ISS Today article written by Issaka K. Souaré, Senior Researcher/Acting Project Manager, Conflict Prevention and Risk Analysis, ISS Pretoria

On Friday, 27 January, the Conseil Constitutionnel (Constitutional Court) of Senegal announced its much-anticipated verdict on the validity or lack thereof of the various candidatures for the forthcoming presidential elections scheduled for 26th February. In its verdict, the Court validated the candidature of incumbent president Abdoulaye Wade and rejected that of three independent candidates. The latter include the internationally renowned music legend, Youssou Ndour. This immediately sparked waves of violence from opposition supporters that had assembled in the centre of Dakar for the whole day, awaiting the verdict of the Court. A police officer perished in the ensuing violence while many buildings were set alight. The opposition has vowed to do everything it can to prevent President Wade from running, considering his attempt for re-election for a third term as a “constitutional coup” in view of the constitutional clause that limits the presidential terms to two.

There is no denying the fact that the incumbent president is very advanced in age (85) and that running a country requires a lot of energy that he might not necessarily have, should he be re-elected. It is also true that some of his decisions and actions over the last 12 years have been quite controversial. It is equally true that he is vying for a third term and that the spirit of the 2001 constitutional amendment would have commanded him not to seek another term. However, it is necessary to engage with the objective facts of the debate and leave aside the subjective (or even emotional) ones in a bid to provide a more accurate analysis of the situation.

In their opposition to Wade’s candidature, opposition figures have put forth two main arguments, both of which have been rejected by the Constitutional Court. The first and the most prominent one is that Wade, having been elected for the first time in March 2000, and re-elected in 2007, would be violating the spirit of the 2001 constitutional amendment and the text of Article 27 of the constitution, which limits the presidential terms to two.. However, the Court notes that Wade’s candidature is not a violation of the Constitution in that when he came to power in 2000, the Senegalese constitution did not provide for a term-limit. It is Wade, through an amendment in 2001, that introduced this and, at the same time, reduced the length of presidential terms from seven to five years. But he still served for seven years for that first tenure, which no one disputed, indicating that everyone agreed that the new amendment could not be applied “retroactively”, and this is a well-known legal principle. And when the length of presidential terms was changed in yet another amendment in 2008 to move back from five to seven, Wade did not insist on serving for seven years, as this happened while he was already servicing his current term of five years, as per the 2001 amendment. The issue therefore seems to be a consideration between the spirit and the text of the constitution and, evidently, when these two collide, the latter prevails from a purely legal point of view.

The second argument made by Wade’s former prime minister and opposition candidate, Macky Sall, was to argue that the Court should not have validated his candidature because, in his declaration and application of candidature in early January, he did so in the name of his Senegalese Democratic Party (PDS) and an alliance of other parties and movements supporting him, called “Forces alliées 2012” (Fal 2012 or Allied forces 2012). According to the protesting opposition candidate, this contradicts the constitutional provision that requires partisan candidates to be nominated by “a registered political party or alliance of parties” and not by two of them. But the Court did not see this a double nomination, as the Fal 2012 is not a constituted political party and is only supporting the PDS.

Some argue that the Court, staffed by five judges appointed by Wade, was biased in his favour. While this might be possible, albeit not certain, it should be noted that the same Court rejected the appeals of Wade’s supporters against the candidature of Sall, as well as two other opposition candidates and former Wade allies, namely Wade’s former Prime Minister, Idrissa Seck and his former foreign minister, Cheikh Tidiane Gadio. Members of the ruling party had argued that the trio (including Sall) had not paid their taxes and that the law prevented anyone indebted to the taxman from standing for elected positions. The Court did not find them at fault and validated their candidacies.

The other controversy emanates from the invalidation of Ndour’s candidacy, which, it would appear, is fuelled more by the fame of the singer than by the substance of the verdict. For in addition to Ndour, two other candidates, Abdourahmane Sarr and Kéba Keinde, had their candidatures invalidated. The common denominator between the trio is that they are “independent candidates” not supported by any political party. Yet, Article 28 of the Constitution stipulates, inter alia, that any presidential aspirant not supported by a registered political party should include in his application the endorsing signatures of at least 10 000 registered voters. According to the Court, all three provided that number, with Ndour and Keinde submitting more than 12 000 signatures each but that they could only verify those of 8 911 for Ndour and 8 154 for Keinde.

As such, one could argue that the Constitutional Court reached a pertinent verdict. But this notwithstanding, it is preoccupying from a conflict prevention point of view that there is a high likelihood of election-related violence in the country, as opposition supporters have vowed to continue protesting. In view of this, and despite the law being on the side of president Wade, he would be well advised to consider renouncing his decision to run, particularly given his age and for someone who has always claimed that he is in favour of enabling the young generation. If he thinks he has development projects that only “he” can implement, then he may have failed to convince his collaborators about the pertinence of such projects. He cannot be the only person in Senegal that is capable of developing the country.

Should Wade insist to go ahead, perhaps the best strategy for the opposition going forward is in unity, but it is not likely having failed to do so in the past, despite promising attempts within the context of the Benno Siggil Senegal (Uniting for a Prosperous Senegal). This lack of unity can largely be attributed to personality quarrels among some of the opposition’s heavy weights, particularly Ousmane Tanor Dieng of the former ruling Socialist Party (PS) and Moustapha Niasse of the Alliance of Forces of Progress (AFP), both candidates under their banner of their respective parties. What is preoccupying however,, is the likelihood of election-related violence, either prior, during or after the poll in February. Having deserted his own PS party in 1998 and allied himself with Wade during the second round of the 2000 election, it would appear that many PS members find it hard to rally behind Niasse. Yet Niasse (72), may consider himself aging and find his chances of becoming president diminishing as time goes by. In fact, there are reports that he implicitly made this argument during discussions with Benno, promising to serve only one term, given that Dieng, 64, could still count on other terms. Indeed, agreement on the sacrifices and contributions that members of a coalition have to make, is one of the key conditions for the success or lack therefore of alliances according to game theories of coalition-building.

Gugu Dube, Researcher, Transnational Threats and International Crime, ISS Pretoria

Explosive remnants of war (ERW) consist of abandoned explosive ordnance and unexploded ordnance as a result of armed conflicts that pose significant threats to the survival and development of civilian populations. All too frequently they kill and maim the most vulnerable members of society and impede the reconstruction of a war-torn country or region.

In response to the effects of ERW, States adopted a landmark agreement in 2003 – Protocol V on Explosive Remnants of War, an additional protocol to the United Nations Convention on Certain Conventional Weapons (CCW)– which provides an international legal basis for reducing the risks from these explosive devices, for the first time. The CCW is also known as the Inhumane Weapons Convention. The purpose of the CCW is to ban or restrict the use of specific types of weapons that are considered to cause unnecessary or unjustifiable suffering to combatants or affect civilians indiscriminately.

Explosive remnants of war exist in many shapes and sizes, from small fuze detonators to large free-fall bombs or missiles, weighing up to hundreds of kilograms. According to Protocol V, the term ‘explosive remnants of war’ refers to unexploded ordnance and abandoned explosive ordnance, both linked to armed conflict. Unexploded ordnance (UXO) refers to munitions (bombs, shells, mortars and grenades) whether delivered from the air, the ground or, if the munitions end up on land or sea) that have been used but which have failed to detonate as intended.

Abandoned explosive ordnance (AXO) refers to munitions that have been left behind by a party to an armed conflict, whether deliberately or because they have been dumped or forgotten. AXO may be individual items on the battlefield, such as a hand-grenade, larger weapons caches or ammunition depots. It does not matter whether or not the munitions have been fused or armed, they are still considered AXO if they have not been used/exploded.

The Protocol, which is the first multilaterally negotiated instrument to deal with the problem of unexploded and abandoned ordnance, is intended to eradicate the daily threat that such legacies of war pose to populations in need of development and to humanitarian aid workers operating in the field The Protocol’s entry into force on 12 November 2006 provided a great opportunity to further strengthen international efforts to tackle the consequences of ERW. One of the key provisions of Protocol V is that “Parties shall, to the maximum extent possible, record and retain information on the use of explosive remnants of war, and make available such information to the party in control of the affected areas. Parties shall take all feasible precautions to protect civilian population from the risks and effects of explosive remnants of war”. Landmines and explosive remnants of war are not only a danger to people’s lives but they continue to prevent farmers from accessing land and this impacts on livelihoods, food security, and rural development in affected countries.

South Africa is party to the CCW and has actively participated in CCW deliberations in recent years. The National Assembly approved ratification of CCW Protocol V on 10 November 2010 and deposited the ratification instrument on 24 January 2012. The Protocol will enter into force for South Africa on 24 July 2012. By depositing it’s instrument of ratification, South Africa continues to support progress on reducing the social, economic and environmental impact of mines and ERW on the multilateral disarmament agenda. In so doing, this will strengthen the multilateral system of governance aimed at enhancing international peace and security and therefore boost universal application of the provisions of the CCW.

To date, there are 77 states parties to Protocol V of which only a few are African states (Cameroon, Gabon, Guinea-Bissau, Liberia, Madagascar, Mali, Sierra leone, South Africa and Tunisia). According to statistics released by the Landmine Monitor during 2010, African states/territories that experienced high ERW causalities included - Angola, Chad, Democratic Republic of the Congo (DRC), Eritrea, Guinea-Bissau, Mali, Mozambique, Somalia, Somaliland, Uganda, Western Sahara and Zambia. The estimated number of recorded casualties for this period was 858 but due to incomplete data collection, it is most likely that the actual casualty figure is higher. Despite this, there has been a significant global reduction of recorded mine/ERW casualties over the past decade.
Gugu Dube, Researcher, Transnational Threats and International Crime, ISS Pretoria

Explosive remnants of war (ERW) consist of abandoned explosive ordnance and unexploded ordnance as a result of armed conflicts that pose significant threats to the survival and development of civilian populations. All too frequently they kill and maim the most vulnerable members of society and impede the reconstruction of a war-torn country or region.

In response to the effects of ERW, States adopted a landmark agreement in 2003 – Protocol V on Explosive Remnants of War, an additional protocol to the United Nations Convention on Certain Conventional Weapons (CCW)– which provides an international legal basis for reducing the risks from these explosive devices, for the first time. The CCW is also known as the Inhumane Weapons Convention. The purpose of the CCW is to ban or restrict the use of specific types of weapons that are considered to cause unnecessary or unjustifiable suffering to combatants or affect civilians indiscriminately.

Explosive remnants of war exist in many shapes and sizes, from small fuze detonators to large free-fall bombs or missiles, weighing up to hundreds of kilograms. According to Protocol V, the term ‘explosive remnants of war’ refers to unexploded ordnance and abandoned explosive ordnance, both linked to armed conflict. Unexploded ordnance (UXO) refers to munitions (bombs, shells, mortars and grenades) whether delivered from the air, the ground or, if the munitions end up on land or sea) that have been used but which have failed to detonate as intended.

Abandoned explosive ordnance (AXO) refers to munitions that have been left behind by a party to an armed conflict, whether deliberately or because they have been dumped or forgotten. AXO may be individual items on the battlefield, such as a hand-grenade, larger weapons caches or ammunition depots. It does not matter whether or not the munitions have been fused or armed, they are still considered AXO if they have not been used/exploded.

The Protocol, which is the first multilaterally negotiated instrument to deal with the problem of unexploded and abandoned ordnance, is intended to eradicate the daily threat that such legacies of war pose to populations in need of development and to humanitarian aid workers operating in the field The Protocol’s entry into force on 12 November 2006 provided a great opportunity to further strengthen international efforts to tackle the consequences of ERW. One of the key provisions of Protocol V is that “Parties shall, to the maximum extent possible, record and retain information on the use of explosive remnants of war, and make available such information to the party in control of the affected areas. Parties shall take all feasible precautions to protect civilian population from the risks and effects of explosive remnants of war”. Landmines and explosive remnants of war are not only a danger to people’s lives but they continue to prevent farmers from accessing land and this impacts on livelihoods, food security, and rural development in affected countries.

South Africa is party to the CCW and has actively participated in CCW deliberations in recent years. The National Assembly approved ratification of CCW Protocol V on 10 November 2010 and deposited the ratification instrument on 24 January 2012. The Protocol will enter into force for South Africa on 24 July 2012. By depositing it’s instrument of ratification, South Africa continues to support progress on reducing the social, economic and environmental impact of mines and ERW on the multilateral disarmament agenda. In so doing, this will strengthen the multilateral system of governance aimed at enhancing international peace and security and therefore boost universal application of the provisions of the CCW.

To date, there are 77 states parties to Protocol V of which only a few are African states (Cameroon, Gabon, Guinea-Bissau, Liberia, Madagascar, Mali, Sierra leone, South Africa and Tunisia). According to statistics released by the Landmine Monitor during 2010, African states/territories that experienced high ERW causalities included - Angola, Chad, Democratic Republic of the Congo (DRC), Eritrea, Guinea-Bissau, Mali, Mozambique, Somalia, Somaliland, Uganda, Western Sahara and Zambia. The estimated number of recorded casualties for this period was 858 but due to incomplete data collection, it is most likely that the actual casualty figure is higher. Despite this, there has been a significant global reduction of recorded mine/ERW casualties over the past decade.

ISS Today written by Jakkie Cilliers and Liesl Louw-Vaudran, Executive Director and Associate Editor, ISS Pretoria

The 18th Summit of the African Union (AU) that took place in Addis Ababa this week has led to a sudden surge of interest into the workings of the organisation. This is due to the intense battle for chairperson that was fought between the incumbent former Gabonese foreign minister Jean Ping and South African home affairs minister Nkosazana Dlamini-Zuma.

The Constitutive Act of the African Union stipulates that the 10 key members of the AU Commission – effectively the bureau of the AU – will be elected every four years. The chairperson, deputy chair and commissioners can serve a maximum of two four-year terms with the chair and deputy chair elected by the Assembly of Heads of State and Government during a secret ballot, as was held Monday 30 January. Each of Africa’s five regions may have 2 members on the commission (including chair and deputy chair), who are elected by the Executive Council (consisting of foreign ministers of Member States) following the outcome of the vote on the chair and deputy chair.

Since its inception in 2002, the AU has had three chairpersons: former Ivorian foreign minister Amara Essy, former Malian president Alpha Omar Konaré and Ping, elected in February 2008. Many had expected Ping to be re-elected to this position at this week’s summit, since he was generally seen as a relatively effective mediator and managed to find consensus amongst member states on a number of key peace and security issues. Though some accuse him of not being strong enough to take a stand on issues like the controversial Nato military intervention in Libya in 2011. In addition, the AU as an organisation still remains hugely lacking. It is understaffed, with 324 vacant posts, which is 48% of its staff compliment. Many departments also underspend massively on their budgets with an average budget utilisation of 37%.

South Africa’s bid to have its home affairs minister and former foreign minister Dlamini-Zuma elected to the position of chairperson was only announced late in 2011. However, South Africa’s minister of international relations and cooperation Maite Nkoane-Mashabane told the media at the summit that the unanimous decision to put forward Dlamini-Zuma’s candidacy was taken by all SADC member states at its summit in August 2011.

After much behind-the-scenes lobbying the Assembly proceeded with 3 rounds of voting and no candidate managed to achieve a two-thirds majority – the requirement for the election of chairperson. During the fourth round of voting, where Ping was the only candidate, he still failed to get two-thirds of the votes and the election was suspended. Ping, his chairperson Erastus Mwencha and the entire team of commissioners will now stay on until the next summit that will be held in Lilongwe in Malawi in June this year. It is still unclear whether Ping and Dlamini-Zuma will be allowed (or would want) to stand again for election to this position.

For South Africa and for its foreign policy, this is a serious setback. While the fact that Ping couldn’t achieve a two-thirds majority in the final round is indicative of a unified response from SADC Member States, South Africa as a powerhouse on the continent was expecting to win this election, for the voting also indicates that opposition to Ms Dlamini-Zuma was similarly intractable.

One of the two main reasons for the outcome is undoubtedly the foreign policy blunders made by South Africa during the term of president Jacob Zuma, especially during 2011. In both major crises that the continent faced last year, in Côte d’Ivoire and in Libya, South Africa was seen to act without due consultation and made a number of contradictory decisions when it came to peace and security issues. South Africa’s stance on the Ivorian crisis in early 2011, where it was seen to favour the incumbent Laurent Gbagbo, especially angered Nigeria, the regional powerhouse. The fact that South Africa voted in favour of Resolution 1973 of the United Nations Security Council that authorized a no-fly zone against former Libyan dictator Muammar Gaddafi and soon afterwards strongly opposed Nato’s military intervention in Libya, was also extremely harmful to the country’s reputation. Key countries, the UK and France in particular, subsequently abused the UNSC resolution to pursue a regime-change strategy and South Africa was left to scramble for cover. Dlamini-Zuma, a fearless and strong willed politician, who is extremely highly regarded for her management skills and work ethic, was in this sense the victim of her country’s foreign policy, despite the fact that she was standing as a regional candidate on behalf of southern Africa.

The second, and perhaps more important reason for her failure to secure the position – at least in this round – was the fact that South Africa had broken an unwritten rule in the AU that anchor states should not occupy the position of chairperson of the AU to prevent power plays from paralysing the continent. In fact, one could argue that the bid by South Africa and Nigeria’s strong opposition to it (supported by a large Francophone block), was what caused the stalemate during the voting. If Dlamini-Zuma had won the vote and Nigeria would decide to oppose everything the chairperson does during her term simply because she is South African, that would be extremely harmful to the continent. Indications are that Kenya, Egypt, Senegal, Ethiopia and other larger countries also voted against Dlamini-Zuma possibly reflecting a common resistance to South Africa, or indeed possibly any of Africa’s powerhouse countries to stand for the position of Chairperson.

The events at the AU Summit these last couple of days have raised the profile of the AU and the Commission and placed renewed focus on the importance of strengthening the leadership of Africa’s continental institution. This is certainly an important step towards creating a more effective and efficient AU. In addition, the election has given Africa’s regional powers an opportunity to test their strength, in all likelihood in preparation for the much bigger future battle for a permanent seat on the UN Security Council. And the key lesson is clear – despite its relative power and influence, South Africa should not take its African support base for granted and should not readily assume, at the G20 or elsewhere, that it speaks for the continent.

ISS Today article written by Sandra Adong Oder, Senior Researcher, Conflict Management and Peacebuilding Division, ISS Pretoria

One on going peace and security issue facing Africa, as it concludes its the 18th Ordinary Session of the Assembly of the Heads of States and Governments of the African Union (AU) is the fight against the Lord’s Resistance Army (LRA) in Uganda. Talk is now of the accelerated implementation of a recent AU initiative of cooperation against Uganda’s Lord’s Resistance Army (LRA). The initiative’s launch was authorised by the AU Peace and Security Council on 22 November 2011 and is supported by the United Nations (UN) and other members of the international community. What is the likelihood of a successful outcome of this regional military approach?

In principle, the AU is demonstrating the will to decisively deal with the LRA problem, for if it is done right, the new initiative could eliminate the LRA threat in the region. While this initiative is designed to remove or reduce the threat of the LRA, there is no guarantee that it will facilitate the termination of the local-level conflict drivers in LRA-affected countries. However, this initiative comes after several botched attempts at dealing with the LRA problem. Before initiating a new multilateral response, it is worth asking why previous multilateral initiatives were such a dismal failure. Paradoxically, the decision to deploy a regional intervention force demonstrates the impact that the LRA had on the region. Although the insurgent group’s threat capability has been reduced, it is still easily able to abduct its fighters and loot for its sustenance and supplies.

The new initiative can be successful, but the stakes are higher this time and failure is not an option. The conflict with the LRA is a regional issue directly affecting the people and governments of the Democratic Republic of the Congo (DRC), the Central African Republic, the Republic of South Sudan and Uganda. LRA attacks on their territories have arguably galvanised the four countries, and a regional approach would make sense. While it is obvious that the political and technical meetings in Addis Ababa will merely be a formality in ensuring the acceleration of agreed activities, there is a danger of misinterpreting and misplaying this initiative, whose strategy is aimed at achieving a final settlement of the LRA problem. Several points can be made in this regard.

Firstly, the reliance on a regional intervention force, whose mandate is yet to be finalised, is based on some assumptions that the LRA is an easy problem to solve, and that the insurgent group’s threat capability has been reduced. This may prove to be a grave mistake, as indicated by the failure of previous military campaigns. In the minds of many, any new campaign will not only have to avoid the shortcomings of previous ones, but will have to deal with a hamstrung regional military approach that emphasises force projection over territorial defence. This time round, the consequences of another failure will be prohibitive, in the sense that once committed, the AU mission would then have to use all necessary force to avoid failure and would be under immense pressure to escalate military involvement to ensure success, with grave consequences for all concerned.

Secondly, the new regional intervention force relies on the same regional forces that cooperated in previous failed military initiatives and still harbour historical antagonism – why will they win this time? The new force should therefore not merely improve on existing military operations, but needs to refrain from merely duplicating operational structures and techniques that do not work, while at the same time leaving the military command in the hands of national governments, which could fuel suspicion and intraregional tensions within the alliance, which in turn could severely limit cooperation and coordination – and hence the AU’s overall ownership of the mission.

Thirdly, the AU decision to mobilise a regional force is a political one, and undoubtedly this will affect the direction, duration and outcome of the initiative. Given the context of previous military campaigns, the questions of power, interests, and bureaucratic and domestic politics will be important factors to consider. As Chester Crocker puts it, ‘intervention (just like non-intervention) is an inherently political action with inescapable political consequences’. What would be of interest to the regional actors concerned is the avoidance of the dominance of Uganda, whose army is better trained and armed to deal with counterinsurgency.

Fourthly, the timing of the regional initiative is a crucial element, given the fact that the presidents of the four countries involved have more pressing issues to deal with domestically, and this may affect the dynamics of the regional initiative. The LRA is currently out of Uganda and hence its perceived threat has been transferred to populations across the border. Kinshasa and the DRC army have downplayed the LRA problem, and its presence in north-eastern Oriental Province, over 1,000 kilometres from Kinshasa, makes it a low-priority matter for the DRC authorities, as it does not feature as a key security issue in the capital. Bangui does not feel threatened by the LRA’s sporadic attacks in the remote south-east, since it does not threaten key economic interests or political constituencies. Juba has more pressing problems of its own and hence the LRA does not feature as a key security threat.

Lastly, the LRA stalemate has had its various phases, and in its current phase of de-escalation and abatement, it would be prudent to complement the regional initiative with non-military approaches to conflict prevention. Taking place in remote areas largely devoid of state authority, the LRA still continues to cause destruction among communities. Civilian protection should therefore be a priority, with progress monitored and reviewed and the means for doing so elaborated before deployment. A World Bank report on the diagnostic study of the LRA submitted to the International Working Group on the LRA six months ago argues that none of the previous strategies in use by the forces and agencies in the region is adequate to the challenge presented by the organisation. In response to this fact, the report proposes a rigorous study of the historical context of the problem, the potential for a negotiated solution, the relative capacities of the forces available and the political issues affecting their availability as the first step in generating more creative and effective solutions, and points out that humanitarian work can only mitigate a situation that requires, ultimately, a comprehensive agreement that includes political, security and development aspects.

If the new regional initiative does not take these matters into account, there is a good chance of failure and the region may be condemned to seeking yet another a solution to a low-intensity security issue, while at the same time having to deal with governments that continue to deny the real threat of the LRA. If the regional intervention force can improve on the current situation, then so be it, with, of course, a few caveats drawn from history, if one is willing to learn from the past.

Dismantling the LRA is a core cross-border responsibility, dependent on regional security cooperation and increased levels of response to the national conflict drivers in the affected countries. The price of conflict is high, but it seems that the cost of establishing durable peace in the LRA-affected countries will be even higher.

ISS Today written by Andrews Atta-Asamoah, Senior Researcher, Conflict Prevention and Risk Analysis Division, ISS Pretoria Office

As judge Ekaterina Trendafilova read out, on 23 January 2012, the carefully crafted ruling of the International Criminal Court (ICC) on the confirmation of charges against the Ocampo Six, few Kenyans may have had doubts about the impact of those words on the political and security landscape of their country, and particularly the political destinies of two of Kenya’s presidential hopefuls.

As millions of people stayed glued to their TV and radio sets and some thousands to internet streams, the less than 20 minutes broadcast was reminiscent of the 15 December 2010 broadcast in which the prosecutor of the ICC, Luis Moreno-Ocampo, named Deputy Prime Minister and Minister of Finance Uhuru Kenyatta, Eldoret North MP William Ruto, Head of the Civil Service Francis Muthaura, Former Police Commissioner Major General (rtd) Mohammed Hussein Ali, Tinderet MP Henry Kosgey and journalist Joshua Arap Sang as those accused of bearing the greatest responsibility in the post-election violence in 2007/2008.

One could guess as the ruling was read, for a moment, the extent of anxiety of millions of Kenyans because the build-up to the ruling had been marked with simmering debates and persistent calls from various stakeholders for peace, regardless of the direction of the ruling. When the ruling finally ended with confirmation of charges against four of the six individuals, few people were surprised about the outcome of the ruling because of the nature of the cases that were presented during the hearing and also particularly because there was the general expectation that some of the charges would certainly be confirmed.

Whereas the ruling may not have surprised many, it represents an important milestone in Kenya’s quest for reforms and is likely to shape the country’s political landscape and history in numerous ways. First, even though it does not constitute guilt, the ruling advances the interest of many who appreciate the need for justice as a prerequisite for dealing with impunity on the continent. Kenyans have in recent times persistently pushed for the realisation of a country where impunity has no place. After the post-election violence and the apparent difficulties that would have impeded the establishment of a local judicial process to prosecute the masterminds of the violence, serious questions remained regarding justice for the victims of the violence.

The ICC process has been instrumental in helping answer some of the questions, which still linger in the minds of many. In the past, getting such political bigwigs to answer for their actions anywhere in Africa would have been inconceivable. However, by virtue of the ICC, it can be strongly argued that the days of “untouchables” in the political history of African states is meeting its due challenge. Together with the burgeoning citizen and civil society pressure, gradual increase in the independence of state institutions, and progress in entrenchment of rule of law on the continent, those who still harbour such considerations should beware of the changing times because they are increasingly drifting to the wrong side of Africa’s history. Such changing environments are crucial in establishing the tenets of political responsibility and circumspection on the part of individuals and particularly the political leadership of states in Africa in their dealings with the masses.

Whereas the emerging debate after the ruling has focussed primarily on the two presidential hopefuls, the inclusion of Joshua Arap Sang, a KASS FM Radio executive is perhaps the second most important contribution of the ruling to shaping the political history of Africa. Since the emergence of media pluralism in the advent of democracy in Africa, many countries have seen a proliferation of private media houses, which have contributed immensely to the entrenchment of democracy. In many situations, however, the political and ethnic neutrality of the media practitioners leaves much to be desired. The media in some countries has been known to exhibit little neutrality and professionalism in the discharge of their duties as journalists. Media practitioners therefore often project political and ethnic biases and sometimes offer their media vents as platforms for broadcasting hate speeches, incitements and ideas often detrimental to peace and stability. The confirmation of charges against Sang does not only project the need for circumspection and ethical practice of journalism, but also establishes the place of the media as important stakeholders in the quest for peace and stability. It also registers the fact that irresponsibility in media reportage capable of undermining peace is frowned upon by both domestic and international legal regimes.

In addition to the above, the practical implications of the ruling will be felt in the political landscape of Kenya as it borders on the fate of Deputy PM Uhuru Kenyatta and Honourable William Ruto in the next elections. Prior to the ruling, the two politicians insisted that the outcome would not stop their bid for the presidency. Now that the ruling has gone against them, the reality of their political ambitions vis-à-vis the requirements of the new constitutional dispensation and the choices of Kenyans set the stage for a crucial test of the emerging structures of the state and the leadership qualities of the two.

At the moment, the mood of Kenyans about their suitability or eligibility for presidency are mixed. Whilst a section of Kenyans argue that they can contest, a good section of people hold the view that the named presidential hopefuls need not even attempt it because the ruling questions their integrity for the post of presidency. The possibility of a legal battle ensuing is thus very high in the event of any attempt to bar them from contesting in the next elections and would require legal and academic brains to scrutinise all the laws of the land in search of legislation that may bar or exonerate the two. Already there are on-going debates about the section of the new constitution that may hold the key to prevent them from vying for presidency. Within the growing debate, chapter six of the new constitution has been prominently quoted in this regard.

The chapter provides for leadership, integrity and specifically requires state officers to bring “honour to the nation and dignity to the office”, and to “promote public confidence in the integrity of the office.” It also outlines the guiding principles of leadership and integrity to include “personal integrity, competence and suitability.” Within the interpretation of this provision, the real contention may emerge around the definition of integrity and its immediate relevance to the context of the ICC. A section of Kenyans have already begun arguing that the provision for integrity relates to economic crimes and not cases such as the ICC thus preparing the ground for what appears to be an emerging heated debate. Another key issue, which will need to be resolved, relates to whether confirmation of charges necessarily constitutes guilt against the backdrop that in reading out the ruling, Judge Trendafilova emphasised that the burden of prove of guilt lies on the prosecutor should the trial commence.

In the event of a court ruling barring or permitting the two to contest the presidency, the emerging culture of constitutionalism and rule of law will be certainly tested as well. Already, the respect surrounding the High Court ruling on the date for the next election has raised hopes about the rule of law, respect for the supremacy of the new constitution, and the independence of the emerging structures of the state. If a court decision bars the two from contesting in the presidency and all avenues for redress get fully utilised, they may probably take the matter to the “courts” of public opinion which may end up securitizing the sensitivities surrounding the loyalty of people them. However, given the stern warning by the Judge during the ruling against inciting people, their leverage in exploiting the passions of ardent supporters is dealt a huge blow.

ISS Today article written by Abdelkader Abderrahmane, Researcher, Conflict Prevention and Risk Analysis Division, ISS Addis Ababa

In April 2011, the mandate of MINURSO—the United Nations (UN) Mission for the Referendum in Western Sahara, which has been tasked since 1991 with maintaining a ceasefire and monitoring Africa’s longest territorial dispute between Morocco and the Sahrawi Polisario Front— was yet again renewed. Twenty one years since MINURSO was set up, closer attention ought to be placed on the Western Saharan dispute, one which has exhausted and frustrated a large number of UN special envoys.

It is important to recall that the occupation of the Western Sahara - a land once described by a MINURSO observer as “the worst police state I have ever seen”- by Morocco is in blunt violation of international law. Back in 1963 the Western Sahara was included in a list of territories, identified by the UN, which sought self-determination. The notion of self-determination was already enshrined in the UN Charter and is supported by UN resolution 1514 which stipulates that “all people have the right to self-determination”. This was further supported by the International Court of Justice (ICJ) in a ruling on October 16th 1975 when it declared that the Western Sahara was not a territory without a master (terra nullius) at the time of its colonisation by Spain. The ICJ judgement, therefore, declared that Morocco had no valid claim on the Sahara based on any historic title.

Having said that, Moroccan intransigence has only been possible with the biased involvement of Western states, principally the US and France, aided no less by Saudi Arabia’s massive financial handouts. This can be explained by the fact that Morocco has long been considered a stable regional Western ally, one that maintains strong economic ties with the US and the European Union. Morocco’s pro-Western antics, however, do not detract from its continued occupation of the Western Sahara. Such a double standard policy can also be compared to the liberation of Kuwait in 1991. Indeed, the latter’s invasion by Iraq was based on historic claims similar to Morocco’s, but was rightly rejected by the UN Security Council.

Similarly, in the case of Sudan, Western powers were deeply involved for Khartoum to finally accept the idea of an independent South Sudanese state. However, regarding the Western Sahara, neither the Security Council nor Washington nor Paris has ever acted against Rabat. Moreover, in April 2011, Paris threw all its diplomatic weight at the UNSC to prevent the renewal of MINURSO’s mandate.

It is also probably time for the African Union (AU) to become more actively involved in this conflict and put all its diplomatic weight to find a final solution. In this period of profound political changes affecting North Africa, the AU must put more pressure on the USA, France and the United Nations (UN) for them to engage in serious and genuine talks on this issue.

Indeed, given the absence of any resolution to this protracted conflict on the horizon, any hope for a referendum may now rest on the emergence of a North African boisterous civil society. The so-called ‘Internet and Facebook generation’, which has succeeded in ousting despotic regimes in the region, may well in the future unite and become a transnational force to press for a solution. Change is already in the air: Moroccans, who are constitutionally bound not to challenge the country’s position on Western Sahara, have quietly begun questioning the legality and high financial cost of the continuing occupation of this territory. Additionally, a growing number of Moroccan settlers in the occupied territory are beginning to consider the idea of a Sahrawi independence. These settlers are indeed all too aware that if Morocco were to ever cede on the idea of Western Sahara’s independence, the tax and other economic privileges that they currently enjoy to live in the occupied territory would definitely end with the territory’s independence. And after having lived there for so long, they may well decide to remain in a newly independent Western Sahara.

Today, this long-running conflict has become a powerful motivator for the Sahrawi people to achieve their nationalist ambitions. They are profoundly convinced of the justice of their cause and undoubtedly believe that in the end, it will prevail just as it has happened in Eritrea, Namibia, East Timor and more recently in South Sudan. Given the current political dynamics of the region, Morocco’s current ruler, Mohamed VI, would do well to consider that even the harshest forms of repression are very difficult to sustain.

The protests against the Moroccan occupation in November 2010 in Al-Ayun and other cities in the Western Sahara should only be a reminder to Rabat as North Africa uprisings were just the continuity of the Al-Ayun protests. Morocco can either help facilitate an amicable solution to the Western Sahara conflict, one in which its economic interests remain firm, or the status quo ante may one day witness a violent rupture, one in which any future peaceful relations with the Polisario, may forcibly end at the hands of a bulging tide of people power.

Morocco’s occupation of the Western Sahara is primarily motivated by the immense natural wealth present in the region. Indeed, Western Sahara has some of the world’s biggest phosphate reserves, which provides a tremendous income stream for Morocco, together with the revenue generated from the local fishing industry. This revenue is crucial for Morocco given the huge sums Rabat has poured into the territory to cover tax incentives it provides to Moroccan settlers who live there as well as the cost of maintaining its army in the region (some 100,000 soldiers are stationed there, making up for a third of the total Moroccan population present in the territory) - an army that has also strong economic investments and interests in Western Sahara. Furthermore, a withdrawal of its troops would also be a conundrum for Rabat, which would have to find a solution for those soldiers that would no longer be needed. Finally, from a geo-strategic perspective, Rabat is also aware that by withdrawing from the Western Sahara, its ambition to become the regional leader would literally vanish.

ISS Today article written by Hopolang Selebalo, Junior Researcher, and Patrick McLennan, Research Assistant, Frederick S. Pardee Centre for International Futures, Governance and Corruption Division, ISS Cape Town

In 2008, for the first time in human history, the number of people living in urban areas outstripped the rural population; however, the same will not occur in Africa until nearly 2050. Even so, Africa’s cities are urbanising at a profound rate, reaching 40% in 2012, up from 19% in 1960. Due to the implications of urban population growth on the economy and other social factors, it is imperative that African state leaders and policy-makers plan for these transitions adequately. The changes that will occur, and in fact have begun taking place, in terms of urbanisation, need to be factored into long term planning, as not doing so could lead to possible political and economic instability.

According to City Mayors, an organisation dedicated to the research of cities and metropolitan areas, Africa has 19 cities with a population over 1 million, and this is a conservative estimate given that most reliable city population data is 15 years old. The fastest growing city, according to Foreign Policy magazine, is Bamako, Mali, currently at 1.3 million people and growing at 4.45% a year, a result of both economic growth and desertification. Bamako, however, is dwarfed by the estimated 10 million people that live in Lagos, Nigeria, Africa’s second fastest growing city at 4.44% a year. Fifteen million people are expected to live in Lagos by 2030, overtaking Cairo, Egypt, as the continent’s largest city. The UN recently performed a study on mega-cities and concluded that an additional urban phenomenon is the growth of mega-regions, like the 600km urban stretch between Ghana, Togo, Benin and Nigeria that now links the whole region’s economy. According to Business Day, Minister of Lands, Housing and Development in Nigeria, Amal Pepple, stated that with an urbanisation rate of five percent per annum, the West-African region is recording the fastest urban growth in history, estimating that by 2020, 52 percent of the region’s populations would reside in cities. This is sure to have a profound impact for West Africa.

The growth of cities and urbanisation are typically associated with positive attributes that lead to economic growth and development. As economies grow and diversify, manufacturing, information technology, and services sectors tend to cluster in more urbanised settings. Likewise, an urban population supports growth in these sectors because of the abundant labour supply. Historically, urbanisation in developed countries indicates a strong correlation between economic development and improved quality of life. However, while urbanisation is often associated with growth and dynamism- as mentioned earlier- it also comes with challenges. In developing economies, unplanned cities and urbanisation have led to the development of slums in cities and towns. Large concentrations of people mean that there is a higher demand for public expenditure on physical infrastructure, safe water and sanitation, and social services. It also tends to create additional stress on the natural environment. As people move to cities, the demand for basic services and housing increases. Urban population growth can also become problematic with respect to poverty and unemployment rates, when an inadequate number of jobs are available. Without adequate urban planning mechanisms and allocation of resources, rising urbanisation can become a serious liability for numerous African states, leading to political, economic and social challenges.

A UN-HABITAT country programme document on Nigeria highlights that while Nigeria continues to experience rapid urban population growth, this is not being matched by adequate human settlement planning and management. The report further states that Nigeria’s urban population rose from a mere 3.2 million (10.6%) in 1953 to a staggering 70 million in 2007 (50%). The country’s rapid urbanization has led to the challenge of rising poverty, with the situation being further exacerbated by the lack of provision in critical infrastructure, such as water and sanitation, electricity, roads and an adequate transport system. Seventy percent of urban dwellers in Nigeria live in slums. The report also asserts that the housing shortage in Nigeria is estimated to affect between 14 and 16 million people. About 46% of the population has no access to safe drinking water, while an estimated 47% lack adequate sanitation services.

Amal Pepple underlined that the urbanisation rate in Nigeria as a whole is put at 5.5 percent per annum, with projections showing that by 2015, more than 50 percent of the people will be living in cities. The country’s inability to correctly plan and manage rapid urbanisation has resulted in uncontrollable growth in all major cities. The lack of capacity to plan these cities to accommodate an informal economy- which stands at 60-70%- has had a negative impact on not only the landscapes in cities, but has also limited their contribution to the national economy.

The challenges of urbanisation are particularly saleable now. The New Year’s Day approval of a removal of fuel subsidies has sparked strikes by some of the country’s largest labour unions- shutting down much of the economic activity in the city. The Nigerian government stated that the removal of the subsidy would free up money to be used for other development projects such as infrastructure improvement. However, the removal quickly increased the price of fuel and other goods, and, combined with distrust in public management of oil revenues, it provided a perfect recipe for protest and strike. According to a CNN report, although President Goodluck Jonathan has reinstated the subsidy and labour unions have called off their strikes, Lagos remains on-edge. Countries like Nigeria, that wholly experience the challenges of urbanisation could look towards cities such as Accra in Ghana, which was recently ranked one of the highest cities in the world for sustainable development by Siemens and the Economist Intelligence Unit. Private-public partnerships have been working together to adequately direct economic growth, provide citizens with adequate physical and health-related infrastructure, set the foundations for a green city economy, and maintain an attractive business climate.

Without a clear strategy to address service delivery, employment and governance issues, African countries in transition from rural to urban population growth could experience instability in the future. Confronting these challenges is much easier said than done, but there are model cities showing that this can be possible.

ISS Today article written by Johan Burger, Senior Researcher, Crime and Justice Division, Pretoria Office

The deployment of the South African National Defence Force (SANDF) in the recent festive season policing operations has led to concerns being raised from various quarters. The first problems emerged withThe Star newspaper reports of a policing operation in Johannesburg where the military and police were carrying out a joint operation targeting informal shops to seize counterfeit products. Photographs were taken of a soldier beating a shop owner with the butt of his R4 rifle. Police members, including members of the police’s Tactical Response Team (TRT), were also alleged to have used unnecessary and excessive violence against shop owners and bystanders. A week later, the Cape Times reported on two SANDF armoured vehicles and a number of armed soldiers that were seen monitoring a protest of less than fifty people at the Khayelitsha District Hospital in the Cape Town Metropolitan area. SABC news more recently broadcast soldiers taking part in an operation to burn a plantation of marijuana that had been discovered in Soweto.

These incidents prompted a debate on military deployment in support of the police and to what extent constitutional and other legislative prerequisites were met during these deployments. For example, on 16 January, a professor of constitutional law at the University of Cape Town, Pierre de Vos argued that it is of ‘utmost importance’, in a constitutional democracy, to keep the roles of the police and the military separate. He acknowledges that the Constitution provides for the ‘employment’ of the military ‘in cooperation with the police service’, but questions whether in this instance the correct procedures for such ‘employment’ were followed.

Subsequently, a General Ndivhuwo Mabaya stated correct procedures were followed because, since 2001 the police and the SANDF have a general cooperation agreement which covers all their joint operations. Professor De Vos wrote an article arguing that such an agreement was clearly unconstitutional because the ‘employment’ of the military in cooperation with the South African Police Service is regulated by section 201of the Constitution of the Republic of South Africa which states that:

‘(2) Only the President … may authorise the employment of the defence force

(a) in cooperation with the police service; …’

(3) When the defence force is employed for any purpose mentioned in

subsection (2), the President must inform Parliament, promptly and in

appropriate detail, of –

(a) the reasons for the employment …;

(b) any place where the force is being employed;

(c) the number of people involved; and

(d) the period for which the force is expected to be employed.

Furthermore, the White Paper on Defence states that the SANDF should only be deployed in support of the SAPS, “…in the most exceptional circumstances, such as a complete breakdown of public order beyond the capacity of the SAPS, or a state of national defence”. For example, during the wave of xenophobic violence that took place in 2008, the military were only deployed after it became clear that the police were not able to contain the situation which had resulted in the deaths of 69 people.

The White Paper on Defence clearly presents the many reasons as to why it is not desirable to have military involvement in policing duties either on permanent or semi-permanent basis. As the military are not trained or equipped for policing duties it leads to acts of repression and undermines the legitimacy of the military in the eyes of the public.

In contradiction with the General’s statement that all deployment of the military in support of the police was part of a decade old agreement, the recent festive season operations appears to have been authorised by a ‘President’s Minute No 374/2011’ signed on 12 December 2011 by the President and the Minister of Defence. This one page document states that ‘members of the Regular Force and the Reserve Force of the South African National Defence Force’ are employed ‘with effect from 1 November 2011 to 31 January 2012 … for service in cooperation with the South African Police Service in the prevention and combating of crime and the maintenance and preservation of law and order within the Republic of South Africa during the 2011/2012 Festive Season’ (own emphasis).

Nevertheless, it appears as if this general deployment minute fails to adhere to both constitutional requirements and official policy. For example, the Constitution clearly states that the President must inform Parliament ‘promptly and in appropriate detail’ when the Defence Force is ‘employed.’ That the President’s Minute was signed on 12 December and the employment began on 1 November, six weeks earlier, brings this into question. Moreover, there is no indication of the ‘exceptional circumstances’ that existed to require the military to be deployed with the police over the festive season.

The Constitution does not elaborate on the nature of the duties of the defence force when ‘employed in cooperation with the police service’. However, according to section 20(1) of the Defence Act Defence Act (No. 42 of 2002), a member of the Defence Force who is ‘utilised for the execution of services under such employment has the same powers and duties as those conferred or imposed upon a member of the South African Police Service’ (own emphasis). The only exclusion here is the investigation of crime (section 20(2)). Section 20(11) adds a provision that Defence Force members accordingly employed must receive ‘appropriate training prior to such employment and must be properly equipped. From the media reports and pictures of the soldiers’ equipment (R5 automatic rifles) and instances of abusive behaviour during the recent festive season operations, these statutory requirements may have been breached.

It is worthwhile noting that in South Africa, joint operations between the military and the police are not new. Since the mid 1990s, joint operations have been coordinated by the national Joint Operational and Intelligence Structure (JOINTS) which reports to the Justice, Crime Prevention and Security (JCPS) Cluster consisting of Ministers and Directors-General of the relevant departments. This kind of cooperation has enabled the military, the intelligence community and the police to plan and execute successful major event security operations such as the 2012 FIFA World Cup tournament and also on occasion, major crime-combating operations. However, it has never been a requirement for the military to have police powers in order for them to work with the police. Rather, the military have played more of a support service role by providing the police with logistical support when needed and a protective cordon where specific policing operations have been conducted in volatile places where the police may come under attack. In this sense the ‘policing’ powers allocated to the Defence Force when they act in cooperation with the police is unnecessary. Such powers without the required training and equipment are in any case tantamount to inviting unlawful action and abuse against which the White Paper warns.

It is against this background that the deployment of the military in support of the police, in very specific situations or ‘exceptional circumstances’ and following the proper accountability procedures can be justified. However, deploying the military to perform routine and other normal police duties, such as the regular annual festive season operations cannot be justified. The decision to involve the military in such operations needs to be reconsidered, and particular attention needs to be paid to whether the Constitutional provision are being effectively adhered to or not. Moreover, section 20 of the Defence Act should be amended to provide the Defence Force only with those powers required to support the police.

ISS Today article written by Gwinyayi A Dzinesa, Senior Researcher, Conflict Prevention and Risk Analysis Division, Pretoria Office

On Monday, 16 January 2012, the much-anticipated inquest into the circumstances surrounding the death of General Solomon Mujuru, in an inferno at his Beatrice farm, 60 km south of Harare, in August last year opened at the Harare Magistrates Courts. Over 40 witnesses will be summoned to give their evidence at the inquest. This follows the much-maligned Zimbabwe Republic Police’s (ZRP) significant decision to refer the case to the High Court after completing its investigation amidst unprecedented public interest in the former military chief’s death.

Indeed, the circumstances of his death offered plentiful fodder for conspiracy theorists to chew on. The idea that such an iconic liberation war hero who was perceived as Zimbabwe’s “kingmaker” and leader of a Zimbabwe African National Union Patriotic Front (ZANU-PF) faction in the race to succeed President Robert Mugabe as president of both the party and possibly the country, could be killed so suddenly was a shock. This was especially true of Retired General Mujuru; gallant fighters die of combat intrigue or under other glorious circumstances; they do not get killed by burning beyond recognition alone in an accidental house farm fire. Even President Mugabe, during Mujuru’s burial ceremony at the national heroes shrine on 20 August 2011, said: “It is hard to imagine that such a glorious soldier died in such an inglorious way, so uneventfully. But this is how God willed it and we cannot do anything about it, except to grieve, to ask so many questions and finally accept his demise even though it will always hurt”. General Mujuru was second-in-command of the Zimbabwe African National Liberation Army (ZANLA), ZANU-PF’s guerrilla wing, during the 1970s war of independence and served as the country’s first black head of the army in 1980.

On the opening day of the inquest the State presented forensic evidence that no trace of explosives or inflammable liquids had been found at the scene of General Mujuru’s death. While this significantly allayed allegations that fuel, chemicals or explosive devices may have been used to ignite the fire that charred the General’s body, it did not completely rule out foul play. Testimonies at the inquest have so far revealed security lapses. Thakor Kewada, the lawyer representing General Mujuru’s family, has charged that the three ZRP details guarding the Mujuru residence were negligent as they did not patrol the premises at regular intervals resulting in their failure to discover the blaze before it intensified. One of them even admitted sleeping on the job. Having belatedly discovered the fire, the ZRP officers failed to speedily call the fire department since their police radio was broken and they did not have credit in their mobile phones – an occurrence symptomatic of the country’s economic crisis.

Particularly in the light of well-documented concerns about the professionalism of the ZRP as well as over the independence of the judiciary, the perception that the inquest is free from taint and succeeds is critical to public confidence in Zimbabwe’s criminal justice system. However, history may not be on the side of such a positive outcome. Previous such inquests into the untimely death of Youth Development, Gender and Employment Creation minister Border Gezi and that of businessman Peter Pamire were inconclusive.

Already, the witnesses’ testimonies in this case have been riddled with anomalies, contradictions and inconsistencies and may thus be discredited by the coroner. These irregularities have centred around whether the General was drunk or lucid, alone or with a passenger in his car when arriving at home earlier that evening, or whether gunshots were fired in the house or not. There is a danger that if such a trend continues throughout the inquest the verdict could be inconclusive just like with the other precedents. Against such a possible backdrop it may be difficult to put to bed the variety of conspiracy theories spawned by the General’s death and the circumstances surrounding it. It will also leave the conspiracy of ZANU-PF having been responsible for the death of one of its own hanging.

The late General was seen as a “power broker” in ZANU-PF where intra-party politics have been for some time reported as being constituted around two main factions with an eye for both the party’s and country’s presidency. His power and influence lay in his ability to marshal his strong politico-military-business connections. General Mujuru, together with his wife, Vice President Joice Mujuru, were viewed as leaders of a moderate faction of ZANU-PF that favoured amenable relations with the MDC. The retired army general stood as an instrumental force in promoting the political fortunes of his wife. This included her ascendancy to the Vice-Presidency of ZANU-PF and government in 2004 against the powerful Defence Minister, Emmerson Mnangagwa, following the death of former Deputy President Simon Muzenda in 2003.

The Vice-President has her own liberation struggle credentials having been the only female member of ZANU-PF’s Dare Rechimurenga (War Council) and commander of female combatants during the war. Vice-President Mujuru has also been a ZANU-PF cabinet member since independence. She is now expected to fight the succession battles in ZANU-PF against a rival faction led by Mnangagwa without the support of her husband. In fact, one of the conspiracy theories flying around claims that the fire accident was actually an assassination by hardliners in ZANU-PF who viewed General Mujuru as a moderate and could have played a central role in negotiating with the country’s service chiefs to accept a Movement for Democratic Change (MDC) victory in future polls.

An interesting dynamic is that the death of General Mujuru has reportedly created an opening for a former military colleague to throw his hat into the ZANU-PF succession ring. General Constantine Chiwenga, the Commander of the Zimbabwe Defence Forces (ZDF), is now believed to head a third military-based function. The security sector is seen as the real “kingmaker”. The sector has increasingly been involved in Zimbabwe’s politics since the country’s closely contested parliamentary elections of June 2000. In the run-up to the June 2002 presidential elections all five service chiefs affirmed their allegiance to President Mugabe publicly declaring that they would not salute or recognise any leader without “liberation war credentials” in an apparent swipe at the MDC leader, Morgan Tsvangirai.

A Joint Operation Command (JOC) - comprising the service chiefs as well as the defence and state security ministers – has continued to exist and reportedly even directs state affairs as effectively placing Zimbabwe under subtle military rule. It remains to be seen where the allegiance of the real “kingmaker” will lie in ZANU-PF’s succession race.

Jemima Njeri Kariri, Senior researcher, Transnational Threats and International Crime Division, ISS Pretoria Office

Since the early 1990s, Africa has been the hub of international criminal justice. In 1994, following the crimes committed in Rwanda, an ad hoc international tribunal for Rwanda was set up to prosecute alleged perpetrators. Similarly, the Special Court for Sierra Leone was established to prosecute those who bore the greatest responsibility for crimes committed during that country’s civil war. More recently, all the cases before the International Criminal Court (ICC) are from African situations.

These initiatives are primarily in response to conflict-related atrocities and are an effort to fight impunity. The operation of these institutions on the continent has not been without controversy and challenges. The ICC in particular has been labelled as targeting Africa for various reasons and the African Union (AU) has been at the forefront in responding to the work of the ICC in Africa.

From 23 – 30 January 2012, the AU will hold its 18th ordinary summit in Addis Ababa. The theme of the summit focuses on boosting intra-African trade. Previous AU summits have discussed international criminal justice in Africa, an issue that is not overtly provided for during this summit. However, the summit presents an important opportunity for the AU to count the value that Africa has contributed and can continue to contribute to international criminal justice in Africa in particular and to international criminal justice generally.

In December 2011, the ICC Assembly of States Parties elected a new prosecutor, Fatou Bensouda from the Gambia. The fact that the new prosecutor is African is a milestone for the ICC and for the AU. Bensouda will take up office from June 2012. Her appointment presents the AU with impetus for cooperating with the ICC towards ending impunity and bringing perpetrators of international crimes to justice.

In previous AU Summits, the AU expressed dissatisfaction with the conduct of the outgoing Prosecutor of the ICC, Luis Moreno Ocampo and lent their support to the election of Bensouda. It is argued that Bensouda is an African who understands African challenges, prospects and opportunities and therefore is able and best suited to bring the African agenda to the ICC regime. It must however be noted that the Prosecutor will operate in an independent, transparent and accountable manner and her appointment will in no way influence cases from Africa or elsewhere.

In light of this, the AU has an important opportunity to shape international criminal justice in the interests of Africa. This can be achieved in various ways including through cooperating and supporting the new Prosecutor and with the court and encouraging state parties to do the same. To begin with, the AU should sign the outstanding Memorandum of Understanding (MoU) with the ICC and open the proposed liaison office for the ICC. This process will be an important beginning for dialogue and cooperation between the two institutions. The office need not necessarily be hosted in Addis Ababa, Ethiopia – the seat of the AU – but in any AU state that is willing to host it.

In addition, the AU should build up on the gains made thus far in Africa with regards to the ICC. In 2011, two additional African countries, Tunisia and Cape Verde, ratified the Rome Statute. Furthermore, it is believed that Egypt and the Ivory Coast also intend to ratify the Rome Statute. Another development is the declaration made by the Ivory Coast accepting the jurisdiction of the ICC and thereby paving the way for investigations into the post-election violence in that country. Last, but certainly not least, African countries continue to engage in domestic legislation processes. This presents an important keynote in encouraging states to support international criminal justice responses in Africa through various domestic related initiatives.

ICC cases from Africa still remain high, including investigations in Guinea and Nigeria. This should be viewed as positive in the sense that the engagement of the court in the continent represents the quest for justice for persons with the highest responsibility for international crimes, and to ending impunity in Africa. The AU has the moral authority to encourage it members to support the court’s processes particularly in light of its Constitutive Act’s commitment to ending of impunity. The appointment of an additional African Judge, Justice Chile Eboe-Osuji from Nigeria adds yet another African voice to international criminal justice.

As we face 2012, the AU should spearhead commitment to international criminal justice by viewing international criminal justice as a tool for peace building. In addition it should encourage state parties to the ICC to cooperate with the ICC. Of importance, the AU should foster the advancement of capacities of national level jurisdictions to handle trials for international crimes. Libya and Uganda have demonstrated important developments towards advancing domestic prosecutions for international crimes. Encouraging states to conduct domestic prosecutions is in line with the principle of complementarity, which recognises the ICC as a court of last resort and should only get involved in the event where states are either unable or unwilling to prosecute. In light of this, the AU should encourage states to advance capacity building for these institutions by drawing on the expertise of various service providers including civil society.

In addition, it is necessary for the AU to open up dialogue with the ICC in order to iron out issues that may have impacted on a smooth relationship with the court. It may also be necessary to develop a plan of action to end impunity or provide guidelines for addressing impunity with regards to international crimes in Africa.

The South African leadership of the United Nations Security Council (UNSC) this month is an important occasion to bring forth any issues relating to international criminal justice in Africa that may still be outstanding or that require the attention of the UNSC. South Africa is an important player in international criminal justice and as the current chair of the UNSC has the golden opportunity to add an African voice to international politics and law. However, it is important to note that it is not prudent to request the UNSC to defer investigations or prosecutions of persons wanted by the ICC for crimes committed against Africans where such is not warranted. The AU should always put the concerns of the victims before any considerations.

Africa has a large membership on the ICC with 33 members to the Rome Statute out of 120 globally. The AU should build on this momentum and encourage those states that are not party to the ICC to join and to continue being ardent proponents of the ICC as was the case during the 1998 negotiations in Rome that saw the establishment of the ICC. This African-wide membership would see Africa as the only continent with full membership to the Rome treaty, demonstrating its commitment to international justice. Additionally, the AU should encourage commitment and operationalisation of international treaties that its members sign up to.

In light of all the above, the AU is well placed to promote international criminal justice in Africa, a programme that can be spearheaded at the 18th Summit of the AU.
(Image supplied by the Embassy of Equatorial Guinea on Flickr.com)