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IN PRAISE OF ANARCHY: Christ’s Vision of a Stateless Society

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When we think of reimagining this liberation today, we must grapple with what modern institutions, such as schools, banks and hospitals, or even a criminal justice system, might look like in a stateless society. It is important to remember that it is individual autonomy that is at the core of anarchy. By J.L LEGARD

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IN PRAISE OF ANARCHY: Christ’s Vision of a Stateless Society
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I was in the second year of my Master of Divinity programme at Princeton Theological Seminary when agents of the U.S. state executed Eric Garner and Michael Brown. The murders of these two young black men and the subsequent determination by the state that the killers were in the right had ignited a fiery political activism in me and in my fellow students. I remember that it was so fiery that it was a source of warmth while we protested in the bitter cold.

Every consecutive killing thereafter was like throwing a log into a bonfire. I also remember the struggle of trying to conceive of a theology where God and God’s Christ could be found in the tragic wake of the age-old practice of state-inflicted violence against black bodies. But most of all, I remember something very startling about the rhetoric employed by activists, myself included: our frameworks for achieving justice presupposed that the state’s existence and its claims to authority over our lives were legitimate. Or, at the very least, we assumed the state was a necessary evil through which we could do pragmatic work.

We imagined that more representation in multiple levels of government would be key to our salvation. “If we have the right people in government, the oppressed would be treated right,” we would exclaim.

But let us ask ourselves: What if the global political discourse is so colonised that our imagination of liberating oppressed peoples has been limited to participating in the very systems that oppress people in the first place? In other words, what if we have been conditioned to think that every vision of liberation must include the iteration of a state? Moreover, what if Jesus Christ challenges us to not work with the state, but to subvert it?

The state is illegitimate and unnecessary

I contend that the state – as an entity that claims to possess a monopoly over the use of legitimate coercion (i.e. violence) – is illegitimate and is unnecessary for achieving liberation for the oppressed. Anarchy can replicate every function of the state in a more effective fashion without its coercive elements through a voluntary and cooperative effort. It is within this space that the apocalyptic Christ dares us to imagine liberation not as another iteration of coercive power, but one of anarchy, which rejects the domination and subordination of human beings.

I contend that the state – as an entity that claims to possess a monopoly over the use of legitimate coercion (i.e. violence) – is illegitimate and is unnecessary for achieving liberation for the oppressed.

When I talk about the “state,” I’m referring to the general idea of state-ness” in all its iterations, whether in America, Kenya or Malaysia – an entity that claims to possess a monopoly over the use of legitimate coercion. So, when we say that the state is illegitimate, we mean both its possession of a monopoly over coercion, and its actual use of coercion, are illegitimate.

What are some of the justifications for the state’s claim to power, and how can we deconstruct them?

One argument that defends the legitimacy of state power is that individuals in society have voluntarily consented to it. If individuals do not consent to the state, then it is illegitimate. Obviously, very few have consented to the state under which they live. Most people find themselves citizens of whatever country they happen to be born in, so have they actually consented to live under that jurisdiction? To make things worse, many of today’s nation-states are the creation of colonial powers, which simply enclosed various ethnic groups into a single territory while splitting others into two or more states.

In order to solve this crucial problem, John Locke, a 17th century political philosopher, invented the concept of “tacit consent”. Locke’s argument infers consent from silence; that merely walking on a highway in a country, for example, gives tacit consent to that country’s government. This clearly betrays the actual meaning of consent as a deliberate, voluntary act – for something to be consensual there must be the freedom to refuse. With such a misuse of language and logic here, we cannot help but conclude that the state is illegitimate with respect to the individuals who have not voluntarily consented to it.

Another justification for the state may be the nature of humankind and the conditions under which people live. We could argue that the state is necessary to remedy human beings’ violent, greedy and self-destructive ways; to ensure the welfare of the poor, the sick, the uneducated, and so on. Let’s say the nature of humankind is indeed deplorable. The false reasoning occurs, however, when observations about society’s condition are divorced from any culpability of the state. This assumes that society’s condition is in no way a by-product of the state’s current influence.

Nevertheless, let’s say that humankind is inherently violent, greedy and untrustworthy. The conclusion that the state is the logical remedy for this condition is unfounded because the state’s government is comprised of these same inherently violent, greedy, untrustworthy humans. Therefore, giving the state a monopoly over coercion is to centralise and magnify humankind’s worse traits (violence, greed, deception, etc.) and to concentrate power in the hands of a few who unleash deadly force, “legitimately”, with a claim to moral superiority. As such, oppression is legitimised as a natural consequence of statehood.

Nevertheless, let’s say that humankind is inherently violent, greedy and untrustworthy. The conclusion that the state is the logical remedy for this condition is unfounded because the state’s government is comprised of these same inherently violent, greedy, untrustworthy humans.

Another argument for the necessity of the state is to establish justice. Locke believed that an impartial system of justice is needed to avoid a vengeful society where everyone has a right to punish. Whether Locke was working from a high or low view of humankind’s nature is irrelevant. (The “high view” sees humans as naturally rational beings who are prone to peace and order. The “low view” sees humans as a naturally ignorant bunch who are prone to war and chaos.) If it was a high view, a coercive system would still be unnecessary to deal with matters of justice because such people would not need to be coerced into doing the right thing.

If it was a low view, a coercive system would still be unnecessary for two reasons. First, as mentioned before, the system would be totally comprised of partial members, and an impartial system made up of partial creatures can never be impartial. Ascribing traits to the state that are not found in its human agents appears ludicrous. If humankind is partial and self-interested, the system naturally devolves into the same, no matter the intentions.

Second, if human beings are really an ignorant and violent bunch, wouldn’t the injustices perpetuated by the state’s “justice system” (since the system is comprised of partial creatures) cause ordinary people to pursue their own private justice in a vengeance system? And if they pursue their own justice because of injustices perpetuated by the state, what is the point of granting the state a monopoly over legitimate coercion in the first place? It appears, then, that a state would be unnecessary.

A final argument for the necessity of the state is social coordination. The argument is that in a land where resources belonging to or affecting the whole of a community are limited, there is a need for coercion to ensure that individuals do not use their liberty to deplete these resources. This argument presupposes that a mutual agreement for a quota is ineffective because one’s own integrity has to be weighed against the possibility that others are forsaking the agreement – a situation that does not yield any foreseeable benefit to the individual. Therefore, depletion (a tragedy) occurs. It means that a coercive force is needed to counteract the self-interests of members of the community and to stave off the assured destruction from everyone’s greed and duplicity.

The problem with this argument is that it assumes that such a coercive force acts without self-interest. As long as this coercive force is comprised of individuals who live in the community and who each share a particular interest for themselves and for their families to have access to the resources (and not comprised of foreigners who have no vested interest in the resources), it follows then that this coercive force would be a small conglomerate of interests that ultimately have the authority to dismiss the interests of the general public, or who can be swayed by special interests that go against the interests of the general public. In other words, the state becomes an apparatus by which a particular interest for a particular individual or group is championed with complete legitimacy. (We are familiar with the results of this from government corruption scandals all around the world.) And if the coercive force is not greedy and selfish, but is benevolent and responsible, then why can’t this attribute be extended to the individuals that it purports to represent? In other words, if the enforcers can be trusted, why can’t the members of the community who are cooperating be trusted?

My view is that the very institution of the state betrays its key institutional goals of liberty, justice, and peace. This vehicle is unnecessary as well as inefficient because while seeking to protect liberty it forces liberty to be relinquished; while seeking peace it goes to war against individuals with its monopoly of coercion; while seeking justice it is only those who are most valuable to the state’s interests (i.e. the rich and powerful) who find it. Does much have to be said about the “tragedy of the state” in the twentieth century during which democide occurred in insane proportions?

The key to all these tragedies is revealed in the fact that the very notion of a coercive hierarchical arrangement is to propose a stratification of human equality across a matrix of domination. The tyrannical propensities of the state are embedded, then, within hierarchical subordination. It is the underlying reason why the enforcers of a quota, located at the top of the hierarchy, can be trusted (with resources, weapons, power, etc.) while the community, at the bottom, is suspect.

Ultimately, we must look beyond the state to arrive at a virtuous condition—to arrive at liberation.

The key to all these tragedies is revealed in the fact that the very notion of a coercive hierarchical arrangement is to propose a stratification of human equality across a matrix of domination. The tyrannical propensities of the state are embedded, then, within hierarchical subordination.

Anarchy

The word “anarchy” typically conjures up images of fire, savagery, and destruction. In common parlance it is synonymous with chaos, and is antithetical to civilisation. However, this characterisation is probably a legacy of colonial thought, which sought to justify the imposition of rule over indigenous populations who lived in communal settings. Such communities were thought to be savages by European scholars, among other reasons, because they did not form a state—indeed, they were “stateless societies”.

These societies (and there were many in pre-colonial Africa) represent anarchistic precedents in the African continent. How ironic that the imposition of coercive government (read: colonialism) carried with it the greatest acts of savagery and destruction against such societies.

The word anarchy originates from the Greek an – (“without”) – archy (“rulers”). It does not mean to be without laws or without government. It simply means a society that lacks the coercive elements of a state. Anarchists do not propose an orderless society, but one where order arises from voluntary cooperation and self-ruling communities. I personally like Bertrand Russell’s description of anarchy:

“[It is] the theory which is opposed to every kind of forcible government. It is opposed to the state as the embodiment of the force employed in the government of the community. Such government as anarchism can tolerate must be free government, not merely in the sense that it is that of a majority, but in the sense that it is assented to by all.”

Within Russell’s description is a critique of the cherished democratic system where the will of the majority is forced upon the minority. Analytically, we know that this arrangement produces oppression; when we look around the globe, minorities in various democratic governments are suffering at the hands of the majority because they lack participation in the decision-making process, and sometimes even lack recognition by their respective institutions of government. Even those who are numerically in the majority are often held hostage by a cabal of private interests that have a monopoly over state power.

I do not pretend that anarchy does not have its valid critiques. And, for the most part, historically, anarchy as a revolutionary concept has been an abysmal failure. Like most philosophies, anarchism lacks a transcendent element by which the population may be energised into action. I believe that the person of Jesus Christ—that apocalyptic prophet—offers a framework from which to imagine such action.

The apocalyptic Christ 

When we refer to Jesus as the “apocalyptic Christ” we are, of course, drawing from the contributions of historical Jesus scholarship, which posits that Jesus was an apocalyptic prophet whose message primarily concerned the imminent end of the world (i.e. “age” Grk: aion). In historical Jesus scholarship, this message is over and above his message of being the Messiah, which some scholars (for example, Marcus Borg and Robert Funk) assert that he never preached. I call him the apocalyptic Christ instead of the apocalyptic prophet because I believe that his apocalyptic message naturally indicates his Messianic identity.

When Jesus preached, “The time has come…the kingdom of God has come near. Repent and believe the good news!” (Mark 1:15, NIV), he invited his Jewish audience to imagine salvation through destruction, but this was with nuance.

A prominent number of Jews conceived the coming of the kingdom of God as a time where the Messiah would assume his kingship and destroy the occupational forces of enemy Rome. Jesus was a poor Judean labourer turned itinerant preacher under the rule of Rome. During this time, Rome was in Pax Romana (“Roman Peace”), where the empire enjoyed relative tranquility in the provinces over which it ruled. So, when Jesus says, “the kingdom of God has come near,” it conjured up thoughts of the Messiah about to come and physically cast the yoke of the Roman government from their necks and install his own empire with the same coercive elements as the former. However, as some with even a cursory understanding of Christianity might know, Jesus was quite disappointing to this apocalyptic imagination in that literal sense.

The apocalypticism of Christ was more comprehensive; it not only signaled the destruction of Roman power but it allowed his followers to imagine the breaking down of elite Jewish power as centred at the Temple. We understand that the Temple power network was controlled by the priestly aristocracy who enjoyed excesses by capitulating to Roman influence and power. They used their prestige to oppress the Jews of Judea as well as visiting pilgrims from around the Roman Empire. Where the Temple and its worship of God was supposed to bring the nation together in unity, the Temple power elites found a way to exploit lower class Jews by setting up money-changers (i.e. a capitalist system) in the outer courts of the Temple to which Jesus responded by making a whip of cords and driving them out (John 2).

So, Jesus’s message to “repent because the kingdom is near” is violent rhetoric aimed at the destruction of the system in which his Jewish audience was situated both domestically and abroad. It was a challenge to both the Temple priesthood and the kingship of Caesar. Towards the end of his ministry, Jesus’s message went from the kingdom of God “is near” to the kingdom of God “is within you” (Luke 17:21). This nuance invites his audience to imagine breaking up these institutions and taking away their centralised power, and not replacing them with a similar coercive system of capitalism and state power, but with a system that is disseminated and entrusted within his very audience. This means that the territory and breadth of the kingdom in this new world will not be confined to physical land or be dependent upon resources like in a capitalist framework but will be wholly in the confines of the human being. It means that the kingdom of God is the agency and autonomy of every human being.

So, Jesus’s message to “repent because the kingdom is near” is violent rhetoric aimed at the destruction of the system in which his Jewish audience was situated both domestically and abroad. It was a challenge to both the Temple priesthood and the kingship of Caesar.

Most scholars would agree that Jesus was executed by the Roman state for being a political threat to Caesar and the Roman Peace. The Scriptures say that while he was on the cross, the Temple curtain, which kept ordinary people from the space where God was dwelling (the Holy of Holies), was torn in half by destructive earthquakes (Matthew 27:51). This description invited early Christian communities to imagine that the execution of Jesus via state power incited God to break the hierarchical barrier separating the masses from God, where God would no longer be centralised and hidden away for the enjoyment of a few elites. This decentralising and disseminating force declares that the powers that be were illegitimate; and, vests the human being, every human being, with a sacred majesty characterised by agency and autonomy. Our bodies become the temple and empire of God and thus the jurisdiction of God. Therefore, no state can legitimately encroach or impose its power upon the sacred—the human being. It is a merging of both flesh and spirit, which elevates the once downtrodden and oppressed into a position of power, not to coerce but to extend the voluntary divine community.

The reimagination 

“All the believers were together and had everything in common. They sold property and possessions to give to anyone who had need. Every day they continued to meet together in the temple courts. They broke bread in their homes and ate together with glad and sincere hearts.” (Acts 2:44-46, NIV).

All the believers were one in heart and mind. No one claimed that any of their possessions was their own, but they shared everything they had.” (Acts 4:32).

The apocalyptic Christ challenges us today to be steadfast with the message against state power and really, all coercive arrangements in whatever forms they appear. His apocalypticism allows us to imagine liberation not as synonymous with installing coercive state power, or even participating within the state, but rejecting coercion altogether as an affront to the sacredness of individual human beings and the rule of God. We may declare not that the kingdom of God is coming, but that it is here right now, and we are free to realise such liberation through building voluntary and cooperative societies just as the early Christians did.

When we think of reimagining this liberation today, we must grapple with what modern institutions, such as schools, banks and hospitals, or even a criminal justice system, might look like in a stateless society. It is important to remember that individual autonomy is at the core of anarchy. Therefore, when we reimagine these social arrangements, we are not limited to just one vision or iteration, but a vision of many because every community would be free to forge its own voluntary system marked by its own unique variation. Hence, for example, there is no one “anarchist school” per se, but various arrangements in numerous communities where children are free to come and go as they please and are taught in a cooperative, integral fashion such principles as liberty, fraternity, equality, and solidarity.

When we think of reimagining this liberation today, we must grapple with what modern institutions, such as schools, banks and hospitals, or even a criminal justice system, might look like in a stateless society. It is important to remember that individual autonomy is at the core of anarchy.

There are copious amounts of literature on anarchist educational systems, economics (e.g. blockchain technology has the considerable potential of subverting the state), healthcare, and justice systems (such as restorative justice, private justice, and even Rwanda’s gacaca courts to some extent) that may help us reimagine an ordered society without the state. In many ways it has already been happening, except that informal arrangements (such as in the chama/ stoekvel/ informal banking systems that keep many African communities financially afloat) are maligned as inferior to state alternatives. (It is important to reiterate that each community has the right to self-determine the best approach to operating these voluntary institutions.)

Ultimately, the claims of the state to possess legitimate coercion must be denied at every turn. The rhetoric we use should contain the same urgency as Jesus’s, where we cast visions of a world in which the coercive power of governments around the globe are doomed to pass away. The apocalyptic Christ allows us to imagine that individuals and communities can be trusted, because God entrusted God’s power in our very beings over which no state or person can rule without our consent.

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J.L. Legard is a graduate of Princeton Theological Seminary (M.Div.) and is currently pursuing his Juris Doctor degree at Northeastern University, where he focuses on corporate and intellectual property law. He is a part of Law Students for Indigenous Liberation (LSIL), which advocates for the rights of indigenous populations around the globe.

Politics

Big Pharma and the Problem of Vaccine Apartheid

In this report on the TWN-Africa and ROAPE webinar on vaccine imperialism held last month, Cassandra Azumah writes that the unfolding vaccine apartheid which has left Africa with the lowest vaccination rates in the world is another depressing example of the profit and greed of Big Pharma facilitated by imperialist power.

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Big Pharma and the Problem of Vaccine Apartheid
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The webinar on ‘Vaccine Imperialism: Scientific Knowledge, Capacity and Production in Africa’ which took place on 5 August 5, 2021, was organized by the Review of African Political Economy (ROAPE) in partnership with the Third World Network-Africa (TWN-Africa). It explored the connections and interplay of Africa’s weak public health systems, the profit and greed of Big Pharma enabled by the governments of the industrialized Global North, and the Covid-19 pandemic from a political economy perspective. This report summarizes the main discussions held during the conference, including an overview of each of the main points discussed. The webinar was the first in a three-part series of webinars scheduled by the two organizations under the theme Africa, Climate Change and the Pandemic: interrelated crises and radical alternatives.

The format of the event involved keynote presentations from three speakers, a five-minute activist update on the COVID-19 situation from two African countries, and an interactive discussion with participants. Chaired by Farai Chipato, a Trebek Postdoctoral Fellow at the University of Ottawa and ROAPE editor, the session included presentations from Rob Wallace, an evolutionary epidemiologist and public health geography expert at the Agroecology and Rural Economics Research Corps; Tetteh Hormeku, Head of Programmes at Third World Network-Africa (TWN-Africa) and Marlise Richter, a senior researcher at the Health Justice Initiative in South Africa.

The current state of the pandemic – Rob Wallace

Rob Wallace began the session by providing a global perspective on the current state of the COVID-19 pandemic. He presented data showing that though the total number of vaccinations are increasing, the percentage of people fully vaccinated is concentrated in the West. We are currently experiencing a third wave of the pandemic, which is being driven by the delta variant. Though the cases in Africa are relatively lower than in other parts of the world, it is still a marked increase from the first and second waves which were less severe. This is not the trajectory that was predicted for COVID-19 on the continent in the early days of the pandemic. Marius Gilbert et al had speculated that Africa would be vulnerable to the virus due to a lower public health capacity and underlying co-morbidities that might increase the spread and damage of the virus. However, the incidence of the virus has played out in a different way, Africa’s cases are not as high as that of other continents. The possible reasons that have been given for this are: demographics (a younger population), open housing (which allows greater ventilation), and an ongoing circulation of other types of coronaviruses which have induced a natural, partial immunity in the population.

Wallace also commented on herd immunity, stating that it is not a panacea for defeating the virus. He referenced a paper by Lewis Buss et al on COVID-19 herd immunity in the Brazilian Amazon which found that although 76% of the population had been infected with the virus by October 2020, they had not achieved herd immunity (which is usually estimated at 70-75%), and proliferation of the virus was ongoing. He pointed out that the key lesson from this study is that there is no magical threshold for herd immunity; it may be different for different populations or there may be no threshold at all.

Likewise, he contended that defeating COVID-19 has little to do with vaccination as a silver bullet, but much to do with governance and the wellbeing of the population being at the crux of any public health decisions a government would take. A multi-pronged approach should be taken to defeat the virus, one that includes vaccinations, wearing of masks, social distancing, and testing and tracing. He argued however, that in the neoliberal regimes of the industrialised North, dealing with COVID-19 is organized around profit.

This was not the case in the early days of the outbreak. Initially, the World Health Organisation (WHO) and the National Institutes of Health (NIH) in the US were in favour of having open medicine and making sure any pharmaceutical products produced to fight the virus were free to all. To this end, WHO developed the COVID-19 Technology Access Pool (C-TAP). However, the lobbying of Big Pharma and the likes of Bill Gates worked to centre the COVID-19 response around the model of intellectual property rights. This has had a considerable impact on the evolution of the virus, allowing it enough room to evolve such that pharmaceutical companies can make profits by selling booster shots of the vaccine. According to Wallace, this speaks to the “sociopathic nature” of the neoliberal regimes in the Global North who are willing to put the profits of Big Pharma over the lives of people. He opined that we need to act in solidarity to create a system in which disparities between the Global South and Global North are removed.

Health justice and the pandemic in South Africa – Marlise Richter

Marlise Richter’s presentation shed light on the work of the Treatment Action Campaign (TAC) and the lessons that can be learnt from their struggles for access to medicines (in particular ARVs). She pointed out that the TRIPS agreement (Trade-Related Aspects of Intellectual Property Rights – TRIPS – is a legal agreement between member states of the World Trade Organisation) had a big impact on how the HIV/AIDS epidemic was addressed, resulting in a limited number of ARVs reaching the Global South.

The HIV epidemic was particularly acute in South Africa, the number of people living with the virus ballooned from 160,000 in 1992 to over 4.2 million people by 2000. At this time, ARV’s had been developed but were unaffordable in Africa, costing up to US$10,000 a year in 1998.

The TAC used multiple strategies such as skilled legal advocacy, high quality research, social mobilization, demonstrations, and public education to fight the pharmaceutical industry and their abuse of intellectual property rights protections. It joined the case brought by the Pharmaceutical Manufacturers Association (PMA) against the South African government for allowing parallel importation of drugs in order to bring down prices of medicines. Its intervention contributed to pressuring the PMA to withdraw its claims in 2001. In addition, it applied pressure at the 13th International AIDS Conference in Durban in 2000 by staging a march to highlight the danger of President Mbeki’s AIDS denialism and demanded access to ARVs in Africa.

From 1999 onwards, the TAC also campaigned for a national prevention of mother-to-child transmission of HIV. This case was won at the high court and precipitated a national ARV roll-out plan in April 2004. Finally, in 2002, TAC and the AIDS Law Project filed a complaint with the Competition Commission against GlaxoSmithKline (GSK) and Boehringer Ingelheim arguing that they violated the competition law by abusing their dominance in the market and charging excessive prices for ARVs. This forced the companies to reach a settlement in 2003 leading to a drastic cut in ARV prices. By employing these tactics, the TAC and other activists were able to transform both the national and global conversation on drug pricing, eventually leading to South Africa having the largest HIV treatment program globally and pharmaceutical companies reducing the prices of ARVs.

Following the success of the campaigns to provide access to ARVs in Africa, activists in the Global South fought for the Doha Declaration. The Doha Declaration waived some of the provisions in TRIPS in order to prevent public health crises and promote access to medicines for all. However, Richter commented that not many of these flexibilities have been used. She posits that this is due to immense political pressure from the West. The US in particular has singled out governments that seek to use the TRIPS flexibilities and placed them on the US Special 301 Watch List.

Returning to the present, Richter presented data that showed that on 3 August, there have been just under 200 million confirmed cases and over 4.2 million deaths of COVID-19. 28.6% of the world’s population has received at least one dose of the vaccine with 14.8% fully vaccinated. But to give a sense of the disparity in vaccine administration across the world, she indicated that 4.21 billion doses have been administered globally with 38.67 million administered daily, but in low-income countries only 1.1% of people have received at least one dose. Narrowing it down to Africa, only 1.58% of the population has been fully vaccinated. This variance in administered vaccines is also present across the continent. In July 2021, Morocco had 28.9% of its population fully vaccinated, Botswana and South Africa had 5.3% and 5% of their populations fully vaccinated, and the Democratic Republic of the Congo had 0%. These incongruities are also evident when we assess the number of vaccines promised against vaccines delivered, with South Africa receiving only 26% of the vaccines promised. Continuing at the current pace, it would take South Africa two years and three months just to vaccinate 67% of its population.

Richter quoted the WHO Director-General saying, “The world is on the brink of a catastrophic moral failure – and the price of this failure will be paid with lives and livelihoods in the world’s poorest countries.” Following from this, she believes that it makes ethical sense and public health sense for vaccines to be distributed equitably amongst the world’s population. In a bid to fight for vaccine equity, South Africa and India co-sponsored the TRIPS waiver in October 2020. If successful, this waiver will bring about flexibilities in the TRIPS agreement which would have an immense impact on the manufactured supplies of vaccines and other medical goods. For the waiver to be passed, a consensus amongst all member states of the WTO needs to be reached. While the waiver is supported by over 100 countries (predominantly in the Global South), it has been blocked most notably by the EU, Australia, Norway and Japan, countries which have enough vaccines to vaccinate their population many times over. Putting this into perspective, in January 2021 the EU had 3.5 vaccines per person and Canada had 9.6 vaccines per person, as compared to 0.2 vaccines per person in the African Union. By blocking this waiver, the industrialised North is further entrenching the extreme inequalities currently faced by the Global South.

Richter concluded her presentation by speaking on a recent development in South Africa, where Pfizer-BioNtech has recently signed a ‘fill and finish’ contract with the Biovac Institute. She claimed that while this is a first step in developing manufacturing capacity, it is not enough to achieve vaccine independence because it does not include the sharing of Pfizer-BioNtech’s technology or know-how. In addition, the ‘fill and finish’ approach does not address issues of security of supply, nor does it allow local manufacturers the freedom to make their own pricing decisions. She believes that if we start from the premise that health is a human right, as the TAC does, we will regard health equity and especially vaccine equity as essential in the struggle against the pandemic.

The political economy of the continuing fight against intellectual property rights negatively affecting public health goods in Africa – Tetteh Hormeku

Tetteh Hormeku’s presentation was centred around the challenges that African countries have confronted in the process of trying to develop their own pharmaceutical capacity. These challenges go beyond the struggles for the TRIPS waiver and include the impact of some of the choices governments have made. He focused on two interrelated points that frame the predicament of African countries in relation to the current vaccine situation:

1) The vaccine process is dominated by pharmaceutical Multinational Corporations (MNCs) based in the advanced industrial countries and supported by their governments. The controversy around the TRIPS waiver is a clear example of the extent to which advanced countries and their MNCs would like to hold on to their place in the international order.

2) On the non-existent domestic pharmaceutical capacity in African countries, Tetteh explained that he uses the phrase “domestic pharmaceutical capacity” because:

  • It does not include a subsidiary of an MNC signing a production agreement with a local African company.
  • The word ‘domestic’ combines both the local character of production and the fact that it is embedded within the nation, its challenges, people, drives and imperatives.
  • It does not refer to nations alone, but also to regional and continental initiatives.
  • It captures pharmaceutical capacity beyond the production of vaccines.

Tetteh provided the following case-study to show how these two points are interrelated. 24 February marked the first shipment of COVID-19 vaccines to Ghana, and there was an optimism that it would be the beginning of a steady supply of vaccines to the country – six months later, less than 2% of the population has been vaccinated. Around the time Ghana received this first shipment, it was in talks with the Cuban government for support on the transfer of technology to improve its pharmaceutical capacity.

This date in February also marked the anniversary of the overthrow of Kwame Nkrumah in 1966. Six months before the coup Nkrumah’s government had established a state pharmaceutical enterprise. After the coup, the military government tried to hand it over to Abbott Laboratories, an American pharmaceutical company, under such outrageous terms that the resulting backlash from the populace led to the abandonment of this plan.

The creation of a state-owned pharmaceutical enterprise in Ghana and in other African countries in the post-independence era was a reaction to colonial policies which deliberately curtailed the production of knowledge and science across the continent. The aim of developing a pharmaceutical industry domestically was to intervene on three levels:

  • Creating an industry with the technical know-how and the machinery to be able to participate in the production of pharmaceutical products.
  • Creating an industry which is linked to the process of developing and building knowledge and being at the frontiers of knowledge. This involved creating linkages with universities and scholars.
  • Making use of traditional sources of medical knowledge. The state pharmaceutical enterprise was in operation until the 1980s when due to the Structural Adjustment Programs (SAPs) it was privatized and unable to compete in the free market.

Tetteh pointed out that two lessons can be taken from this anecdote:

  • The government strongly intervened to ensure pharmaceutical production was linked to public procurement and public policy. The market for the product was guaranteed (army, public hospitals etc.).
  • The government intervened to ensure that certain medical products could not be imported into the country. These interventions were crucial in creating the legal and scientific conditions within which the state-owned enterprise thrived until the SAP period.

A key success of the state pharmaceutical enterprise was that it was able to bargain with Big Pharma on its own terms. At the time, Big Pharma needed to negotiate with the state pharmaceutical enterprise to produce their products locally since they had no access to the Ghanaian market. Although Ghana’s intellectual property rights regime replicated and mimicked some of the standards in the Global North, it was an indication of the amount of space countries in the Global South had to develop their own legislation with respect to intellectual property for public health. However, this option is no longer available to these countries. According to Tetteh, TRIPS inaugurated the monopoly that Big Pharma has over technical know-how for medical products. It has also enabled bio-piracy which allows Big Pharma to appropriate African traditional knowledge and patent it for themselves. In the 1990s, the Organisation of African Unity (OAU) tried to create an African model law to enable a fight against bio-piracy but was unsuccessful.

The creation of a state-owned pharmaceutical enterprise in Ghana and in other African countries in the post-independence era was a reaction to colonial policies, which deliberately curtailed the production of knowledge and science across the continent

Tetteh noted that the current situation highlights the importance of getting the TRIPS waiver, as it is a starting point for building domestic pharmaceutical capacity. The waiver goes beyond just patents and encompasses a host of other intellectual property rights such as copyrights, and industrial design. It covers all the important bases for making medicines in a modern context. Looking back to the Doha Declaration, very few countries were able to make real changes to their laws in order to make use of the flexibilities. This was due in part to the entrenchment of TRIPS in other agreements such as AGOA (the African Growth and Opportunity Act) and the EPAs (Economic Partnership Agreements). However, importantly, there was no real commitment by African leaders to making these changes.

Tetteh argued that African leaders are not making the strategic choices that would eventually lead them to developing independent pharmaceutical industries. Suggesting that South-South cooperation is an avenue to address the current issues the continent faces, he argued that instead of using all their funds to buy vaccines, African countries could have allocated some funds to support phase three of Cuba’s vaccine trials. By doing this, they would have been able to negotiate for a consistent relationship in terms of knowledge exchange and the transfer of technology.

Updates on COVID-19 in Senegal and Kenya

Cheikh Tidiane Dieye provided an update on the COVID-19 situation in Senegal. The country recorded its first case of the virus in March 2020. Since then, the government has put in place measures such as curfews, travel restrictions and the banning of public gatherings to contain the spread of the disease. The Senegalese government did not enforce a lockdown because the country has a large informal sector which would have been negatively impacted by a lockdown.

Senegal is currently experiencing its third wave – driven by the delta variant. The total number of cases has increased significantly over the last year, moving from 9,805 cases and 195 deaths in July 2020 to 63,560 cases with 1,365 deaths as of July 2021. This increase in cases has taken a toll on the country as it does not have the healthcare infrastructure to deal with the virus caseload. The vaccination campaign was launched in February this year, with about 1.2 million doses received, 1.8% of the population fully vaccinated and 3% receiving their first dose.

He stated that Senegal is currently facing two issues:

  1. Lack of access to the vaccines. This is because the country does not have the means to purchase enough vaccines for its population and is currently relying on donations from COVAX. This has resulted in protracted waiting times for the vaccine. These waiting times can cause complications for vaccine administration, since there are people who have received the first dose but must wait for longer than the recommended time of eight weeks to receive their second dose.
  2. A significant part of the population is reluctant to receive vaccines and sensitization campaigns are proving ineffective.

He remarked on one key development in Senegal – the creation of a vaccine manufacturing plant funded by the World Bank, the US, and a few European countries. The plant is expected to produce 300 million doses a year, first of COVID-19 vaccines and then other types of vaccines against endemic diseases. This project will be implemented by the Institut Pasteur de Dakar which already produces yellow fever vaccines.

ROAPE’s Njuki Githethwa provided an update on the COVID-19 situation in Kenya. He mentioned that the delta variant has caused a surge in cases and deaths. There have been currently over 200,000 cases since the pandemic began with the total number of deaths at 4,000 at the end of July. He pointed out that this third wave is affecting the lower classes which were spared in the initial stages of the pandemic. Kenya has received 1.8 million doses of the vaccine, with about 1.7% of Kenyans vaccinated. He noted that if vaccinations continue at this pace, it will take over two years for Kenyans to be fully vaccinated.

A key success of the state pharmaceutical enterprise was that it was able to bargain with Big Pharma on its own terms. At the time, Big Pharma needed to negotiate with the state pharmaceutical enterprise to produce their products locally since they had no access to the Ghanaian market

According to Njuki, the disbursement of vaccines from the West is being portrayed as a symbol of charity, solidarity, and sympathy. This portrayal is underlain by the West positioning themselves as saints while vilifying other countries like India and China. He also mentioned that there is a class dynamic at play in Kenya regarding the distribution of vaccines. People in affluent areas have ease of access whereas the less privileged wait in long queues to get vaccinated. As a result, most of the population, including frontline workers, are yet to be vaccinated. Schools in the country reopened at the end of July, and only about 60% of teachers have been vaccinated. Njuki touched on the fact that there is an optimism that more vaccines are coming, however the government is not doing enough to sensitise the population. There is still a lot of misinformation and superstition surrounding the vaccines.

Moving beyond the state?

The discussion was further enriched by contributions from the participants. Gyekye Tanoh, for example, noted that in the past the presence of state pharmaceutical enterprises around the continent constituted an active and embodied interest. This influenced the way transnational pharmaceutical companies were able to negotiate, severely limiting their power. However, such a thing is not present today on the continent. In fact, a study from the McKinsey Institute pointed to the fact that the pharmaceutical industry has the highest markups in Africa, meaning that while the continent is not the biggest market, it is the most profitable region in the world. Currently, the interests of Big Pharma dominate, he asked, how do we begin to shift this? Is it time to look beyond the state as a leading agent for change? What can progressives do in this situation?

Senegal is currently experiencing its third wave – driven by the delta variant. The total number of cases has increased significantly over the last year, moving from 9,805 cases and 195 deaths in July 2020 to 63,560 cases with 1,365 deaths as of July 2021

In response to Gyekye’s question, Tetteh argued that he does not believe that it is time to look beyond the government. In the case of the pharmaceutical industry, the market is created by production and government procurement of pharmaceutical products. Real change cannot be realised without the involvement of the government and well thought out policies. But there is still a role for progressives. Activists need to mobilise and organize around broad paradigmatic changes and clear concrete policy choices that can be implemented in the immediate, medium, and long term.

Wallace added that the objectives of activists in the Global North should be to support the efforts of those in the Global South. This is especially important because COVID-19 is not the only virus that can cause real damage. We need to make structural changes that ensure the Global South is not at the mercy of the Global North whose economic model has contributed to the current situation.

Farai Chipato ended the session by thanking the speakers and participants for their contributions to the fruitful and important discussion. Chipato urged participants to join ROAPE and TWN-Africa for their two upcoming webinars: ‘Popular public health in Africa: lessons from history and Cuba’ and ‘Alternative strategies and politics for the Global South: climate-change and industrialisation.’

This article was originally published in the Review of African Political Economy (ROAPE) Journal. 

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Omissions of Inquiry: Kenya and the Limitations of Truth Commissions

Gabrielle Lynch provides a radical analysis of the mechanisms of transitional justice. Looking at the case of Kenya, Lynch argues that truth commissions which hope to achieve truth, justice and reconciliation also require ongoing political struggles, and substantive socio-economic and political change. While reconciliation and justice may be goals which truth commission can recommend, and sometimes contribute to, they cannot be expected to achieve them.

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In today’s world, it is almost expected that a truth commission will be introduced in the wake of conflict or a period of authoritarianism to try and consolidate a transition to democracy and peace. A truth commission generally understood – as per Priscilla Hayner – as a temporary state-sanctioned body that investigates a pattern of past abuse, engages ‘directly and broadly with the affected population, gathering information on their experiences’ and which aims to conclude with a public report.

The underlying idea is that societies need to confront and deal with unjust histories if they are to establish a qualitative break with that past. Proponents of modern truth commissions thus ‘look backwards’, not as interested historians, but as a way to ‘reach forwards.’ As Archbishop Desmond Tutu explained in his foreword to the South African Truth and Reconciliation Commission (TRC) report:

The other reason amnesia simply will not do is that the past refuses to lie down quietly. It has an uncanny habit of returning to haunt one … However painful the experience, the wounds of the past must not be allowed to fester. They must be opened. They must be cleansed. And balm must be poured on them, so they can heal. This is not to be obsessed with the past. It is to take care that the past is properly dealt with for the sake of the future.

Motivated by this desire to render the past ‘passed’ in the substantial sense of being ‘dead’ or ‘over and done with’, modern truth commissions dedicate most of their time to two activities: the holding of public hearings and production of a final report.

This is a relatively recent development. Early truth commissions did not hold public hearings and were largely fact-finding bodies. However, ever since the South African TRC of the 1990s, truth commissions have held hearings as a stage for various actors – victims, perpetrators, political parties, state institutions and so forth – to present their account of past wrongs. The underlying idea is that people will have a chance to speak and be heard, and thus regain their humanity; that a wider (and engaged) audience will bear witness to a new human rights-conscious regime; and the overview provided will feed into, and help legitimise, a final report. The latter in turn intended to record and acknowledge past wrongs and provide recommendations that can help to promote truth, justice and reconciliation.

However, while much hope is often placed, and much time and money expended, on truth commissions and their hearings and final reports, it is evident that these processes generally fall far short of ambitious goals and high expectations. But what explains this gap between aspiration and reality?

This is one of the questions that I address in a new book – Performances of Injustice: The politics of truth, justice and reconciliation in Kenya – which analyses several transitional justice mechanisms introduced following Kenya’s post-election violence of 2007/8 when over 1,000 people were killed and almost 700,000 were displaced.

This includes the establishment of the Truth, Justice and Reconciliation Commission (TJRC). Significantly, the Commission’s mandate recognised that, while the 2007/8 post-election violence was triggered by a disputed election, it was fuelled by more deep-rooted problems.  In turn, the Commission was tasked with investigating a wide array of injustices – from state repression and causes of political violence to perceptions of economic marginalisation and irregular land acquisition – between Kenya’s independence in 1963 and the end of the post-election violence in February 2008.

Established through an Act of Parliament in 2008, and operational from 2009 to 2013, the TJRC sought to meet its mandate, in large part, by collecting statements (with over 40,000 collected in total), holding public and women’s hearings in 35 locations across the country and adversely mentioned person (AMP) hearings in western and Nairobi, and publishing a substantial final report that runs to over 2,000 pages.

Despite such achievements, the Commission was soon mired in controversy with calls for the chairman – who was soon linked to three injustices that the Commission was meant to investigate – to resign, while the public hearings attracted little media attention, and the final report is yet to be discussed in parliament let alone implemented.

The Kenyan experience highlights a range of lessons and insights. This includes the fact – as recently outlined in a piece for The Conversation – that transitional justice mechanisms are not ‘tools’ that can be introduced in different contexts with the same effect. Instead, their success (or failure) rests on their design, approach and personnel – all of which are incredibly difficult to get right – but also on their evaluation and reception, and thus on their broader contexts, which commissions have little or no control over.

However, the lessons that can be drawn go beyond reception and context and extend to the inherent shortcomings of such an approach.

First, while victims appreciate a chance to speak and be heard, the majority clearly submitted statements or memoranda or provided testimony in the hope that they would be heard and that some action would be taken to redress the injustices described. As one woman explained after a women’s hearing in Nakuru, she was glad that she had spoken and how, having told her story, the Commission would ‘come in and help.’

To be fair, the TJRC’s founders were aware of the inadequacies of speaking, which is why they included ‘justice’ in the title and gave the Commission powers to recommend further investigations, prosecutions, lustration (or a ban from holding public office), reparations and institutional and constitutional reforms.

However, on the question of whether recommendations would be implemented, the Commission rather naively relied on the TJRC Act (2008), which stipulated that ‘recommendations shall be implemented.’ However, such legal provisions proved insufficient. Amidst general scepticism about the Commission’s work, parliament amended the TJRC Act in December 2013 to ensure that the report needed to be considered by the National Assembly – something that is yet to happen.

Moreover, to document and acknowledge the truth requires that one hears from both victims and perpetrators. However, the latter often have little motivation, and much to lose, from telling the truth. This was evident in Kenya where, during the AMP hearings I attended, where I heard little that was new and not a single admission of personal responsibility or guilt. Instead, testimonies were characterised by five discursive strands of responsibility denied: denial through a transfer of responsibility, denial through a questioning of sources, denial through amnesia, denial through a reinterpretation of events and an assertion of victimhood, and denial that events constituted a wrongdoing. However, while AMPs denied responsibility, none denied that injustices had occurred. As a result, while the hearings provided little clarity on how and why a series of reported events may have occurred, they simultaneously drew attention to, and recognised, past injustice. In this way, they provided a public enactment of impunity: Kenya’s history was replete with injustice, but AMPs were unwilling to shoulder any responsibility for it.

This ongoing culture of impunity points to another issue, which is that – for most victims – injustices clearly do not belong to the past but to the present and future. The loss of a person or income, for example, often constitutes a course that now seems beyond reach – from the hardship that accompanies the loss of a wage earner to the diminished opportunities that stem from a child’s extended absence from school. However, the past also persists in other ways, from the injustices that never ended, such as gross inequalities or corruption, to fears of repetition and experiences of new injustice.

Unfortunately, the idea that one can ‘look backwards to reach forwards’ downplays the complex ways in which the past actually persists, and possible futures infringe on the present. This is problematic since it can encourage a situation where small changes dampen demands for more substantive reform. At the same time, it can facilitate a politicised assertion of closure that excludes those who do not buy into the absence of the past, the newness of the present, or the desirability of imagined futures and provides a resource to those who seek to present such ‘difficult people’ as untrusting, unreasonable and unpatriotic.

This is not to say that truth commissions are useless and should never be considered. On the contrary, many view speaking as better than silence, while the commission’s report provides a historical overview of injustice in Kenya and a range of recommendations that activists and politicians are using to lobby for justice and reform.

However, when introduced, truth commissions should be more aware of the importance of persuasive performances and how their initial reception and longer-term impact is shaped by broader socio-economic, political and historic contexts. Truth commissions also need to adopt a more complex understanding of the ways in which the past persists, and possible futures infringe on the present and avoid easy assertions of closure.

Ultimately, such ambitious goals as truth, justice and reconciliation require not Freudian ‘talk therapy’, although catharsis and psycho-social support are often appreciated, but an ongoing political struggle, and substantive socio-economic and political change, which something like a truth commission can recommend, and sometimes contribute to, but cannot be expected to achieve.

This article was first published in the Review of African political Economy (ROAPE).

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The African Union and the ICC: One Rule for Kings, another for the Plebs

The African Union complains that the International Criminal Court is biased only when an African head of state stands accused.

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During the five-year-long proceedings at the International Criminal Court (ICC) against former Ugandan rebel commander Dominic Ongwen, there was not a peep from the Ugandan government about the ICC’s bias against Africans.

Uganda’s President Yoweri Museveni did not show any such restraint towards the ICC when he was the chief guest at the April 2013 inauguration of then newly elected Kenyan President Uhuru Kenyatta.

“I was one of those that supported the ICC because I abhor impunity. However, the usual opinionated and arrogant actors using their careless analysis have distorted the purpose of that institution,” Museveni said in his 9 April 2013 speech. The actors he made indirect reference to were unnamed Western countries.

Museveni accused those actors of using the ICC, “to install leaders of their choice in Africa and eliminate the ones they do not like.”

At the time Museveni spoke, Kenyatta and his deputy William Samoei Ruto were due to face trial at the ICC. The case against Kenyatta was terminated in March 2015 before trial hearings began. Ruto’s case was terminated in April 2016 after the prosecution had called its witnesses. In a majority decision, the judges said the case against Ruto and former journalist Joshua arap Sang had deteriorated so much that they could not determine Ruto’s and Sang’s innocence or guilt. The judges said the case deteriorated because of a campaign to intimidate and bribe witnesses.

No sense of irony

During the April 2013 inauguration of Kenyatta, Museveni exhibited no sense of irony when he accused unnamed actors of using the ICC to eliminate leaders they did not like. By the time Museveni was making his speech, his government had already debated and agreed to use the ICC as one way of “eliminating” its problems with the Lord’s Resistance Army (LRA) rebel group in northern Uganda. In December 2003 Uganda formally asked the ICC to investigate the atrocities committed in northern Uganda.

Following that formal request, Uganda shared with the ICC’s Office of the Prosecutor (OTP) several years’ worth of recordings of the government’s intercepts of LRA radio communications. Together with those recordings, the government also gave the OTP the contemporaneous notes made of the intercepts. On top of that, the government also gave the OTP a list of 15 LRA leaders it believed were responsible for the atrocities committed in northern Uganda.

All this emerged during the course of Ongwen’s trial at the ICC for his role in atrocities committed between 2002 and 2005 in northern Uganda. Ongwen, a former LRA commander, was convicted of 61 counts of war crimes and crimes against humanity in February this year and was sentenced to 25 years in prison in May. Ongwen is in the process of appealing against his conviction and sentence.

In his April 2013 speech, Museveni acknowledged that his government had cooperated with the ICC. “We only referred Joseph Kony of LRA to the ICC because he was operating outside Uganda. Otherwise, we would have handled him ourselves,” said Museveni. This statement is only partly true.

When in December 2003 Uganda formally requested the ICC to investigate the atrocities committed in northern Uganda, Kony was based in what is today South Sudan. But he was there with a small group of senior LRA commanders and other LRA members. During Ongwen’s trial, the court heard that by the time Uganda made its referral to the ICC, most of the LRA’s commanders and members had left the group’s rear bases in then southern Sudan and crossed the border back into northern Uganda. This is because Uganda had reached a deal with Sudan that allowed it to cross the border and attack the LRA’s rear bases. Uganda called this military offensive Operation Iron Fist.

African leaders protecting each other

The Ugandan government’s actions may seem contradictory but they fall well within the pattern African leaders have adopted when it comes to the ICC. Whenever there has been a case against an African president or deputy president at the ICC, this has been discussed at the African Union. As for ICC cases against other Africans, the African Union has not discussed them or passed resolutions on them, even if those cases involved former presidents or vice presidents. Despite its contradictory approach towards ICC matters, the African Union has not shied away from accusing the ICC of having an Africa bias.

Ever since, in July 2008, the OTP applied for an arrest warrant against then Sudanese President Omar al-Bashir in connection with the atrocities committed in Sudan’s western region of Darfur, the ICC has been on the agenda of the regular African Union meetings of presidents and prime ministers. ICC pre-trial judges eventually issued two arrest warrants against al-Bashir in March 2009 and July 2010.

African heads of state and government usually meet twice a year as the summit of the AU. Between 2009 and 2020, at each of those summits, they passed resolutions on the ICC or they reaffirmed past resolutions on the matter and directed a ministerial committee to follow up on those resolutions. The resolutions African leaders have passed at these summits have called for the termination or deferral of cases at the ICC implicating serving heads of state or their deputies.

Despite its contradictory approach towards ICC matters, the African Union has not shied away from accusing the ICC of having an Africa bias.

None of the resolutions has mentioned any of the other cases that have come before the ICC such as the one against Laurent Gbagbo, Ivory Coast’s former president, or the one against Jean-Pierre Bemba, a former vice-president and senator of the Democratic Republic of Congo. The ICC has concluded the cases against Gbagbo and Bemba, acquitting both of them.

The African Union has not been the only critic of the Africa-bias in case selection at the ICC. Academics, lawyers and members of civil society have all criticised or highlighted this bias. But the African Union has been the loudest critic. And what the African Union has said on the issue has often been summarised to mean Africa is against the ICC.

Presidents have immunity, ok?

But this paring-down a complicated issue has blurred the African Union’s two-track approach in its relationship with the ICC. Whenever a head of state such as Sudan’s Omar al Bashir is the target of an arrest warrant, the African Union is strident in its criticism of the court. After al-Bashir was toppled from power in April 2019, his arrest warrants ceased to be the subject of AU resolutions.

Instead, the AU has now turned its focus on the issue of the immunity of heads of state and other senior government officials. Under the Rome Statute, head of state does not have immunity if that person is charged with a crime under that Statute. What’s more, the ICC regularly communicates with member states when the court has been informed that a person for whom there is an outstanding arrest warrant is traveling to those member states.

This was the case with al-Bashir when he was Sudan’s president. Some countries chose to ignore the ICC’s communication. Others advised al-Bashir not to travel to their country and risk arrest. And some have argued they could not arrest al-Bashir because he was in their country to attend an international meeting they were hosting and that, under international customary law, al-Bashir enjoyed immunity for the purpose of the meeting. This is what South Africa and Jordan argued when the issue of immunity for heads of state was litigated before the ICC.

The most recent AU summit resolution on the ICC was issued in February 2020. In it, AU member states are called on to “oppose” the ICC Appeals Chamber judgement in a case Jordan had filed. The resolution said the decision by the ICC Appeals Chamber was, “at variance with the Rome Statute of the International Criminal Court, customary international law and the AU Common Position.”

The judgement referred to in the AU resolution dealt with the question of whether Jordan, as an ICC member, should have arrested al-Bashir when he went to Jordan in March 2017 to attend a regular summit of the League of Arab States. The ICC Appeals Chambers was unanimous that Jordan should have arrested al-Bashir when he visited that country.

After al-Bashir was toppled from power in April 2019, his arrest warrants ceased to be the subject of AU resolutions.

The five-judge panel also agreed that customary international law gave heads of state immunity in certain circumstances such as immunity from another country’s jurisdiction. But the Appeals Chamber concluded that such immunity did not extend to executing ICC arrest warrants.

The AU’s call to oppose the ICC Appeals Chamber’s May 2019 judgement on Jordan ignores one thing: the AU made submissions to the Appeals Chamber before it reached its judgement. The AU made its submissions at the invitation of the Appeals Chamber. The AU’s chief lawyer, Namira Negm, led the team that argued its submission during the hearings on the Jordan case that were held between 10 and 14 September 2018.

In the February 2020 resolution, the AU also asked African members of the ICC to raise before the court’s membership issues that concern African states such as “the rights of the accused and the immunities of Heads of State and Government and other senior officials.” The resolution further asked African members to “propose necessary amendments to the Rome Statute within the ambit of the ongoing discussions on the reform of the ICC,” by its membership.

Making peace without al Bashir

One reason the AU gave against effecting the arrest warrants against al Bashir was that he was key to bringing peace to Sudan’s western region of Darfur. The AU was involved in negotiations for peace in Darfur, a process that has been on and off over the years. Ironically, once al-Bashir was removed from power in April 2019, the transitional authorities who replaced him were able to initiate and conclude peace deals on the Darfur conflict last year.

In August this year, the Cabinet in Sudan resolved to hand over al Bashir to the ICC in execution of the two arrest warrants against him. This is a significant step since the transitional government took office in 2019 and indicated that Sudanese authorities were considering reversing the previous position that al Bashir would not be handed over to the ICC. The next step is for the overall transitional authority in Sudan, the Sovereignty Council, to discuss the Cabinet decision and decide whether to endorse it.

Ignoring victims

The criticism levelled at the ICC that it is biased against Africa often ignores a key issue: the victims of conflict on the continent. When a conflict is at its peak, victims will receive emergency aid. The more prolonged a conflict becomes, the less aid victims receive. Rarely will such aid be from the victims’ government. And often that foreign-donated aid is all that victims of conflict can expect.

The perpetrators of the conflict that made them victims are rarely held to account for the atrocities they committed. Yet, victims live with the consequences of those atrocities for the rest of their lives. This was the constant refrain of the victims of the northern Uganda conflict who testified during the Ongwen trial.

The criticism levelled at the ICC that it is biased against Africa often ignores a key issue: the victims of conflict on the continent.

Women testified about their families rejecting them because they returned home with children they gave birth to while with the LRA. One person testified about having to change schools several times because teachers and students abused him when they found out he had been in the LRA. Another person testified about wanting to resume his education that was interrupted when he was abducted by the LRA but he did not earn enough to do that and also educate his children. So he has focused on educating his children.

These and other victim stories are rarely spoken about whenever the ICC is criticised of having an African bias.

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