Late last spring a group of East African magistrates met in Kigali to discuss the question of universal jurisdiction in Africa. The May meeting of the East African Magistrates and Judges Association (EAMJA) was a sounding board for critical perspectives, with universal jurisdiction linked closely to Western imperialism.
The International Criminal Court’s first sentencing in July seemed to play into the view. After ten years in existence, the court had tried one case and sentenced a single person: a Congolese rebel leader. To be sure, Thomas Lubanga Dyilo committed indefensible acts. But, still, for critics, the ICC’s overwhelming focus on African states—given a world of abuse, far beyond the continent’s borders—has always seemed morally lopsided. So too has universal jurisdiction, permitting former colonial powers to sit in distant judgment.
The summer did bring more positive signs. First there was the appointment of Gambian Fatou Bensouda as the ICC’s second chief prosecutor, an African woman replacing the “charismatic but controversial” Luis Moreno-Ocampo. Next, there was the highly anticipated ICJ decision on July 20, calling on Senegal to try or prosecute Hissène Habré. Four days later, in consultation with the African Union, Senegal’s government (itself headed by a new president) announced it would create a special tribunal for the former Chadian dictator. The “potentially groundbreaking” court now awaits donor funding.
Consistent with these developments, members of the judiciary who convened in Rwanda’s capital last May were looking to standardize the rule of law and promote greater judicial integration. As the EAMJA president said,
East Africa is not limited to being the international law user; it has to be a producer, developer and shaper of that law.
Similar thoughts were echoed 45 years earlier in Dakar, when the first meeting ever of African judges took place. The idea, then and now, has been to resist neo-imperialist incursions by strengthening domestic and regional systems of law. Of course, in some circles, where people study how ideas and institutions diffuse, they might call this coercive socialization.
Regardless, discontent with the international practice and politics of universal jurisdiction is leading to deliberation and domestic legal change. These are important advances in an otherwise imperfect and evolving system of global justice. A more complete touchstone of success will be whether people’s access to fair accountability mechanisms actually improves and becomes regularized.