing your mind if you were a witness for the court,” Justice Monageng said.

“The other problem is that, the ICC works in ongoing conflict situations and this causes very serious security problems for both staff and witnesses and this problem has led to a lot of the court cases collapsing because, ultimately, staff say: ‘we can’t go to Botswana because it’s unsafe,’ witnesses are saying ‘we are withdrawing our support because it has become too risky for us’ and, of course, over the years there has been serious increase in the workload of the court, but then, there is lack of adequate resources to match this increase. The ICC operates with a budget of about €150 million a year, but given the complexity of what it does and most of it you don’t know as you are sitting here. You can only know what it does when you are an insider like myself. So, even the €150 million is not enough.”

Meanwhile, responding to a question from a University of Zambia lecturer who wanted to know what could be done to ensure that the judicial systems in African countries were independent, Judge Monageng said governments needed to show political will in promoting the independence of the Judiciary.

“If you want to strengthen your Judiciary, talk to them. Have a conversation with the judges; ask them what the government should do. Strengthening of capacity is an ongoing exercise. But it needs political will, the leaders should be interested in a strong judiciary. If they are not, they will frustrate the Judiciary until some judges leave or succumb and give in to the pressures. Many of the African countries, especially the southern African countries, including Zambia, have constitutions that entrench separation of powers and establish independent judiciaries as separate branches of the government. Separation of powers is very important to nurture and develop our democracies. There cannot be separation of powers unless there are independent judiciaries in letter and in practice. Without independent judiciaries, there cannot be effective protection of human rights and entrenching of the rule of law,” she responded.

And asked what the future of the ICC was by former Law Association of Zambia (LAZ) president Linda Kasonde, who was moderating the lecture, Judge Monageng said the ICC needed alternatives.

“I see a future in the ICC, but this future is also accompanied by all sorts of problems and the ICC state parties really need to put their heads together, improve their cooperation with the court. Again, I cannot see the ICC going anywhere because we do not have any alternatives. Some people have said if Africa comes up with a court they are envisaging, and other regions also come up with their courts, and they are going to be competing with the ICC. But we forget that the ICC is the court of last resort, I think there will always be need for the ICC,” replied Judge Monageng.