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Enter the Dragon: China’s Media War in Africa

13 min read.

China, an emerging global power, and Britain, a retreating and politically troubled former colonial power, will channel their “media wars” from their bases in Nairobi. It will be a battle between a new Eastern power that hopes to gain a foothold in the continent’s unexplored extractive sector and a nostalgic Western power keen not to lose its control over African and Asian Commonwealth countries.

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Enter the Dragon: China’s Media War in Africa
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“The whole secret lies in confusing the enemy so he can’t fathom the real intent.” – Sun Tzu (Chinese war leader, strategist and philosopher)

On New Year’s Eve 2016, President Xi Jinping of China sent a congratulatory message to the China Global Television Network (CGTN), which had rebranded and relaunched its former label, the China Central Television (CCTV).

“Tell China stories well, spread China stories as well, spread China’s voice well, let the world know a three-dimension colourful China and showcase China’s role as a builder of world peace,” extolled the president while inaugurating the channel’s newly enlarged and sophisticated production studios in Beijing.

CGTN, which is the biggest news network and production house in mainland China, sustained its operations by beaming and broadcasting news as CCTV, just like before, and therefore was not affected by the rebranding. It has continued to telecast news and make documentaries and news programmes tailored for local consumption that are sanctioned by the Central Committee of the Communist Party. CGTN is the equivalent of the state-run Kenya Broadcasting Corporation (KBC), but with the clout and financial muscle that makes KBC look like one of its many news production departments.

But it is the CGTN’s operations and manoeuvres geared to cast China as a global phenomenon in the 21st century and beyond that the Central Committee is really keen to see. It would like its wings to spread worldwide so as to, “showcase China’s role as a builder of world peace”, as President Jinping mildly put it more than two years ago. Delivered as a message to a world that is undergoing tumultuous political shocks, it was a statement that camouflaged China’s real and serious global expansionist intentions as we enter the third decade of the 21st millennium.

That statement, as innocuous as it sounded, is a characteristic of Chinese foreign policy lingo that deliberately seeks to not frighten or scare its neighbours, such as India, Japan and South Korea, into alertness (military or otherwise), or to not arouse suspicious feelings (which might lead to heightened escalation of global drums of war) among fellow world economic powers, such as Germany, Japan, the United States and the militaristic Russia. Such a statement also serves to calm and reassure countries in Africa and Asia that China hopes to extract raw materials from.

It is a philosophical underpinning that was underscored by Deng Xiaoping, the Chinese post-modern reformist leader who ruled between 1978 and 1989, who famously stated in the early 1980s: “Observe development soberly, maintain your position, meet challenges calmly, hide your capacity and bide your time, remain free of ambition, never claim leadership.”

Yet, beneath the carefully crafted and worded statements by the president and the senior Central Committee members that portray China as a humble and benevolent Big Brother – whose only agenda is world peace and harmonious co-existence – is a hidden, subtle, and ruthless ambition and pursuit of global power that China hopes to use to conquer the world and re-establish China as the dominant civilisation that it once was in the centuries gone by.

It is a philosophical underpinning that was underscored by Deng Xiaoping, the Chinese post-modern reformist leader who ruled between 1978 and 1989, who famously stated in the early 1980s: “Observe development soberly, maintain your position, meet challenges calmly, hide your capacity and bide your time, remain free of ambition, never claim leadership.”

CGTN is a consolidation of six carefully picked foreign-language operations. Apart from Chinese, the channel broadcasts in Arabic, English, French, Russian and Spanish. It is a convergence of print, radio, TV, and online (new media) publication. In 2009, the Chinese government had already set $6.5billion aside for CCTV’s rebranding and expansion into CGTN. In November 2018, CGTN opened a state-of-the-art bureau in Chiswick, a wealthy London suburb. That bureau is supposed to cover the length and breadth of continental Europe.

The One Belt, One Road (OBOR) initiative is the combination of railway lines (belts) and (silk) roads that are supposed to link mainland China with the rest of the world, collapsing distances for a hungry China in need of raw materials for its economic quantum leap and eventually its world political power. It is China’s latest massive agenda, which it hopes will catapult it to an economic power house that rivals every other world economic power within 25 years.

Italy, Portugal and Greece are among Europe’s rancorous democracies that have bought into the idea of OBOR. China will be building a road and railway line into Italy and with that link, create trade routes and have access to continental Europe’s goods as it taps into its engineering and technological advancement. The newly opened CGTN bureau in London, one of the biggest financial hubs in the world, will, among other things, capture and tell the story of the entry and success of OBOR in Europe.

Nairobi and news out of Africa

However, it is the CGTN’s Nairobi bureau that continues to elicit excitement and which is being closely watched (pun intended) by Western powers who once totally commanded and controlled the information flow entering and leaving the country and region. The bureau officially started broadcasting from Nairobi on January 11, 2012 as CCTV. On December 31, 2016, the bureau launched its CGTN operations and was made the biggest bureau in Africa, whose operations cover the entire continent, especially in regions that China has a keen interest in. Just around the same time, Xinhua, China’s largest news agency, signed a pact with Nation Media Group (NMG), ostensibly to trade news, but really for Xinhua, to have access to tell its stories in the largest newspaper in the region.

“Nairobi’s geopolitical strategic location – its nearness to the Horn of Africa, the Great Lakes region, the Indian Ocean littoral and maritime connection, its physical infrastructure and communications advancement and the fact that it’s the diplomatic corps’ hub in the region, easily persuaded the Central Committee of the Communist Party to make Nairobi the centre of its media operations outside of Beijing.”

Other CGTN bureaus in Africa exist – in Johannesburg, Lagos, and Cairo. The other major bureau outside of Beijing and Nairobi is the Washington DC bureau. The Washington bureau gives the Chinese an opportunity to show the Americans that they can also operate on their soil. However, in terms of strategic significance, geopolitical importance and long-term plans, the Nairobi bureau far outflanks the Washington bureau.

“Nairobi’s geopolitical strategic location – its nearness to the Horn of Africa, the Great Lakes region, the Indian Ocean littoral and maritime connection, its physical infrastructure and communications advancement and the fact that it’s the diplomatic corps’ hub in the region, easily persuaded the Central Committee of the Communist Party to make Nairobi the centre of its media operations outside of Beijing,” said a senior CGTN producer based in Nairobi. “It is also the best place to scoop the Western media’s presence in this region and indeed in the whole of Africa.”

The re-organisation of the state-controlled CGTN in Nairobi did not go unnoticed by the Western media based in the city. At just about the same time, the British Broadcasting Corporation (BBC), another state-run media conglomerate, was also expanding and moving its Nairobi operations from the central business district offices at Norfolk Towers to the quiet suburb of Riverside Drive. Its first move was to raid CGTN’s experienced staff – editors, reporters and mainly producers – and to hike their salaries and remunerations as an incentive to luring them from the heavily-funded Chinese media house, where money was the least of its problems. In its expanded offices, the BBC Nairobi bureau, which has been reporting on Kenya and the East African region for the last five decades or so, employed 300 journalists (four-fifths of whom were locals) to boost its image and presence.

“Our most important investment,” opined the Director of BBC News, Francesca Unsworth, “will be training the next generation of African reporters and producers to world class standards.”

This dramatic shift in the BBC’s policy does not surprise Gray Phombeah, who was the BBC’s Nairobi bureau chief from 2006 till 2008. When he became bureau chief, the BBC’s Nairobi office was tiny, comprising only around ten people. By the time he left in October 2008, it had expanded to more than 30 staff members, the majority of whom were Kenyan journalists. “It was during this time that the BBC broadcast for the first time the Swahili programme, Amka na BBC, from outside its London headquarters,” he says.

However, Phombeah is aware that “Africanising” the BBC bureau in Nairobi does not necessarily mean that Kenyan or African stories will be told from an African perspective and without bias. “We have to remember that the BBC World Service is Britain’s soft power, and so who controls and manages its bureaus abroad is part and parcel of that. The fact that the BBC has recognised the importance of having African journalists telling the continent’s stories is a good thing, but we must also accept the fact that only those stories that are palatable or acceptable to the British ruling class and Foreign Office mandarins get told.”

Clearly CGTN’s serious rebranding and infusion of more money by the state for its expansion and penetration into the African continent merited the BBC’s re-evaluation of its operations in Africa – whether by default or design. The BBC also “relaunched” in November 2018 to position itself as the premier global broadcaster that takes the African continent seriously.

Two decades ago, in 1998, the BBC World Service had already opened its office in Nairobi. “The BBC began by moving its operations from Johannesburg to Nairobi,” said a senior BBC editor, who is not authorised to comment on the BBC’s Africa media plans. “Several things mitigated the shift: labour issues – the trade unions in South Africa are very powerful and strong – the worrying issue of escalating xenophobia and the fact that Johannesburg oftentimes is far removed (geographically and its heartbeat) from the continental issues that are central to the rest of the African countries.”

Africa is as important to the BBC as it is to CGTN. The BBC, in a project it is calling World 2020, in which its strategic expansion plans in Africa from its Nairobi headquarters are expected to have reached their zenith, is also expanding into Asia, building networks and partnering with local radio and TV stations to create as big a BBC audience as it possibly can.

“The Kenyan journalists working for CGTN have no say whatsoever on content development or editorial matters,” said an editor, who has since left the global television network. “That’s the prerogative of the Propaganda Department of the Communist Party.”

“Today, the United Kingdom’s best known and strongest foreign policy brand is the BBC,’ said the BBC senior editor. “With the Brexit imbroglio, the UK must look outwards and reach out to countries that it has had past relations with.” (Many of these countries, it goes without saying, are former colonies.)

The Propaganda Department

CGTN currently employs 150 local journalists who work as camera personnel, studio technicians, editors and producers, but the managerial and editorial decisions remain solely in the hands of the expatriate Chinese staff.

“The Kenyan journalists working for CGTN have no say whatsoever on content development or editorial matters,” said an editor, who has since left the global television network. “That’s the prerogative of the Propaganda Department of the Communist Party.”

CGTN is not in the business of making profits, but countering what it considers to be the Western media’s distortion of the Chinese presence on the continent, said the former CGTN editor. “The major agenda for CGTN in Africa is propaganda, that is propagating China’s interests in Africa, through its own voice and medium.” To this extent, said the editor, “the Communist Party’s Propaganda Department heavily channels inexhaustible funds to CGTN as part of it global information warfare.”

But a senior assistant director of news at CGTN, a Kenyan, refutes the assertion that CGTN is an out-and-out self-censorship propaganda channel. “True the Managing Editor is Chinese, but his substantive editors are international staff, and they are anybody else but Chinese. CGTN only controls news that touch on Chinese interests and its foreign policy, its Asian neighbourhood, and major state conferences, like the just concluded One Belt, One Road International Forum that took place in Beijing last month…every other news is fair game.”

The most boring time to work for CGTN, said the director of news, is the month of March. “It’s the political season in China. That’s when the executive committee of the Communist Party meets and deliberates on issues. It also the time Parliament does the same, as it passes legislative laws deemed appropriate for the country. On these matters, nobody is better placed to handle them than the Chinese staff themselves. You easily could lose your job for ‘misreporting’ these events.” Misreporting here meaning reporting impartially and being critical, if need be.

CGTN may not be as thorough as the BBC, but by and large it is building its content for its Africa coverage, said the director of news. “China has a 100-year-long term plan for Africa and a fully-fledged news coverage of Africa is part of the plan. When CCTV started in 2012, it used to have only 30 minutes of African news. Soon, it was broadcasting the one-hour lunchtime Africa Live. Africa Live soon had two editions – the lunchtime one between 1 pm and 2 pm and the 8pm one. Now, they even have Global Business Africa, a one-hour programme dedicated to African business news daily between 9pm and 10pm.”

Other programmes include the weekend shows, Face of Africa and Talk Africa. Face of Africa, a documentary, is shown on Sundays for 30 minutes, while Talk Africa is televised on Saturdays, between 8.30pm and 9pm. Talk Africa touched on various African issues, be they economic, political or social. There is also 30 minutes of African sports reporting on Saturdays. CGTN’s goal in Africa is to eventually sell China’s brand image to every corner of the continent, said the director of news.

In this current world of media explosion and Internet influence, if you can control the information warfare globally, you have half won the battle against your adversaries, said CGTN’s former editor, who added that China has taken this dictum extremely seriously. China believes that it is only by controlling and telling its narratives through its own kaleidoscopic lenses that it will achieve its own goal and pursuit of ultimate power and influence in the world.

But more than telling its own narratives and controlling what kind of news comes from its channels, the Chinese also realised that the Western media in Africa does not report positively about the continent. “They understood there is a gap they can plug in, even as they plot on how to maximize and rationalise their presence on the vast continent,” said the CGTN news director.

“In Africa, CGTN is competing with the Americans especially, whose media presence in the continent has been waning. The Cable News Network (CNN) and the Voice of America (VOA) are the only American news media outlets that report anything on Africa and when they do, it’s not all positive. Even then, CNN has one single correspondent dedicated to the whole of Africa.” The director of news said many American journalists consider being posted to Africa as a downgrade – in their minds Africa is still this backward, backwaters continent.

In the information warfare in Africa between America and China, “America has unfortunately been losing the (propaganda) war,” said the CGTN producer. “Today, when CNN wants to report on Africa, it relies on just one leanly-staffed bureau based in South Africa, and if it needs support, it flies in one of its various correspondents, who jet in in the morning and by evening have jetted out.”

For example, when David McKenzie, the CNN reporter stationed in Johannesburg, or Nina Elbagir, the Sudan-born CNN foreign correspondent, report on Africa, it is usually about a tragedy and generally bad news. “The only time CNN reports big time on Africa is when a calamity has taken place…CNN’s model on reporting Africa has remained the same since the days of Jeff Koinange – who was also the sole reporter from Cape to Cairo, Dar es Salaam to Dakar, Luanda to Lagos. Hence, with the exception of BBC, the Western media doesn’t have a major presence in Africa,” said the director of news.

Natural resources diplomacy

The decision by China to pick Nairobi as its continental operational base was a well- calibrated move and a “diplomatic coup” to bolster its grip on the country’s and the continent’s strategic extractive resource materials. China, through CGTN, views itself as a friend of Africa and enabler of its developmental progress and peacekeeping force, hence, its “favourable” reporting on its working relations with some of the countries it is directly dealing with.

The producer observed that “CGTN will not do ‘human rights stories’…the kind of stories that Al Jazeera, BBC and other international media organisations are wont to doing in Africa because the Communist Party has a clearly spelt out non-interference [foreign] policy that states that China will not seek to influence any country’s domestic politics.”

“China opened its first overseas military base in Djibouti in July 2017 – People’s Liberation Army (and) Navy (PLAN) – from there it coordinates its peace keeping missions in Africa,” said the CGTN producer. “Nairobi is close enough to be reporting (positively) on the Chinese force working in trouble spots such as Mali and South Sudan, helping to stabilise those countries (peacefully) without China necessarily interfering with their domestic affairs.” According to the Council on Foreign Relations, an American think-tank, China in 2017 contributed about 2,500 troops and military experts to six United Nations peacekeeping missions in Africa.

The producer observed that “CGTN will not do ‘human rights stories’…the kind of stories that Al Jazeera, BBC and other international media organisations are wont to doing in Africa because the Communist Party has a clearly spelt out non-interference [foreign] policy that states that China will not seek to influence any country’s domestic politics.”

Hence, “China’s entry into Africa – with its value-neutral ‘natural resources diplomacy’ – has outflanked the West and forced a donor retreat from democracy,” recently wrote Wachira Maina, a constitutional lawyer.

To shut its (Western media) critics, CGTN has ostensibly been reporting good news coming out of Africa, such as innovation and technological advancement in relation to small and medium enterprises (SMEs) and business concerns all over Africa, said the CGTN producer. “CGTN content is heavily slanted towards their investments in Africa – mainly in infrastructure and telecommunications, light industries (solar panels and green energy), mobile telephony assembly, mobile gadgets customised for Africa, and heavy commercial vehicle assembly in South Africa.”

China’s First Auto Works (FAW), the long distance truck engines and body works, opened its first plant in Johannerberg and CGTN never ceases to report about how China is partnering with Africa to build and develop its future production plants. Until Huawei, a Chinese telecommunication company, entered the African market in 1998, Africa’s telecommunication industry was controlled and dominated by Western multinational corporations, such as Ericsson, Motorola and Nokia. A dozen years later, the stiff market competition triggered by Huawei and other Chinese private companies have altered the terrain completely. The cost of telecommunications equipment and rates have gone down drastically.

Five months after CGTN was inaugurated in Beijing, in May 2017, Kenya launched a $3.2 billion standard gauge railway line funded by China, linking the capital Nairobi to the port of Mombasa, arguably making it the biggest infrastructure project in Kenya since independence in 1963. Popularly known as the Standard Gauge Railway (SGR), the railway line is part of the OBOR project. That railway line is supposed to run all the way to the Democratic Republic of Congo (DRC), passing through Uganda, Burundi and Rwanda. It is also supposed to divert to South Sudan and Ethiopia.

The East-West media war

“Under the One Belt, One Road initiative, China is investing nearly $900 billion in what it thinks of as a trunk silk-road. One trunk is an overland network of rail, road and power grids that link China’s industrial heartland to the vast oil, natural gas and mineral resources of Central Asia and on the market of Eastern and Western Europe,” observed Wachira. “The second trunk is a maritime silk road with two branches – an Indian Ocean link to sub-Saharan Africa and a Red Sea link to North Africa and Europe where ‘maritime road and overland belt’ converge.”

China, an emerging global power, and Britain, a retreating and politically troubled former colonial power, will channel their “media wars” from their bases in Nairobi. It will be a battle between a new Eastern power that hopes to gain a foothold in the continent’s unexplored extractive sector and a nostalgic Western power keen not to lose its control over African and Asian Commonwealth countries. Either way, both have decided to use the media as soft power to endear themselves to the continent.

In China in Africa: Power, Media Perceptions and a Pan-Developing Identity, Shubi Li and Helge Ronning argue that China’s media presence in Africa has increased in the last couple of years. “The country’s major media representative, Xinhua News Agency, added five more branches in 2011.”

The authors point out that 150 journalists and 400 local staff in Nairobi dispatch 1,800 pieces of news in English every month. “Radio has been an indispensable means of transmitting soft power, especially in a continent where half of the countries have a 30 percent illiteracy rate,” says the book’s authors. “In February 2006, China Radio International (CRI) launched is first overseas FM radio station in Nairobi with a schedule of daily programmes for 19 hours in English, Kiswahili and Chinese,covering China’s economic, social and cultural development.”

But China’s penetration of the Africa media scene has not been without criticism: “China has a record of jamming transmissions that it finds unpalatable,” said an editorial in the Zimbabwe Independent, which is quoted in the book. The editorial said that China also passes this technology to its (African) friends. Said the editorial: “China’s strict control of media and the Internet is not helping when it attempts to offer media aid in Africa.”

On the other hand, observe Li and Ronning in their book, “Chinese media following instructions from the Central Propaganda Department has been educating the public about the importance of building up soft power internationally and exporting the Chinese development model.”

China’s growing global dominance in the last quarter of a century has grown significantly. Indeed, the recently concluded One Belt, One Road International Cooperation Forum in Beijing further cemented Chinese dominance as a fast-rising global superpower. The country’s media presence in Africa is its latest strategy for global supremacy.

However, unlike that of other superpowers, the Chinese model of world domination is more subtle, as observed by the great Chinese war leader, strategist and philosopher, Sun Tzu, who said, The whole secret lies in confusing the enemy so he can’t fathom the real intent.”

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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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