TALKING POINT : Tanzania should not even think about exiting the ICC

I have followed with dismay the ongoing wave of African countries withdrawing from the International Criminal Court (ICC) and reasons being put forward. I keep my fingers crossed that my country, Tanzania, does not start to toy with the idea.

Burundi and South Africa have already taken the first steps towards exiting the ICC, but there seems to be a disconnect between reasons given for the move and the reality on the ground.

I have been particularly disappointed by South Africa’s decision to write to UN chief Ban Ki-moon communicating the country’s impending withdrawal from the court.

As a firm believer in the principle of territorial sovereignty, I would have no problem with a particular country calling for the reform of the ICC. Claims that the court has almost exclusively targeted Africans since its inception have existed since Moreno Ocampo was ICC chief prosecutor.

There were claims that the Argentine was biased against Africa. But what about now when we have an African iron lady, Gambian Fatou Bensouda (pictured), at the helm of the ICC? Born and raised in Africa, Bensouda should be in a better position to do justice to Africa, having served in the past as a legal advisor to Gambian President Yahya Jammeh. What is Africa still grumbling and agonizing about?

I particularly have a problem with the procedure countries intending to exit the ICC have followed or failed to follow. Take South Africa as an example. How on earth can you write to the UN secretary-general to communicate your exit before initiating the process domestically?

For the benefit of those who have not been closely following the matter, South Africa’s Foreign minister, Maite Nkoana-Mashabane, communicated to Ban Ki-moon her country’s executive decision to exit the ICC last week in what many analysts see as an ultra vires move. First, the constitution of South Africa is clear that binding international agreements may only become law in that country upon ratification by the National Assembly and National Council of Provinces.

It is thus unconstitutional for the government to unilaterally pull South Africa out of the ICC treaty without parliament’s involvement and approval. The government’s submission of a withdrawal notice to the UN is not only unprocedural but unconstitutional and contrary to the principles of administrative justice.

This, unfortunately, means that all other processes to follow shall be void. Hence, the promise by South Africa’s Minister of Justice and Correctional Services, Michael Masutha, this week that a bill proposing the repeal of the Implementation of the Rome Statute of the International Criminal Court Act of 2002 is being prepared is akin to shutting the stable door after the horse has bolted.

If parliament approves the bill upon its tabling it would amount to rubber-stamping. As if that was not enough, Masutha also announced that the speaker and chair of the National Assembly and National Council of Provinces, respectively, have been informed of the government’s decision to dump the ICC. This implies that the representation organs are mere recipients of decisions, orders and instructions from the government. What has happened in South Africa is a mockery of good governance. Tanzania should shun this kind of conduct if we hope to continue to be viewed favourably globally insofar as governance is concerned.

In the region, Tanzania is prone to bad influence by Burundi and Kenya. In Bujumbura, President Pierre Nkurunziza last week quickly accented to a bill seeking to pull Burundi out of the ICC following its passage by the country’s parliament. This means that Burundi will be out of the ICC a year from the day an official communication to this effect reaches the UN secretary-general.

What alarms me as far as Burundi’s decision is concerned is the growing lack of independence in the proceedings of African parliaments when handling bills tabled by governments.

It is worth noting that Burundi made the decision to quit the ICC after the court opened a preliminary investigation into human rights abuses, including the deaths of nearly 600 people, following Nkurunziza’s controversial decision to seek a third term in April 2015. At least 168 people have been killed in that country this year alone, according to sources within Burundi.

I join the ICC in asking Burundi and South Africa to reconsider their decisions, which will only serve to give African despots a freer hand with which to oppress their subjects.

With constitutions giving leaders and governments in Africa immense powers, the ICC is a crucial restraining tool that can go a long way in checking the excesses of all-powerful rulers on the continent.