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Elections at a Discount: Uganda’s Political Imagination Under the Spell of Electoral Fundamentalism

11 min read.

Unless another mode of political imagination is envisioned and then institutionalised in the always uneasy trilogy of state-market-society relations, a truly democratic political order in Uganda today will remain elusive.

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Elections at a Discount: Uganda’s Political Imagination Under the Spell of Electoral Fundamentalism
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The chairperson of Uganda’s Electoral Commission, Justice Simon Mugenyi Byabakama has declared the National Resistance Movement (NRM) presidential flagbearer, fifth-time incumbent Yoweri Kaguta Tibuhaburwa Museveni, winner of the just concluded 2021 presidential polls. The emotive dust in the cyber-political atmosphere is yet to settle down. The country’s electorate together with all those associated with Uganda diplomatically or otherwise are also yet to come to terms with the outcome of the 2021 elections. In the meantime, the debate about liberal democracy within the parameters of national sovereignty pitted against cyber-globality rages on.

The birth of electoral fundamentalism: the February 1962 polls

As British colonial rule in Uganda wound up, the 1949 Local Government Ordinance intentionally placed authority at sub-national levels (local government) in the monarchical set-up in all kingdom areas. This legal framework precipitated a double move: the minorisation of a great many social groups in those kingdom areas and the provincialisation of social groups in non-kingdom areas. The 1949 Ordinance here buttressed the process already underwritten by the 1900 (B)Uganda Agreement. The subsequent passing of the 1955 District Councils Ordinance, however, augured the prospect for democratisation. The promulgation of the new ordinance drew the contours of an inaugural democratic dispensation in which the holding of universal adult suffrage became sacrosanct.

The first half of the 1950s in Uganda had seen two important developments on the political stage: the Uganda National Congress (UNC) and the Democratic Party (DP), respectively founded as political parties in 1952 and 1954. These parties appealed to different groups for political followership. Although nationalist in rhetoric, the UNC — first under the leadership of I.K. Musaazi — was already stunted by the ethnic and religious bases of Ugandan politics.

So divisive along ethnic and religious lines were the politics articulated by the UNC that it eventually split into factions. The most prominent faction was Milton A. Obote’s UNC, which subsequently metamorphosed into the Uganda Peoples’ Congress (UPC) after a merger with the 1958-founded Uganda Peoples’ Union. The formation of the DP in 1954, on the other hand, was a response to the struggle for power dating back to the 1890s from which the British colonists and their Protestant allies in Buganda had emerged victorious.

Taking advantage of democratisation reforms in motion in Buganda since the late 1940s, the Ganda Catholic élite made a bid to challenge the chiefly Protestant establishment at Mmengo. They thus fielded Omulamuzi Matayo Mugwanya for Katikiroship — a far more influential premiership position in Buganda Kingdom hitherto reserved for Protestants. The establishment closed ranks to ensure Mugwanya was not elected. Matayo Mugwanya then became first President-General of the DP, a party whose initial raison d’être was to challenge the Protestant establishment at Mmengo and elsewhere. With the formation of the UPC and the DP (soon after under the leadership of Benedicto Kiwanuka), political lines were more boldly drawn in the run-up to Uganda’s accession to independence from British colonial rule. At stake, however, was a viable system of administration for independent Uganda: a political framework of federalism (ethnic or otherwise) was pitted against that of centralism (by premiership or otherwise).

The consequential national elections set in February 1962 framed the choice for a political framework for independent Uganda in stark contrast: federalism versus centralism. The report of a commission appointed by the folding colonial administration under the chairmanship of Lord Munster, published in 1961, had recommended that Uganda should be a single democratic state with a strong central government.

The Munster Commission Report, however, underscored that the relationship between the central government and Buganda should be federal in nature, while that with the other kingdom areas of Ankole, Bunyoro, Toro and the Territory of Busoga, should be semi-federal. So, then, were the 1962 polls, with late colonial British brinkmanship, cast in a deeply fundamentalist fashion. The coming together of Milton Obote’s Uganda People’s Congress with the Mmengo establishment under the auspices of the Kabaka Yekka party — characteristic of a political matrimony full of unholy romance — afforded an electoral victory to Obote as the new Prime Minister-elect. A fundamentalist belief in universal adult suffrage to secure rather than challenge a preferred political status quo was hence set in motion for would-be independent Uganda.

The coming of age of electoral fundamentalism: the December 1980 polls

Against the backdrop of the 1980 ballot was the firing bullet. On the morning of 30 October 1978 thousands of Idi Amin’s troops crossed into northwest Tanzania and occupied the Kagera Salient, an area of 710 square miles. It took two months for the Tanzanians to marshal their army. In January 1979, they pushed through Kagera, crossed the border and invaded Uganda. In their company were militias composed of Ugandan exiles.

Amin’s military put up a desultory defense. Tanzanian troops, alongside a cocktail of soldiering Ugandan exiles, made fast progress: on 11 April 1979 they victoriously marched into Uganda’s capital and put an end to Idi Amin’s government. In the wake of Amin’s ousting, the de-facto Uganda National Liberation Front (UNLF) authority eventually called for national elections to choose the leaders who would form a new government. The electoral commission, it is reported, aimed to establish polling stations for every 1,000 voters.

Though the equipment was almost entirely absent — three months before the election day the then electoral commission asked foreign governments for 50 duplicating machines, 200 typewriters, 10,000 duplicating stencils, 15,000 ballot boxes, 15,000 padlocks, 250 calculators, 12,000 lanterns, and 100 Land Rovers to transport election materials — crowds of up to 2,000 people queued to vote in Kampala, and voters in Mbarara, for instance, walked as far as ten miles in order to reach their polling stations. In Gulu, it was reported, there were so many voters that by 11 a.m. election officials had run out of ballot papers.

Marred by serious allegations of malpractice, the then electoral commission declared the outcome of the bitterly contested election in favour of Milton Obote, the man who Idi Amin had ousted in 1971. Even the diplomatically careful Commonwealth Observer Group that watched the December 1980 polls noted in their interim statement that “imperfections and deficiencies [of these 1980 elections] had caused deep unease”. The leaders of the Uganda Patriotic Movement — under the aegis of one of the former soldering Uganda exiles named Yoweri Museveni — called the elections “one of the greatest farces in electoral history”.

More than the 1962 electoral experiment, the 1980 polls embodied a political imagination obsessed with securing the status quo ante. Universal adult suffrage was here a rubber-stamp. Its aftermath hence begot a cesspool of violence. Obote’s 1980 inaugural speech painted a rosy picture of a regime which, from the onset, was set on the path to collapse. In February 1981, a militia — the National Resistance Army led by Yoweri Museveni — launched a guerilla war against Obote’s government. In the words of the Ugandan historian Abdu K.B. Kasozi, what followed were “four and one-half years of brute violence”.

The electoral saga of 1980 thus ended up being an additional plot in the long-drawn out narrative of political violence in contemporary Uganda. That the end of the Cold War further suffocated an already paralysed political imagination obsessed with electioneering is an indisputable fact in much of independent Africa, the façade of multi-party dispensation notwithstanding.

Electoral fundamentalism writ large: Bobi Wine and the new generational wave

Late in the afternoon of Thursday 17 August 2017 Kampala was in an uproar: the then 35-year-old Ugandan musician-turned-politician Robert Kyagulanyi Sentamu, better known as Bobi Wine, took the parliamentary seat for Kyaddondo East with a landslide victory in a by-election. The seat fell vacant when the losing NRM candidate, Sitenda Sebalu, filed an electoral petition which eventually successfully overturned the victory of his opponent, Apollo Kantinti, of the Forum for Democratic Change (FDC) party. Bobi Wine put forth his candidacy when a by-election was called. His triumphant entry into elective politics set the national political stage for the countdown to the 2021 polls.

Bobi Wine’s parliamentary representation of this no less important constituency of a great many urban poor on the outskirts of Kampala City came to symbolise an array of possibilities for a multitude of Ugandan youth to write themselves back into the country’s political history. For Kampala’s youthful and opposition-leaning electorate, as for the rest of the disenchanted youth across the country, Bobi Wine’s parliamentary victory vividly invigorated the belief in universal adult suffrage as the route par excellence to reclaim the country’s political leadership from what they see as a “non-responsive gerontocracy”. Never before in the course of the three-and-a-half decades of NRM rule have the batteries of electoral fundamentalism at both ends of the political spectrum been so charged.

One important lesson soon emerged: one person can make music and even make it very great, but one person cannot make politics. Politics, Bobi Wine and his immediate entourage quickly found out, does require mass mobilisation, association and alliances. The National Unity Platform (NUP) party thus came into being at the eleventh hour of the election clock. From the announcement of his parliamentary candidacy in May 2017 to assuming the presidency of the NUP party and subsequent presidential flagbearship in September 2020, Bobi Wine captured the country’s political imagination with the changing dynamics of the electorate much in his demographic favour.

But the character and scope of this political imagination were by no means revolutionary in any substantive sense. For the NUP and its charged supporters, the 2021 ballot was the new silver bullet to end all the ills besieging both the Ugandan polity and society. So contagious indeed was this belief in electoral fundamentalism across the political divide that politics beyond the horizons of universal adult suffrage were rendered inconceivable. In fact, it would be no exaggeration to argue that the electoral fever by this new generational wave in today’s Uganda seems to have brought to the fore a category of elites whom Jean-Germain Gros rightly labelled opportunistic democratizers. To be sure, despite the fact that universal adult suffrage remains a prerequisite for broader democratic practices, electoral exercises and democratic political order are certainly not synonymous.

One of Uganda’s bottlenecks beyond electoral fundamentalism: the land question

There is no longer doubt that land policies and land reforms in particular have moved to the very center of discussions about development in most of the global South and more particularly in sub-Saharan Africa. There seem to have emerged two main positions in the discussions about land reforms and economic development in Africa in particular, namely, the neo-liberal and the evolutionary.

The neo-liberal position argues that indigenous customary land tenure is static and a serious stumbling block on the road towards a functioning capitalism in sub-Saharan Africa. Hence, this should be replaced by individual land titles to fuel economic development. On the contrary, the evolutionary position argues that customary land tenure in sub-Saharan Africa is dynamic and gradually moving towards individual ownership and that actually, the titling programmes implemented by the state are doing more harm than good and simply not making capitalism work.

The case of Uganda demonstrates that there is no single answer to this debate. Some forces within the country advocate for large-scale mechanised agriculture, arguing that the land is underutilised. Other forces within the country want to maintain the status quo, and simply argue to be left alone to pursue the way of life they have known for generations.  Within this debate, questions over access to resources, the role of government, rights and responsibilities of citizens, and the most appropriate drivers of development are not agreed upon. Yet they remain pertinent to resolve in order for Uganda to achieve its own assigned goals within the globalised world of the 21st century.

Within Kampala and along highways in Uganda are signposts with bold words painted on them: “This Land Is Not For Sale” or “Land For Sale” with a cellphone number to be found right below the words. The competing visions on the value and meaning of land are evidenced by these signposts as well as through discussions with different stakeholders. Even within the central government’s own policies, there appear to be contradictory visions. For example, the current National Development Plan (now in its third phase) asserts that agriculture needs to be modernised, causing fear in some regions, especially the north where land is communally held.

The 1995 Constitution itself asserts that land belongs to the people and that those who are bona fide occupants of land can only be evicted for nonpayment of rent for two consecutive years, yet the government has in some instances promised plots of land to various investors without securing the agreement of the people. Ground rents, Busulu, are set by the government. In June 2012, for example, the government set the yearly rental fee for tenants in Kampala at 50,000 UGX (approximately US$15) while in rural areas the fee was set at 5,000 UGX (approximately US$1.5).

To further complicate the situation, there are four land tenure systems in Uganda, namely mailo, freehold, leasehold, and communal. Land cannot be owned by foreigners, but it can be leased for up to 99 years. The central government has also issued edicts that contradict some of the existing laws related to land. For example, in February 2013, President Museveni announced that the government was halting all evictions, whatever the reason.  So, while on the one hand the central government is saying it wants to attract foreign investment — and there are reports that it is working on large-scale land deals — on the other hand, the same government is assuring the people that evictions will not take place. The lack of certificates of ownership of land for many “bona fide occupants” also confuses the picture, while attempts to issue certificates of occupancy have been resisted by many private landlords and customary landowners who fear that the process of issuing certificates will only make it easier for the government to take over their land.

The tension between locals who wish to remain insulated from many of the drivers of globalisation and those who advance embracing these forces as a way of modernising or developing the state is evident in many places where land deals are being discussed in today’s Uganda.  One basic indicator of this tension is the characterisation of the phenomenon by different stakeholders: those in favour of modernisation of the agriculture sector, such as the government of Uganda or the World Bank, utilise terms such as “large-scale land lease” or “large-scale land investment” while those opposed to these types of deals utilise the term “land grabbing”.  A neutral term that seems palatable to both sides does not exist. Each terminology for the phenomenon brings with it an implied ideological orientation and a competing vision of the way forward. The bottlenecks relating to the land question in Uganda today will certainly not be fixed by the mere holding of popular elections, however free and fair, as currently professed by the localised liberal democracy script.

In lieu of a conclusion

As an historically underprivileged student of Western liberal democracy, Uganda today—across the political divide—is gravely suffering from electoral fundamentalism in the same way macroeconomists from the International Monetary Fund and the World Bank not so long ago suffered collectively from market fundamentalism. In the words of the Belgian historian David Van Reybrouck, the latter too believe that meeting the formal requirements of a system is enough to let a thousand flowers bloom in even the most barren desert. For a country that, since its founding moment in modern times, has been gripped by deep-seated antagonisms along religious, ethnic, class and political lines, the elitist organisation of general elections in the quest for a democratic political order ironically suffocates all opportunities for a “democracy-from-below”.

Those who, alongside Lancincé Sylla and Arthur Goldhammer, argue that period and popular elections provide a rational solution to the problem of succession would still have to remember that the early optimism about Africa’s democratic transition has met with new scepticism: political liberalisation under the dispensation of liberal democracy has shortened rather than aggrandised the time horizons of African heads of state at the expense of the development of institutions for the common good.

Moreover, the characteristic winner-takes-all kind of elections (as have been witnessed in the previous Ugandan electoral experiments) turn the pursuit of democracy into a matter of life and death, a zero-sum game whereby the elected government focuses on the systematic annihilation of the defeated party(ies), together with the constituencies (real or perceived) that support them.

Ironically, the script of liberal democracy now goes against the grain of a truly democratic order: the hunger for free and fair elections only ends up producing a power-hungry political elite characteristically hostile to the notion of democracy as once practised by the ancient Athenians. A political imagination thus undergirded by electoral fundamentalism ends up begetting a disenfranchised polity, with both the citizens and non-citizens within it deeply disenchanted.

The debate on the management of the electoral process in today’s Uganda is still heavily laden with the assumption that the key institutional players in the process — most notably the political parties — do represent the aspirations of the electorate, and that the general elections merely come into play to arbitrate over which of the contesting parties is deemed by the voting majority as best at addressing their concerns. Yet, the prevalent context strongly suggests that the demands of loyalty supersede efficiency, inclusivity and even (social) justice. Dooming as this context portends, electoral violence remains likely not least because power is sought by any means necessary. After all, hasn’t the predominant route to Uganda’s state power in past instances been the orchestration of political violence, of which electoral violence was the harbinger?

The litany of predicaments of social existence in current Uganda — from the systemic impoverishment of society with the blessing of the neoliberal polity to political violence with remarkable impunity — are not simply incidental problems which the holding of periodic and popular elections can easily fix. Rather, these are structural pitfalls sustained by a kind of political imagination deeply entrenched in an ill-negotiated neoliberal mode of governance. Thus, unless another mode of political imagination is envisioned and then institutionalised in the always uneasy trilogy of state-market-society relations, a truly democratic political order in Uganda today will remain elusive.

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David N. Tshimba is a lecturer at Uganda Martyrs University and Senior Research Fellow at the Refugee Law Project.

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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