By JOWIT SALUSEKI –
ZAMBIA held public hearings from March 27, this year, to get views from the citizens on the country’s membership to the International Criminal Court (ICC).
This was following a resolution made at the African Union (AU) Summit to urge member states to pull out from the International Court.
In view of this, President Edgar Lungu stated that Cabinet would seek the views of Zambians before the decision was made.
The ICC brings individuals to trial who commit large-scale political crimes ranging from genocide, war crimes and crimes against humanity.
Building on the United Nation’s special tribunals and on new legal precedents of universal jurisdiction, the ICC takes an important step towards global accountability for all, including political and military leaders.
The Rome Statute which established the court has been ratified by 123 countries, but the US is a notable absentee.
A number of important countries seem determined not to submit to the jurisdiction of the ICC. Some countries have not even signed the treaty and they include China, India, Pakistan, Indonesia and Turkey.
Egypt, Iran, Israel and Russia have, however, signed the deal but remain dubious and have not ratified.
The absence of the US in particular makes funding of the court more expensive for others.
Japan, Germany, France and Britain are among the largest contributors.
Since its establishment in 2002, the court has made good strides forward in fighting impunity and holding the perpetrators of the most serious crimes accountable.
The court, however, faces many difficult challenges, particularly in relation to the cooperation of states and its independence. The US, for instance, is still not a member of the ICC and the court has faced fierce US opposition.
The former George Bush administration refused to cooperate with the court and consistently hindered its work.
However, former US President Barack Obama’s administration made some greater efforts to engage with the court.
Commentators nonetheless alluded to the fact that even Obama’s approach then remained cautious, however, due to its concerns over possible charges against American troops and diplomats.
Since its inception, the court has also been criticized by international observers and African leaders for applying double standards.
They argue that it places undue focus on the African continent while neglecting human rights violations in western countries.
To date, formal ICC investigations have only been opened into the situations of African countries.
Cases brought before the ICC, includes investigations in the Democratic Republic of Congo, Côte d’Ivoire, Uganda, the Darfur region of Sudan, the Central African Republic, Kenya and Libya.
The court has no retrospective jurisdiction – it can only deal with crimes committed after 1 July 2002 when the Rome Statute came into force.
Additionally, the court has automatic jurisdiction only for crimes committed on the territory of a state which has ratified the treaty; or by a citizen of such a state; or when the United Nations Security Council refers a case to it.
The court’s first verdict, in March 2012, was against Thomas Lubanga, the leader of a militia in the Democratic Republic of Congo.
He was convicted of war crimes relating to the use of children in that country’s conflict and was sentenced to 14 years.
The highest profile person to be brought to the ICC is Ivory Coast’s former President Laurent Gbagbo, who was charged in 2011 with murder, rape and other forms of sexual violence, persecution and “other inhumane acts”.
Other notable cases included charges of crimes against humanity against Kenya’s President Uhuru Kenyatta, who was indicted in 2011 in connection with post-election ethnic violence in 2007-08, in which 1,200 people died.
The ICC dropped the charges against Mr Kenyatta in December 2014.
Among those wanted by the ICC are leaders of Uganda’s rebel movement, the Lord’s Resistance Army (LRA), which is active in northern Uganda, north-eastern DR Congo and South Sudan.
Its leader Joseph Kony is charged with crimes against humanity and war crimes, including abduction of thousands of children.
The court has an outstanding arrest warrant for Sudanese President Omar al-Bashir – the first against a serving head of state.
When Mr Bashir, who faces three counts of genocide, two counts of war crimes and five counts of crimes against humanity, attended a African Union summit in South Africa in June 2015, a South African court ordered that he be prevented from leaving the country while it decided whether he should be arrested under the ICC warrant.
The South African government allowed Mr Bashir to leave and in the fallout a judge angrily accused the government of ignoring the constitution. The government in turn threatened to leave the ICC.
A South African court did order that he be prevented from leaving the country, only for the government to override the order.
The African Union instructed members not to carry out the ICC arrest warrant against him while it conducts its own investigation.
The ICC has been criticised, particularly by the African Union, for its focus on Africa. In the court’s 11-year history it has only brought charges against black Africans.
The ICC denies any bias, pointing to the fact that some cases such as the LRA in Uganda were self-referred by the country affected and some were referred by the UN.
Fatou Bensouda, the chief prosecutor of the ICC, who is Gambian, has argued that the ICC is helping Africa by its prosecutions of criminals.
Frustrated with the alleged bias, South Africa, Burundi and The Gambia announced its intention to withdraw from the ICC evoking mixed responses from various quarters and opening up important questions regarding the future of the ICC, especially with regards the African continent.
The AU has been at the forefront of persuading its member nations to withdraw from the ICC on grounds of the latter’s alleged institutional bias against Africa and African leaders.
In January 2016, the AU decided to mandate its open-ended committee to the ICC for the purposes of developing a “comprehensive strategy” which included a withdrawal from the ICC. In pursuance of the same, three preconditions were stipulated to prevent a withdrawal which included a demand that serving heads of states including senior state officials should be granted immunity from prosecution.
Against this backdrop the Zambian Government embarked on a country –wide consultative process to engage stakeholders and get their views if the country should continue to be a member of the ICC.
Justice Minister Given Lubinda told Parliament that from the submissions received from a country –wide consultative process, 91.43 per cent of the petitioners were against   the idea of Zambia withdrawal from the ICC while only 8.57 per cent were of the view that the country should consider pulling out.
He said the results showed that Zambians wanted to continue to stand by the ideals and values for which the ICC was established to strengthen and uphold human rights.
“Mr Speaker, allow me to report to this Honorable House that the people of Zambia spoke very unequivocally through this consultative process… it is my rare duty and privilege to officially announce that Zambia shall continue to uphold her membership in the ICC,” he said.
Mr Lubinda said this in a ministerial statement when he updated the House and the nation at large on outcome of the recent consultative process on Zambia’s membership to the ICC.
At the 28thSummit of the Assembly of the Heads of State and Government of the African Union (AU) early this year, resolved on a non-binding recommendation that there should be a mass withdrawal of African countries from the ICC citing partiality of the Court.
President Lungu, not willing to arbitrarily commit Zambia to any position, chose instead to sound out the general public’s opinion via consultative process conducted across the country.
Mr Lubinda told the House that the result of the consultative process was well covered in the media and was already a matter of public knowledge.
This was the position that Zambia would present to the AU when the time for making such submission at the on-going Summit occasioning on from July 3- 4 in Ethiopia.
Mr Lubinda said the information received from the AU Commission was that the discussion on the ICC and the African Peer Review Mechanism (APRM) should not be agenda items for the summit, but for a later summit.
He said Zambia would work to strengthen its national judicial system to effectively fulfill its mandate to cooperate with ICC and prosecute international crimes to contribute to the global fight against impunity.
He said democracy was expensive and there was nothing sinister about Government consulting its citizens because of its open door policy of dialoguing with its citizens.
On the sidelines, Zambian DNA Spokesperson Spuki Mulemwa says the decision by the Lungu administration to engage stakeholders on whether the country should continue to be a member of the ICC is an indication that the Republic President is a true believer in democracy.