Africa and the Backlash Against International Courts 9781786992987, 9781786992970, 9781350218093, 9781786992994

Table of contents :
Front Cover
Half Title
About The Authors
Title Page
Copyright
Dedication
Contents
List of Illustrations
Abbreviations and Acronyms
Acknowledgements
Preface
Introduction
1 Introduction
2 Ideas
3 Interests
4 Definitions
5 Overview
6 Postscript
1: Africa and International Law After the Cold War
1 Introduction
2 Proliferation
3 Explanations
4 The Post-Cold War World
5 Conclusion
2: Africa and the International Criminal Court
1 Introduction
2 Critique
3 Backlash
4 Conclusion
3: Land in Southern Africa
1 Introduction
2 Extraversion
3 The Demise of the SADC Tribunal
4 Aftermath
5 Conclusion
4: Legality in West Africa
1 Introduction
2 Extraversion
3 Rights, Intervention and Legitimation
4 Court Transformation
5 Backlash
6 Conclusion
5: Regional Legacies in East Africa
1 Introduction
2 East African Integration
3 Backlash
4 Conclusion
Conclusion
Notes
Bibliography
Index

Citation preview

AFRICA AND THE BACKLASH AGAINST INTERNATIONAL COURTS

ABOUT THE AUTHORS

Peter Brett is a senior lecturer in international politics at Queen Mary University of London. He teaches the politics of international law and Africa’s international relations. His research focuses on the politics of rights and the judiciary, with a particular interest in Southern and West Africa. Line Engbo Gissel is an associate professor at Roskilde University. She teaches global governance and human rights. Her research focuses on the politics of transitional justice, the role of the International Criminal Court in East Africa, and the relationship between peace and justice.

AFRICA AND THE BACKLASH AGAINST INTERNATIONAL COURTS Peter Brett and Line Engbo Gissel

Africa and the Backlash Against International Courts was first published in 2020 by Zed Books Ltd, The Foundry, 17 Oval Way, London SE11 5RR, UK. www.zedbooks.net Copyright © Peter Brett and Line Engbo Gissel 2020 The right of Peter Brett and Line Engbo Gissel to be identified as the authors of this work has been asserted by them in accordance with the Copyright, Designs and Patents Act, 1988 Typeset in Plantin and Kievit by Swales & Willis Ltd, Exeter, Devon Index by Rohan Bolton Cover design by Steve Marsden Cover photo © Dieter Telemans / Panos Pictures Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of Zed Books Ltd. A catalogue record for this book is available from the British Library ISBN 978-1-78699-298-7 hb ISBN 978-1-78699-297-0 pb ISBN 978-1-78699-299-4 pdf ISBN 978-1-78699-300-7 epub ISBN 978-1-78699-301-4 mobi

To Myriam, and to Maya and Milan

CONTENTS

List of Illustrations | xi Abbreviations and Acronyms | xiii Acknowledgements | xvii Preface | xix Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 Introduction 1 2 Ideas 3 2.1 Contrasting the ICC and Regional Courts  3 2.2 Method 4 2.3 Sovereign Equality  6 2.4 International Society in African Society  7 2.5 The ICC and Self-Entrapment  9 3 Interests 11 4 Definitions 12 5 Overview 13 6 Postscript 15 1

Africa and International Law After the Cold War. . . . . . . . . . . . . . . . . . . . . 16 Introduction 16 Proliferation 17 Explanations 21 The Post-Cold War World  23 4.1 The Rule of Law Revival  24 4.2 The New Regionalism  29 5 Conclusion 32

1 2 3 4

2

Africa and the International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . 34 1 Introduction 34 2 Critique 36 2.1 New Alignments  37 2.2 Destabilisation and Interference in Peacemaking  38

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2.3 Targeting of Africa  40 2.4 The Role of the Security Council  42 2.5 The Violation of Sovereign Immunity  45 3 Backlash 47 3.1 Regionalising International Justice  51 3.2 Reform 52 4 Conclusion 53 3

Land in Southern Africa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 1 Introduction 56 2 Extraversion 58 3 The Demise of the SADC Tribunal  62 3.1 Historical Background  63 3.2 Campbell 64 3.3 Backlash 65 3.4 Legitimation 67 3.5 Land 70 4 Aftermath 77 5 Conclusion 83

4

Legality in West Africa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Introduction 84 Extraversion 85 Rights, Intervention and Legitimation  90 Court Transformation  93 Backlash 94 5.1 The Gambia  95 5.2 Non-Compliance 98 5.3 Legality 102 6 Conclusion 113

1 2 3 4 5

5

Regional Legacies in East Africa. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 1 Introduction 115 2 East African Integration  117 2.1 The Second EAC  119 2.2 Extraversion 122

Contents

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3 Backlash 124 3.1 Regime Security  127 3.2 Ugandan and Tanzanian Support  129 3.3 Legitimation 131 4 Conclusion 133 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Notes | 147 Bibliography | 162 Index | 210

ILLUSTRATIONS

Table 1.1 Africa’s International Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Figure 1.1 African States’ Ratification of Core UN Human Rights Treaties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

ABBREVIATIONS AND ACRONYMS

ACHPR ACP ACrHPR ACtHPR AFPRC ANC AU BIT BRICS CAR CCM CDP

African Commission on Human and Peoples’ Rights African, Caribbean and Pacific African Charter on Human and Peoples’ Rights African Court on Human and Peoples’ Rights Armed Forces Provisional Ruling Council [The Gambia] African National Congress [South Africa] African Union bilateral investment treaty Brazil, Russia, India, China and South Africa Central African Republic Chama Cha Mapinduzi [Tanzania] Congrès pour la Démocratie et le Progrès [Congress for Democracy and Progress, Burkina Faso] CEAO Communauté Économique de l’Afrique de l’Ouest [Economic Community of West Africa] CFU Commercial Farmers’ Union [Zimbabwe] COMESA Common Market for Eastern and Southern Africa DFID Department for International Development [United Kingdom] DRC Democratic Republic of the Congo EAC East African Community EACA East African Court of Appeal EACJ East African Court of Justice EAEU Eurasian Economic Union EALA East African Legislative Assembly EC European Commission ECCAS Economic Community of Central African States ECCJ ECOWAS Community Court of Justice ECHR European Convention on Human Rights ECJ European Court of Justice ECOMOG Economic Community of West African States Monitoring Group

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ECOWAS ECtHR EEC EFF EU ExAC FCO FDC FDI FIP FPI FTLR GATT GIZ GOZ ICC ICJ ICSID ICTR ICTY IGAD IGADD IMF ISDS ITLOS LGBT MDC MP NAFTA NARC NATO NCT NGO NIEO OAU ODM

Economic Community of West African States European Court of Human Rights European Economic Community Economic Freedom Fighters [South Africa] European Union Extraordinary African Chambers Foreign and Commonwealth Office [United Kingdom] Forum for Democratic Change [Uganda] foreign direct investment Finance and Investment Protocol [SADC] Front Populaire Ivoirien [Ivorian Popular Front] Fast-Track Land Reform [Zimbabwe] General Agreement on Tariffs and Trade German Society for International Cooperation Government of Zimbabwe International Criminal Court International Court of Justice International Centre for Settlement of Investment Disputes International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia Intergovernmental Authority on Development Intergovernmental Authority on Drought and Development International Monetary Fund investor–state dispute settlement International Tribunal for the Law of the Sea lesbian, gay, bisexual and transgender Movement for Democratic Change [Zimbabwe] Member of Parliament North American Free Trade Agreement National Rainbow Coalition [Kenya] North Atlantic Treaty Organization National Council for the Transition [Burkina Faso] non-governmental organisation New International Economic Order Organisation of African Unity Orange Democratic Movement [Kenya]

A bbreviations and Acronyms

OECD OHADA OHCHR OIC OPEC P3 PCA PDGG PTA RSP SADC SADCC SALC SCC SCSL SWAPO UDHR UK UN UNCLOS UNCTAD UNDP UNECA UNHRC US USAID WAEMU WTO ZANU-PF

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Organisation for Economic Co-operation and Development Organization for the Harmonization of African Business Law Office of the High Commissioner for Human Rights Organisation of Islamic Cooperation Organization of the Petroleum Exporting Countries ‘Permanent Three’ Permanent Court of Arbitration Protocol on Democracy and Good Governance Preferential Trade Area for Eastern and Southern Africa Régiment de Sécurité Présidentielle [Regiment for Presidential Security, Burkina Faso] Southern African Development Community Southern African Development Coordination Conference Southern African Litigation Centre Special Criminal Court [Central African Republic] Special Court for Sierra Leone South West African People’s Organisation Universal Declaration of Human Rights United Kingdom United Nations United Nations Convention on the Law of the Sea United Nations Conference on Trade and Development United Nations Development Programme United Nations Economic Commission for Africa United Nations Human Rights Council United States United States Agency for International Development West African Economic and Monetary Union World Trade Organization Zimbabwe African National Union – Patriotic Front

ACKNOWLEDGEMENTS

The authors would like to extend particular thanks to fellow participants in the ‘Africa and International Law’ stream at the 2016 African Studies Association UK conference. Adam Branch, Phil Clark and Sarah Nouwen provided especially helpful commentary on a number of the arguments developed in this book. Peter Brett would like to thank Eki Omorogbe, at the University of Leicester, and Prof. Hennie Strydom, at the University of Johannesburg, for co-organising a stimulating workshop, ‘The Crisis of International Criminal Law in Africa’, in November 2017. He is very grateful to the following for illuminating conversations on many of the topics discussed here: Noah Ajare, Joke Aliu, Yusuf Danmadani, Aboubakar Djibo Diakité, Matthieu Fau-Nougaret, Stanley Ibe, Dindam Killi, Lloyd Kuveya, Makanatsa Makonese, Jonathan McCully, Charles Mkandiriwe, Dominique Mystris, Cajetan Osisioma, Nicole de Silva and Micha Wiebusch. Asseghna Anselme Somda provided friendship and invaluable assistance. Line Engbo Gissel would like to thank iCourts, Copenhagen University, for the opportunity to present her work on the ICC, and she would like to thank its members for their thought-provoking comments. She is grateful to Jimmy Ogwal for help with contacting Ugandan officials. Her thinking about international courts in Africa benefited greatly from inspiring conversations with Adam Branch, Kerstin Bree Carlson, Arjun Chowdhury, Mikkel Jarle Christensen, Serena Cruz, Miriam Cullen, Ulf Engel, Sune Haugbølle, Alexa Stiller and Tom Young. Devapriyo Das made this book possible through his love and support. Thanks are also due to Ken Barlow and Kim Walker for their patience and guidance throughout the editorial process.

PREFACE

This writing of this book has been a joint effort. Each of us, however, has taken primary responsibility for particular chapters. Gissel is thus the lead author of Chapters 2 and 5, and Brett the lead author of Chapters 3 and 4. Chapter 1 builds on some of our earlier work together, but here is mainly the work of Gissel. The Introduction and Conclusion are, unsurprisingly, the most thoroughly co-authored parts of the book, but Brett produced the first drafts. Gissel’s fieldwork for Chapter 2 and part of Chapter 1 took place at the Rome Statute Review Conference in Kampala (Uganda) in May–June 2010 and in Nairobi (Kenya) and Kampala (Uganda) in April–May 2011. Interviews for Chapter 5 were conducted by phone. Continent-wide data on negotiations on the ICC and WTO treaties were collected online. Brett carried out the bulk of his initial fieldwork for Chapter 3 during Zimbabwe’s campaign against the Southern African Development Community Tribunal. In August–September 2011, he conducted interviews in Windhoek (Namibia), where the Tribunal is located, and in April–May 2012 he conducted similar interviews in Gauteng (South Africa) and Harare (Zimbabwe). This work was later supplemented during a visit to Namibia in July–August 2017 as part of a parallel project on judicial appointments. Fieldwork for Chapter 4 was all conducted in 2016 in Ouagadougou (Burkina Faso), in February and April–May, and Abuja (Nigeria), in July–August, where the ECOWAS Court is located. All other interviews were conducted in London or by phone.

INTRODUCTION

1 Introduction In 1976, there was only one international court with compulsory jurisdiction, but today there are 21 (Alter 2014a, 82–84). Some measure of backlash was perhaps inevitable. The last decade has seen states across the world seek to constrain and renounce international courts for a wide variety of reasons. The United Kingdom’s (UK) refusal to implement a European Court of Human Rights (ECtHR) judgment has led its cabinet to debate denouncing the European Convention on Human Rights (ECHR), and has seen it successfully coordinate states’ efforts to give national institutions greater say over human rights in the Council of Europe (Bates 2015; Madsen 2018). Much parliamentary support for Brexit has been justified by referencing a need to escape the jurisdiction of the European Court of Justice (ECJ) (e.g. Ringeisen-Biardeaud 2017). Russia now allows its Constitutional Court to overturn ECtHR decisions (Chaeva 2016). The Eurasian Economic Union (EAEU), which it dominates, has a new Court of Justice with less powers than its predecessor (Madsen, Cebulak and Wiebusch 2018, 197). President Duterte has withdrawn the Philippines from the International Criminal Court (ICC), and threatens to arrest any of its prosecutors who come to his country (Gutierrez 2019; Reuters 2018). Venezuela’s withdrawal from the Inter-American Human Rights System in 2013 inspired similar kinds of resistance by sympathetic states elsewhere in Latin America (Sandholtz, Bei and Caldwell 2018, 159–164). President Trump, meanwhile, has blocked all new appointments to the World Trade Organization (WTO) Appellate Body, part of his administration’s broader shift towards bilateralism in foreign policy (Patrick 2019). In Africa, most attention has focused on the recent backlash against the ICC. Burundi has become the first country to withdraw, and South

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Africa and the Gambia (under former President Jammeh at least) have declared similar intentions. Kenya, for its part, has attempted to coordinate a mass exit, and in 2017 helped persuade the African Union (AU) Summit to adopt an ‘ICC Withdrawal Strategy’ drafted by 28 states (including 15 non-states parties). Regional and subregional courts have, however, also come under fire. In 2012, the Southern African Development Community (SADC) Tribunal became the first ever international court to have its jurisdiction curtailed as a direct result of one its rulings.1 A ruling it made in favour of expropriated white farmers in Zimbabwe saw it lose its human rights jurisdiction (see Chapter 3, this volume). Elsewhere, Rwanda and Tanzania have stopped individuals and non-governmental organisations (NGOs) from approaching the African Court on Human and Peoples’ Rights (ACtHPR), and the East African Community (EAC) has successfully constrained the East African Court of Justice (EACJ) (see Chapter 5, this volume). The study of this phenomenon is still in its infancy (Alter, Gathii and Helfer 2016; Madsen, Cebulak and Wiebusch 2018; Sandholtz, Bei and Caldwell 2018). To date, however, only scholars of backlash against the ICC have engaged with the Africanist international relations literature (e.g. Branch 2019; Clark 2019; Murithi 2019; Mutua 2016). In this book, we will use this literature to capture some of the many distinctive features of Africa’s relationship with all international courts. The debates surrounding the ICC illuminate Africa’s understanding of itself and its place in the world, but the scholarly focus on this particular court has nonetheless become staggeringly disproportionate. As of August 2018, it had been mentioned in 14,100 academic articles for every conviction obtained ((in)famously, all three of those convicted were Africans). Africa’s busiest human rights court, by contrast – the Economic Community of West African States (ECOWAS) Community Court of Justice (ECCJ) – has received 80 times less coverage.2 Our first objective is therefore to help redress this imbalance. Our second objective is, of course, to improve upon existing explanations. Much of the journalistic and policy literature describes backlash simply in terms of authoritarian regimes seeking to ‘claw back’ their lost sovereignty (e.g. Gumede 2018). The academic literature, meanwhile, either ignores or systematically downplays the justifications that African states give for their conduct – assuming that these simply serve to conceal

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real interests or are of no consequence.3 Both literatures tend to depict African states as being peculiarly attached to their formal legal independence, and to understand backlash as a consequence of ‘expansionist decision-making’ by judges (e.g. Gathii 2018, 332; for a useful critique of the latter assumption, see Helfer and Alter 2013). It is a central contention of this book, however, that African states have not been able to coordinate backlash when their sovereignty or interests (traditionally understood) have come under threat. Explanations of this type have two main weaknesses. They fail, first, to explain why the ICC, in particular, has proved so controversial, compared to other international courts with equal or higher sovereignty costs (see generally Hafner-Burton, Mansfield and Pevehouse 2015). And they provide no account of why African states created so many international courts only to then turn against them. The rest of this introduction examines each flaw in more detail before outlining our response. 2 Ideas 2.1 Contrasting the ICC and Regional Courts The first difficulty with stressing sovereignty or authoritarian instincts is that this leaves us unable to explain why backlash against the ICC has not translated into backlash against other international courts. Some regional courts, such as the ECCJ, have in fact escaped sanction despite judicial activism and numerous encroachments on sovereignty. Backlash against the EACJ, meanwhile, has been almost entirely unrelated to the activism of its bench. This is not to say, of course, that such courts have elicited compliance. And nor is it to say that regional courts have remained immune to political threat. But as we will see in Chapters 3–5 of this volume, backlash has generally emerged when it could be justified in terms of region-specific norms or local legitimation strategies. It has not been the product of any ubiquitous attachment to sovereignty.4 This account contrasts with that found in the best account to date of backlash against regional courts. Alter, Gathii and Helfer (2016) compare Zimbabwe’s successful backlash against the SADC Tribunal in 2012 with the Gambia’s failed backlash against the ECCJ in 2009, and Kenya’s moderately successful attempt to constrain the EACJ in 2006–2007. They explain these states’ different levels of success by pointing to different levels of mobilisation in defence of courts by civil society and the

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staff of regional organisations. Where mobilisation was strong, as in West Africa, the ECCJ was saved and strengthened. Where mobilisation was weak, as in Southern Africa, the SADC Tribunal was first suspended and then neutered. Alter, Gathii and Helfer (2016) thus go out of their way to deny precisely what we affirm: that states’ justifications, and the identity of those making them, mattered. For us, it was decisive that Zimbabwe was able to rationalise its interests in terms of an ever-more powerful region-specific ‘liberation narrative’ about land in Southern Africa. And we can find no way to downplay the importance of the Gambia’s status as local pariah for its failure to persuade other West African states to constrain the ECCJ. Backlash against the ICC, by contrast, has been successfully justified by pointing towards incompatibilities with a more general principle governing international relations: the principle of sovereign equality. Only when this principle was violated could individual states’ (more or less self-interested) hostilities towards the Court be legitimated at the PanAfrican level. As Kurt Mills (2012, 441) has noted, much of the AU’s critique has thus had ‘little to do with sovereignty per se, but rather with the conflict over ... who makes the rules’. In fact, as Reinold (2012, 1078) argues, the AU’s challenge to the ICC is ‘calling into question the global separation of powers as such’. The ICC, in short, has encountered backlash not because it violates the sovereignty of African states, but rather because its investigations focus on weak states and erode their officials’ state immunity. Its investigations, meanwhile, can be ordered by Great Powers who are not themselves subject to its authority: a vivid reminder of that unequal distribution of privileges in the international system that decolonisation was meant to overcome (see below). 2.2 Method We will make these points using interpretive methods common to various schools of international relations theory (see Lynch 2015). Our argument about the power of the sovereign equality norm draws particularly on the work of Ali Mazrui and Thomas Kwasi Tieku. Methodologically, as Seifudein Adem (2011) has argued, Mazrui in particular favoured a ‘classical’ interpretive approach close to that of the ‘English School’. But both these authors could just as well be accommodated within postcolonial theory, even if this scholarship

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has yet to pay them systematic attention.5 Much English School and postcolonial writing has shared our stress on the linguistic and communitarian contexts in which leaders have to operate. This scholarship tends to distance itself from ‘rationalist’ international relations. It criticises all those realisms, liberalisms and (even) constructivisms that identify leaders’ motivations by reference to their interests and fail to analyse their language and identity with sufficient seriousness (e.g. Chatterjee 2014, 9–10; Jackson 2000, 53–55).6 We, however, are agnostic about leaders’ motivations. We do not deny that some can (self-)deceive so systematically that the words they use and identities they profess tell us little about their motivations (compare Bevir 1999, 28–30 with Mearsheimer 2011, 28–29). The key point, though, is Quentin Skinner’s (2002, 149–150): even these most cynical leaders must find ‘some existing terms [that] can somehow be applied as apt descriptions of their behaviour’. Thereafter, others may try to hold them to the standards they have set for themselves. When this happens, both ideologues and cynics will find themselves committed to ‘behaving in such a way that their actions remain compatible with the claim that their professed principles genuinely motivated them’. This theory of legitimation, which has become mainstream in the history of ideas, is close but not identical to that of the ‘norm spiral’ model developed by rationalist constructivists (Risse, Ropp and Sikkink 1999; 2013). These authors also highlight the importance of language and identity, but unlike Skinner they assume that all leaders choose justifications for their conduct on self-interested grounds. Like Skinner, however, they argue that these justifications nonetheless help to explain behaviour because they can be used by leaders’ critics to shame states and identify double standards: a phenomenon that constructivists label ‘self-entrapment’ (Risse and Sikkink 1999, 23).7 In practical terms, this Skinnerian approach saves us from having to make the same mistake as some of the ICC’s more vocal critics: (inadvertently) denying the possibility of banal or grubby motives behind backlash. In cases such as the Burundian exit from the ICC, leaders have clearly been motivated by little more than self-preservation (for useful comment, see the conclusion of Krever 2016). But our approach also guards against an opposite error more common in rationalist international relations: the assumption that leaders’ Pan-Africanist

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arguments have no power or popular resonance simply because of the speaker’s unpopularity (e.g. Sandholtz, Bei and Caldwell 2018, 169). The AU has not simply functioned as a ‘Trade Union of Tyrants’, to borrow a famous phrase from former Tanzanian President Julius Nyerere. It is perfectly logical, and indeed very common, to view one’s own leader as a criminal deserving punishment while not also believing that African leaders in general should be more vulnerable to prosecution than those protected by allies on the Security Council.8 2.3 Sovereign Equality Sovereign equality might appear to be an oxymoron. Surely, we can only call a state ‘sovereign’ when it is treated equally under international law (e.g. Baker 1923)? This, however, is to ignore the presence of special responsibilities in the international system. Since at least the Congress of Vienna in 1815, which contained revolutionary France, ‘Great Powers’ have arrogated themselves hegemonic privileges in the name of stability and conflict management (Simpson 2004). And throughout the rest of the nineteenth century, some international lawyers argued with increasing conviction that such privileges were unjust (Hjorth 2011, 2593). Since then, in Barry Buzan’s (2014, 113) words, the two positions have remained ‘interlinked sides in an ongoing debate about the moral construction of international order’ [emphasis added]. Today, for example, the five permanent members of the UN Security Council possess a unique right to sanction the use of force, and to refer situations to the ICC for investigation, while the weighted voting rights and appointment conventions of the International Monetary Fund (IMF) and the World Bank remain skewed in favour of Euro-America (Cogan 2009). African states have been among the fiercest Third World critics of such arrangements, which they hold responsible for some of the most egregious uses of international institutions for political ends.9 Thabo Mbeki once described this as ‘a global system of apartheid’ (Adebajo 2009, 3). During decolonisation, sovereign equality became the dominant norm of African order. It appeared as the first principle in the United Nations (UN) Charter (1945), a document that new African states routinely referenced in place of the Universal Declaration of Human Rights (UDHR).10 ‘The sovereign equality of all member states’ was also the first principle of the 1963 Organisation of African Unity (OAU) Charter.

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(The Constitutive Act of the new AU, signed in 2000, added the words ‘and interdependence’, but indications that this marked a significant departure soon proved misleading.)11 For new states, independence was as much if not more about equal participation in the management of international affairs as it was about control and governance of national territory. Contrary to the argument of Hedley Bull (1971), by then the pre-eminent ‘English School’ scholar of international relations, they thus defended sovereign equality on the grounds of justice, not order.12 The most forceful advocate of this view at the time was Ali Mazrui, a man that Bull (in Adem 2011, 506) judged ‘the most penetrating and discriminating expositor of the ideology of the Third World’. Rightly, Mazrui insisted upon the political psychology of decolonisation.13 African states’ permanent quest for a seat at the top table was ultimately motivated by the gross humiliation of being the last major world region adjudged fit for self-government, and of being excluded from the post-war negotiations that distributed the new international order’s unequal privileges.14 As Mazrui wrote in his 1964 Prize Award essay for International Organization, a ‘cult of participation of world affairs’ thus became an obvious feature of African international relations from their very inception (Mazrui 1964, 499). New states, he wrote later, became ‘fanatically possessive’ of the trappings of statehood (Mazrui 1981, 63). ‘In their case’, indeed, ‘the very process of attaining independence’ might even ‘be reduced to a single catch phrase – “from foreign rule to foreign relations”’ (Mazrui 1964, 499). As Thomas Kwasi Tieku (2012) has recently shown, finally, this psychology had a whole range of very practical effects that rationalist international relations struggles to account for. In the early days of the OAU, even the public airing of disagreements was taboo, let alone more traditional manifestations of contradictory interests such as declaring war (Tieku 2012, 42–48). Nothing could be done that called into question the status of African states as legitimate members of international society. Among states, this amounted to a ‘collectivist worldview’.15 2.4 International Society in African Society Over the last three decades, it has become increasingly common to argue that analyses such as Mazrui’s are outdated. ‘International society’, in this view, can no longer be restricted to states (e.g. Wilson 2009, 182).

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Human rights organisations, businesses and other groups now also participate in the management of world affairs. This observation, while obviously correct, is, however, often married with an unwarranted assumption: that these newly included groups will share none of the assumptions or worldviews of the international society they have joined (e.g. Alter 2014a, 135–137). Even Africa’s human rights organisations do not, however, reject states’ justifications in toto. These organisations, as a whole, are neither motivated simply by ‘altruism’ nor by an internalised Western liberalism (contrast Finnemore and Sikkink 1998, 898; Hearn 2007). Some, of course, are simply fronts for political interests or vehicles for distributing patronage. But those that are not must reconcile locally appropriated liberalisms with more powerful sovereign equality norms (for patronage, see Chabal and Daloz 1999, 22; for appropriation, see Pommerolle 2006, 84–86). In Namibia, for example, Sabina Höhn (2010) has shown how civil society actors generally refrained from endorsing allegations that the president had committed ICC crimes, while perhaps the country’s best-known NGO alienated itself from other government critics by supporting a submission to the ICC (for other Southern African examples, see Solway 2009; Tendi 2010, 173–202). Elsewhere, again and again, organisations that originally supported the establishment of the Court in The Hague have struggled to justify Security Council involvement or the exclusive focus on African crimes (e.g. Institute for Security Studies 2009, 2; Pan African Lawyers Union 2013, paragraph 21). The broader cultural purchase of ‘from foreign rule to foreign relations’ becomes most obvious, however, when we turn our gaze to the world leisure economy. In soccer and music, in particular, Africans have achieved global superstardom. Stars have embodied international society ideals for even those who see their own leaders as falling short of these standards. Footballers such as Emmanuel Adebayor and Didier Drogba have been invested with quasi-diplomatic status, and political leaders have sought to legitimate themselves by association. George Weah in Liberia has even become president.16 Even minor sports are characterised by Mazrui’s ‘cult of participation in world affairs’.17 Musicians, meanwhile, have also incarnated – and have been invested with – the ideals of equal statehood. In the 1970s, Salif Keita – Mali’s best-selling artist of all time, and sometime candidate for national office – performed with a group named Les Ambassadeurs Internationaux [The International

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Ambassadors] (see Skinner 2012, 525–528). In neighbouring Senegal, Youssou N’Dour, by some counts the best-selling of all African musicians, became a special presidential advisor charged with promoting Senegal abroad after having been barred from running for president himself (Kelly 2012, 129, n. 21). Today, he campaigns for democratic reform of the UN. Alpha Blondy, Côte d’Ivoire’s best-selling artist, has long used his music to decry Western-orchestrated killings of African leaders, a symbol of Africa’s ongoing humiliation as the problem child of the Family of Nations. In 2016, he travelled to The Hague seeking meetings with ICC staff, and called on President Ouattara – whose election victory he had endorsed – to withdraw his referral of deposed President Laurent Gbagbo (cf. Agence France-Presse 2017; Daddieh 2016, 118; Kodjo-Grandvaux 2015). 2.5 The ICC and Self-Entrapment This popular resonance of sovereign equality has produced ‘selfentrapment’: it has led African leaders’ legitimation rhetoric to be used against them. Since the beginnings of the ICC, various African leaders have instrumentalised the Court by using it to discredit their domestic political opponents. Sacrificing sovereignty in this way did not prove controversial in African nationalist circles since sovereign equality norms were not violated. It also appeared as if such instrumental uses might inadvertently build the Court’s power over the long term, given the tacit acknowledgement of the ICC’s authority that they entailed (see generally Sikor and Lund 2009; see also Chapter 4, this volume). As we will see in Chapter 2 in this volume, however, all this began to change in the wake of the 2005 Security Council decision to order the investigation of serious international crimes in Darfur and the 2008 indictment of Sudanese President Omar al-Bashir. Ever since al-Bashir’s indictment, Pan-African voices have begun pointing out incompatibilities between ICC membership and the sovereign equality principle enshrined in the AU’s Constitutive Act. Leaders such as former South African President Thabo Mbeki have given institutional platforms to intellectuals such as Mahmood Mamdani, who have acted as ‘carriers’ for these ideas (for ‘carriers’, see Berman 1998, 25–26). Like others Mbeki and Mamdani (2014) have, on occasion, framed their position in pragmatic terms, arguing that international criminal trials undermine peace agreements. But Mamdani in particular – who has advised the AU on various

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Sudanese questions – has also advanced a more general and theoretical case. His first interventions on the ICC excoriated ‘the Security Council, whose permanent members are the great powers’. The al-Bashir indictment, he wrote, reflected the emergence of a broader ‘humanitarian order’ that was undoing the achievements of post-war decolonisation. The world was thus ‘once again a bifurcated system, whereby state sovereignty obtains in large parts of the world but is suspended in more and more countries in Africa and the Middle East’ (Mamdani 2009, 274). This critique was not, it should be noted, directed against international law or international courts in general. Mamdani has sought primarily to hold African states to their sovereign equality commitments. The regional courts examined in this book have been largely immune from such attacks. To be clear, such views are not restricted to nationalist elites (contrast Risse and Ropp 2013, 15–21). President Ouattara’s attempt to use the Court against Laurent Gbagbo has illustrated how the sovereign equality norm can be mobilised against incumbents. In 2011, Gbagbo was, of course, a victim of French ‘regime change’, sanctioned by Security Council mechanisms that fragrantly violate sovereign equality norms. The anthropologist Mike McGovern has described how this caused popular disquiet elsewhere in Africa, even among those who would have been opposed to Gbagbo under any other circumstances. The critique of Gbagbo’s indictment, McGovern (2012) writes: Most certainly does not just emanate from sycophants and apologists of African autocrats. In this regard, it is telling that while Laurent Gbagbo has many partisan supporters from his political party, those who criticize his ICC indictment go beyond this group to include a far broader pool of francophone intellectuals. Many francophone Africans talk about Gbagbo as a modern-day Lumumba, a resistance hero who has been punished for speaking truth to neo-colonial power. Even those who may feel more ambivalent about Gbagbo, like Cameroonian journalist Henriette Ekwe, note: But the way [Gbagbo] and his wife were treated [as they were dragged from the rubble of the Presidential Palace], those are images that nevertheless touch Africans a little, and that make one think that Pan-Africanism is more necessary than ever: a real unity in the African Union. Meanwhile, the African Union seems to be under instructions, and to have to do what the West wants. [emphasis in original]

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McGovern (2012) concludes that while he personally ‘do[es] not consider Gbagbo to be a hero’, he nonetheless ‘take[s] the criticisms of the ICC … as significant social and political facts in themselves’. We take a similar position. 3 Interests So far in this Introduction, we have addressed one problem with explanations for backlash that stress sovereignty and national interests: their failure to explain obvious contrasts between attitudes towards the ICC and other international courts. In this section, we highlight another problem with such explanations: their failure to explain why sovereignty-preserving states would ever create so many international courts in the first place. Part of the answer here is that weak states who depend on international recognition for their survival often participate in institutions so that their status can be ‘continuously reinforced’ through ‘performance’ (Bachmann and Sidaway 2010, 4). Even sacrificing formal sovereignty can thus constitute a ‘discursive act’ that helps shore-up fragile ‘juridical statehood’ (Gammage 2017, 195–196; see also famously Jackson and Rosberg 1982).18 This, however, cannot explain why creating international courts specifically became such a favoured performance in the early 1990s. In Chapter 1 in this volume, we provide a full answer to this question, drawing on JeanFrançois Bayart’s well-known concept of ‘extraversion’. In brief, we argue that ruling regimes now created international images of themselves as rule of law states in order to pre-empt new donor pressures and capture new resources. A careful look at the negotiations surrounding the ICC’s Rome Statute reveals that demands for a more equal international order did not simply disappear from African states’ public pronouncements, yet they were now couched in an ‘international rule of law’ language much more aligned with liberal orthodoxy than the rhetoric of previous decades. Since the 1990s, however, the scope for overt backlash has broadened thanks to geopolitical shifts. A series of only partially related developments have combined to grant African states increased (formal) autonomy from Western policy agendas: the rise of China and other emerging donors, Western financial weakness post-2008, dramatic discoveries of oil on the Gulf of Guinea and elsewhere, and more permissive climates for some forms of human rights scepticism enabled by the so-called ‘War on Terror’ (for an overview, see Young 2015, 11–13).

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This focus on interests and material factors may sound incompatible with the interpretive method outlined earlier. Bayart himself, however, was no simple materialist, and worked hard to show how a distinctive ‘moral economy’ emerged from the peculiar constraints on African state-building (e.g. Bayart 2000, 249–254). Our argument should be distinguished, moreover, from crude uses of arguments such as Bayart’s that leave no room for legitimation and its effects. One such use is the theory of ‘regime-boosting regionalism’ developed by scholars such as Richard Gibb (2009) and Fredrik Söderbaum (2004). On this view, regional institutions (including regional courts) have been created primarily as ‘means for resource capture and international patronage’ rather than to fulfil their ostensible objectives (Söderbaum 2007, 209). African regionalism thus ‘becomes the comestic to mask the neopatrimonial state’ (Gammage 2017, 195). We agree with this as a general characterisation of certain periods in the history of African international relations. Where we disagree is with the conclusion that institutions thus created must then go on to serve ruling regimes and their interests. For Gibb (2009, 717), for example, African regional integration is always state-led and can only ever ‘be as strong as … its constituent parts want it to be’. As Guilia Piccolino (2016, 19) points out, however, regional institutions have in fact often evolved to fulfil different functions (see also Hartmann 2016). Chapter 4 in this volume provides an example of this. It shows how West African states made cynical use of new democratic governance language to legitimate efforts to protect themselves from ‘bottom-up coups’. But as in Skinner’s account of normative change, West African lawyers were later able to use these legitimations to transform their regional court and strengthen the norms governing term limits. 4 Definitions Some brief comment on definitions is now necessary. The word ‘backlash’ is vague and sensationalist. To make matters worse, all existing accounts propose slightly different definitions of it.19 Our own understanding has two components. Backlash, first of all, will be defined in a restrictive sense: as an attempt by a state or states to restructure, withdraw from or coordinate non-compliance with an international court.20 Mere criticism of and noncompliance with particular judgments is a standard feature of all legal systems and does not count. Attempted backlash, second, must ‘aim to curtail a

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court’s authority’ (Sandholtz, Bei and Caldwell 2018, 159).21 It must overtly reject some feature or features of the court system as a whole. Attempted restructurings that restrict access or narrow jurisdiction thus fall into this category (Sandholtz, Bei and Caldwell 2018, 160). Like other authors, we use the term resistance to capture all ‘pushing back within the bounds of the system’ that does not explicitly challenge a court’s fundamental structure or legitimacy (Madsen, Cebulak and Wiebusch 2018, 202).22 Examples of resistance include criticisms of, or refusals to operate with, international courts in specific judgments, as well as ‘general criticism[s] of a court or its jurisprudence’ (Sandholtz, Bei and Caldwell 2018, 160). One important implication of this understanding is that states who reject a court’s authority while overtly accepting it are engaged in mere resistance, not backlash.23 As described in Chapter 4 in this volume, for example, West African states in particular have often resisted the ECCJ by systematically refusing to comply with judgments even while paying lip service to the system and its legitimacy. This is not to say, of course, that all non-compliance is resistance. It can reflect limited state capacity rather than attitudes towards law and courts.24 As Courtney Hillebrecht (2013) has written, no executive anywhere ‘can single-handedly comply with … rulings … instead, the most successful cases of compliance require compliance coalitions comprised of executives, legislators and judiciaries’. Such coalitions are, moreover, inherently unlikely to form where government is already unresponsive to national courts (as in many African regional systems). Superior domestic courts, meanwhile, may refuse to give effect to international court judgments simply because of the ‘stickiness’ of sincerely held but outdated views common among an older generation of senior judges, unaccustomed to a ‘new terrain of international law’ where their authority is contested (Alter 2014a, 66; Huneeus 2010, 116). Nonetheless, empirical investigation can distinguish behaviour such as this from the deliberate non-implementation of judgments that owes nothing to ignorance or incapacity (see Chapters 3–5, this volume; cf. Madsen, Cebulak and Wiebusch 2018, 208–209). 5 Overview The rest of this book is organised as follows. Chapter 1 focuses on the immediate post-Cold War period and describes how Africa came to have more international courts than any other continent. It shows how

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embattled ruling regimes created international legal institutions in order to signal adherence to new donor orthodoxies, while simultaneously using ‘international rule of law’ language to repackage an older form of advocacy for sovereign equality. Chapter 2 analyses the one institution where these more ambitious aspirations for world order have been central to explaining backlash: the ICC. It shows how African states could successfully legitimate critique of the Court thanks to the power of ‘foreign rule to foreign relations’ language, and it argues that they could do so thanks to flagrant (formal) inequalities in the international system that are embedded in the ICC’s constitution. In the second half of this book, we contrast backlash against the ICC with that against other international courts. Chapter 3 focuses on Southern Africa. It shows how backlash against the new SADC Tribunal was not triggered by its threat to formal legal sovereignty. Coordinated opposition emerged, rather, only after judges had undermined ideologies of land that were central to legitimate statehood in the region. It was ultimately the power of these local norms that allowed Zimbabwe to persuade other SADC states to remove the Tribunal’s human rights jurisdiction. Chapter 4 deals with West Africa, where backlash has been hardest to coordinate. Here, the biggest problem facing the ECCJ, in particular, has been resistance at the individual state level. This, we argue, is due to the unusual stress that the region’s semi-authoritarian states have placed on legality. This has made open confrontation with international courts difficult to justify, while ensuring that those ECCJ rulings challenging leaders’ claims to legal authority have come closest to precipitating full-blown backlash. Chapter 5, finally, focuses on Kenya’s troubled relationship with the EACJ. In this region, attempts to coordinate backlash have been somewhat more successful than those directed against the ECCJ (even if less so than Zimbabwe’s campaign against the SADC Tribunal). Here, formal legal sovereignty has in fact been most central to the justification of backlash. But once again, as we seek to demonstrate, the relative success of these arguments can only be understood in terms of specifically East African regional legacies. In the Conclusion, we first compare our arguments with those made about backlash in other world regions, and then situate recent African opposition to international courts within a longer history of African attitudes towards international law more generally. We end the book

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by showing how profound recent shifts in global economic governance now impose severe constraints on more revolutionary programmes for international legal change, such as those characteristic of some earlier periods in this history. Today’s campaign for sovereign equality at the ICC should not, in short, be mistaken for an incipient revolt against the international legal order as a whole. 6 Postscript In February 2020, whilst we were correcting the proofs for this book, Sudan’s new power-sharing government made headlines around the world by signalling that it would allow the ICC to try Omar al-Bashir. He had been deposed by a military coup in April 2019 following months of protest against his rule. Whilst the situation remains highly uncertain, these events appear on first inspection to support our argument about ‘self-entrapment’. As in Côte d’Ivoire, a new regime has seemingly sought to use the ICC for its own purposes. Executing the arrest warrant against al-Bashir would satisfy a central demand of some rebel groups and protestors. Perhaps more importantly, however, it could ease the regime’s international isolation. The new authorities appear particularly anxious about Sudan’s continued listing by the US as a state-sponsor of terror. They had even discussed this with Israeli Prime Minister Benjamin Netanyahu a week before the al-Bashir announcement (the first ever official meeting between the two countries’ leaders). Early analyses of the Sudanese promise to execute the arrest warrant have seen it as reflecting a desperation for normalised relations with the West (Africa Insiders 2020). Unlike in Côte d’Ivoire, however, the new Sudanese government has seemingly factored the African backlash into its calculations from the outset. There has been no question of following Alassane Ouattara’s lead and sending al-Bashir directly to the ICC without further negotiation. As The Economist (2020, 2) puts it, the transitional authorities are ‘sensitive’ not only to ‘controversy about the ICC’s role in Africa’ but also to the ‘national humiliation some Sudanese would feel if Mr. Bashir was sent to the Hague’. At the time of writing, therefore, some form of hybrid process – perhaps with ICC involvement, but located in Sudan itself – appears the most likely outcome. Once again, it seems, African leaders’ own critiques of the Court have helped make it less attractive as a weapon for use against their political opponents.

1

| AFRICA AND INTERNATIONAL LAW AFTER THE COLD WAR

1 Introduction Today’s African backlash against international courts must be understood against the background of the decade and a half after the Cold War. In the 1990s and early 2000s, African countries moved to law. They busily established regional and subregional international courts and actively supported the creation of new global courts. Today, there are 16 global, regional and subregional courts operative in the continent, and by this measure Africa is the most judicialised world region. At the same time, however, governments rarely use these courts, never promote them, and often do not comply with their judgments. As we shall see in the remainder of the book, they may even seek to undermine their authority. Such practices make international court creation a puzzle: If they do not want these courts, why did African governments ever set them up? This chapter argues that court creation in the 1990s and early 2000s reflects two distinct responses to the 1990s ‘rule of law revival’. First, African states deployed extraverted strategies when attaching international courts to subregional organisations they created or revamped. They transferred sovereignty to new courts designed to reflect contemporary global ideas about judicial authority. Second, African states acted differently when building the International Criminal Court (ICC). The negotiations establishing this institution saw African states combine extraverted strategies with efforts to appropriate an ascendant ‘international rule of law’ discourse in the service of a broader vision for international order. These were neo-liberal ideas originally devised in the 1970s to protect the global economy from Third World activism, but now redeployed as a means for demanding sovereign equality. The ICC could now be framed as a way of constraining the privileges and discretion of the Great Powers.

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This argument is made in three parts. The first section describes the proliferation in Africa of international courts with new design features. The second section introduces standard explanations for court creation and outlines our alternative. The final section unpacks this argument by describing the context of the 1990s rule of law revival and the response to it by African states. Since subregional courts are analysed in Chapters 3–5 in this volume, the focus will be on the ICC, the World Trade Organization (WTO) Appellate Body and the African Court on Human and Peoples’ Rights (ACtHPR). 2 Proliferation African countries have created more international courts than any other regional grouping and they are all subject to at least one international court.1 Since the end of the Cold War, African countries have created eight permanent international courts and four criminal tribunals. By comparison, Europe has six international courts and Latin America has five, while Asia and the Middle East have set up three international courts (Alter 2014a; Romano 2014). Most of the world’s international courts were established after the Cold War ended, and this includes all the operative international courts in Africa. These courts are often the judicial arm of Africa’s regional economic communities and are created by their founding charters or additional protocols. The ACtHPR is the only court with a continental scope. The International Criminal Tribunals in Rwanda and Sierra Leone and the internationalised criminal chambers in the Central African Republic (CAR) and Senegal differ from regional and subregional courts. They were established on a temporary basis to deal with specific sets of atrocities and derive (in part) from global political authority. The ad hoc Tribunal for Rwanda was established by decree by the United Nations (UN) Security Council, and the hybrid Tribunal in Sierra Leone came into existence through an agreement between Sierra Leone and the UN Secretary-General, while the Extraordinary African Chambers (ExAC) in Dakar were created by the African Union (AU), Senegal and Chad.2 The CAR’s newly established Special Criminal Court (SCC) was initiated by the UN but formally derives from national legislation.3 The design of Africa’s various international courts reflects new and global ideas about judicial authority. They often have compulsory

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jurisdiction and are thus independent of state consent beyond the initial treaty ratification (Romano 2009). By contrast, older bodies such as the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS) require the explicit consent of those states party to the case. Another new feature is the access non-state actors enjoy. Citizens, non-governmental organisations (NGOs) and businesses can litigate cases in many subregional courts. If their government has ratified an additional protocol, they can even take their human rights complaints to the ACtHPR. Karen Alter (2014a, 81) captures these changes in jurisdiction and access by distinguishing between ‘old-style’ and more common ‘new-style’ courts. The latter are particularly interesting because they limit states’ ability to control courts. As described in subsequent chapters, however, this independence has been contested, resisted and challenged. Any discussion of Africa’s international courts must also include global courts with jurisdiction in Africa.4 Such courts have a relatively large coverage in the continent, as compared with Asia, the Middle East and the Pacific. All African states are subject to the ICJ, while 47 African states (or 87 per cent) are parties to the ITLOS, 44 (82 per cent) are subject to the WTO’s dispute resolution body and 33 (61 per cent) are bound by the ICC Treaty.5 By comparison, 76 per cent of states in Asia, the Middle East and the Pacific are parties to the ITLOS, while 73 per cent of them are bound by the WTO Appellate Body and 35 per cent are members of the ICC.6 The African support for the ITLOS and the ICC is notable for the rapidity with which states committed to these new courts: more than half of the African states parties to the United Nations Convention on the Law of the Sea (UNCLOS) ratified it during the first decade (1982–1991), while almost two-thirds of African ICC members (21 states) joined the regime within the first five years (1998–2002) of its existence. These early commitments helped to build a momentum for court creation as the treaties would only enter into force once ratified by 60 states. Asian, Pacific and Middle Eastern states preferred to join the ITLOS in its second decade, but two-thirds of these regions’ 18 ICC members ratified the ICC Statute during or before 2002.7 Table 1.1 summarises the proliferation of international courts in Africa. As Table 1.1 illustrates, Africa’s regional and subregional courts were almost exclusively created in the 1990s and early to mid-2000s. Moreover, all courts with compulsory jurisdiction were established after

21

17

30

1994 (1996)

1994 (1998)

1999 (2000)

1999 (2001)

4 Common Market for Eastern and Southern Africa (COMESA) Court of Justice

5 Common Court of Justice and Arbitration 1995 (1997) of the Organization for the Harmonization of African Business Law (OHADA)

1998 (2006)

3 West African Economic and Monetary Union (WAEMU) Court of Justice

6 African Court on Human and Peoples’ Rights (ACtHPR)

7 Court of Justice of the Economic Community of Central African States (ECCAS)

8 East African Court of Justice (EACJ)

6

6

8

1994 (1994)

2 International Criminal Tribunal for Rwanda (ICTR)

Yes

Yes

Yes∗ Yes

Yes

Yes, via national courts Yes

Yes, with optional protocol Yes, via national courts Yes

(continued)

Yes

No

No, but independent Yes prosecutor

1993 (2001) n/a

Yes

Compulsory Jurisdiction

Yes

Individual Access

15

Date of Number of African States Establishment Parties (Operational Date)

1 ECOWAS Community Court of Justice (ECCJ)

Regional and Ad Hoc Courts

International Courts

Table 1.1  Africa’s International Courts

1982 (1994)

1994 (1995)

1998 (2002)

2 International Tribunal for the Law of the Sea (ITLOS)

3 World Trade Organization (WTO) Appellate Body

4 International Criminal Court (ICC)

33

44

47

54

No Yes

No No

No, but independent Yes prosecutor

No

No

Notes: ∗ The Court has compulsory jurisdiction for all cases brought before it by the African Commission on Human and Peoples’ Rights (ACHPR), a states party or an African intergovernmental organisation. It has optional jurisdiction with regard to cases brought by an individual or an NGO, with such consent being provided by an optional declaration of acceptance. In February 2019, Benin, Burkina Faso, Côte d’Ivoire, Gambia, Ghana, Malawi, Mali, Tanzania and Tunisia had all provided such acceptance. Tanzania has however recently withdrawn it. Rwanda granted its citizens individual access in 2013 but withdrew it in 2016 (see also Chapter 5, this volume).

Sources: Gathii (2010, 245–282), Romano, Alter and Shany (2014), and the websites of the courts contained in the table.

1945 (1946)

1 International Court of Justice (ICJ)

Global Courts

No, but independent Yes prosecutor

n/a

2015 (2018)

12 Special Criminal Court (SCC) for the Central African Republic

No, but independent Yes prosecutor

n/a

2012 (2013)

11 Extraordinary African Chambers (ExAC)

No, but independent Yes prosecutor

n/a

2002 (2002)

10 Special Court for Sierra Leone (SCSL)

Yes

Yes, after exhausting domestic remedies

16

2000 (2007)

9 Southern African Development Community (SADC) Tribunal

Compulsory Jurisdiction

Individual Access

Date of Number of States Parties Establishment (Operational Date)

International Courts

Table 1.1  (continued)

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the Cold War ended. This suggests that the historical particularities of the immediate post-Cold War period are important for understanding Africa’s ‘move to law’. 3 Explanations Existing explanations for international court creation highlight courts’ functions or civil society pressures. The functionalist explanation assumes that governments build international courts because they are useful to them domestically, perhaps influenced in this view by non-governmental actors. As Karen Alter (2014b, 77) argues, ‘local actors embrace [international courts] to address local problems’. New courts offer solutions to governance problems, such as distrust of governments, non-compliance with regional rules or impunity for war crimes. External factors are also of some importance. The new WTO regime, for example, may have incentivised regional court creation by allowing regional economic communities to grant member states preferential market access (Alter 2014b, 76). For these scholars, Africa’s regional trade courts thus emerged as a response to ‘cross-border challenges’, problems of ‘co-operation around common resources’ (Gathii 2011, 20–21) or legal complexity hindering foreign investment (Dickerson 2016, 65). They see support for the ICC as driven by ‘self-interest and historical experiences with untold atrocities’ (Jalloh 2009, 497) or states’ desires to signal credible commitments to their own population (Simmons and Danner 2010). Constructivist explanations highlighting civil society pressures view governments as more reactive. They emphasise the role of global normative projects and internationally connected NGOs. These actors pressure governments to make ‘tactical concessions’ by ratifying treaties and acceding to new institutions (Risse 2000, 29; Risse and Ropp 2013, 6). Thereafter, activists hold states to their formal commitments, ensuring that progressive norms are granted prescriptive status. Activism and argumentation enable further socialisation and internalisation. Constructivists have argued that African states were persuaded by activists to ratify the Protocol establishing the ACtHPR, and that they supported the ICC because of a ‘commitment to the norms associated with liberal conceptions of justice’ (Murray 2004, 68; see also Grant and Hamilton 2016). We find little evidence, however, that functional or civil society pressures explain court creation. African states rarely use the new courts to

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solve their governance problems. They generally do not send their trade disputes to the WTO dispute resolution body or to regional economic community courts (Alavi 2007; Forere 2013). Even the most active of the latter bodies have obtained levels of compliance that are low even when compared with similar institutions in their infancy (see Chapter 4, this volume). International criminal courts, meanwhile, have been used by African states against their political adversaries, such as rebels or former incumbents, rather than against impunity. The signalling of credible commitments is difficult to detect, as new courts are seldom discussed in parliament or in the media. For all these reasons, government commitment to third-party adjudication seems ‘only skin-deep’ (Romano 2014, 99). Civil society activism, moreover, emerged after the institutions were set up. NGOs litigate many cases in international courts, but – with the exception of the ACtHPR – they did not push to create (as opposed to transform) these courts. We propose a third explanation. We argue that Africa’s international courts are the product of strategies of extraversion. These strategies were chosen by governments confronted with a fairly uniform set of new international imperatives and discourses: the loss of aid and influence in international affairs, the rule of law revival and the new regionalism. This context prompted governments to formally commit to international law and to then create regional and global architectures for its adjudication and enforcement. Almost immediately, governments attached courts of justice to new or refitted subregional communities. Outside the continent, meanwhile, they sought rent and crafted images of themselves as co-creators of an international rule of law. Extraversion is a strategy by which state elites pursue and maintain relations of dependence with more powerful external actors in order to secure their support. Originally theorised by Samir Amin (1976) to explain the underdevelopment of peripheral economies, the notion of extraversion is used by Jean-Francois Bayart (1993; 2000) to describe ruling elites’ relations of dependence with external forces. These take several forms, including manipulation of patron–state alliances, alignment with donor policies, and discursive and symbolic performances that shape external representations. Extraversion places agency at the centre of analysis: regimes and governments actively craft relationships, pre-empt policies, and ‘shape’ the representations that stronger actors

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hold about them (Jourde 2007, 484–485; see also Fisher 2013), aiming to become ‘“presentable” in the eyes of the world’ (Mbembe 1990, 4). As a result, external actors get the formal results they seek – laws, constitutions, ombudsmen, human rights commissions and courts – while African governments obtain assistance and some international influence. These rents, then, are used to build and maintain domestic authority (Peiffer and Englebert 2012). The Bayartian concept of extraversion has been criticised for being blind to continental and historical variation. Peiffer and Englebert (2012, 361) have demonstrated, for example, that countries have different ‘extraversion portfolios’ derived from their specific international linkages, political economy, geostrategic location, and so on. These differences affect governments’ relative vulnerability to donor demands. Pommerolle (2010, 265, 267) makes a similar point, highlighting geographical and temporal variation. ‘Layers of extraversion’, she writes, have been deposited unevenly across Africa’s histories, with the last 30 years representing ‘a more intense extraversion of the continent’. Similarly, we conceptualise extraversion as just one resource mobilisation strategy among others, rather than as an ahistorical ‘grammar’ of statehood (Bayart 2000, 254). In the post-Cold War period, its attraction derived from the situation in which most African states found themselves – a situation defined by rapid systemic changes, liberal hegemony and the appearance of agreement among major powers about world order (for subsequent adaption of external models, see Hartmann 2016; see also Introduction, this volume). 4 The Post-Cold War World The 1990s meant for most African states a decline in foreign aid, political leverage and international status. Total aid to Africa was considerably reduced. Foreign aid budgets were relocated to the new Eastern European and post-Soviet states, while the latter ceased their own aid programmes. By one count, aid to Africa dropped by 40 per cent during the 1990s (Bond 2006). Many African states also lost their strategic importance as superpower allies in the Cold War, which in turn affected their capacity to resist Western aid conditionality (Bekker 2007; Dunning 2004). Internationally, African states’ share of votes in the UN General Assembly and other international bodies decreased sharply due to the creation of many new post-Soviet states. Where they made up one-third of the General Assembly

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in 1980, they only constituted one-quarter in 2009.8 The decline in aid and influence made African states insistent on participating in new global projects, such as the promotion of the rule of law and the regional ordering of states. As we shall see, these projects presented increased opportunities for rent-seeking and representation on the international stage. 4.1 The Rule of Law Revival Thomas Carothers (1998) identified the rule of law as a ‘new nostrum’, a policy remedy prescribed to all kinds of transitional problems facing countries in the Global South. By then, rule of law reform had become a ‘major category of international aid’ provided by bilateral donors, multilateral organisations, universities, foundations and NGOs (Carothers 1998, 103). Related institution-building followed. Between 1995 and 2000, for instance, there was a ‘massive expansion’ in national human rights institutions accompanied by a fivefold increase in the number of UN activities in this area (Rosenblum 2011, 304). By the mid2000s, most UN agencies, Bretton Woods institutions, regional banks and bilateral development agencies had rule of law reform programmes, a mainstreaming reflected in the UN’s establishment of a coordinating Rule of Law Unit. In Africa, rule of law projects were overwhelmingly ‘donor-funded and donor-driven’ (Nyamu-Musembi 2006, 1193–1194). They focused on rights, constitutions and accountability structures, but also on neoliberal institutional reform designed to provide market access. They were intended to ‘consolidate’ an increasingly fragile-looking ‘third wave’ of democracy (cf. Diamond 1996). Reacting to these donor trends, African countries engaged in a wide range of constitutional, institutional and legal reform programmes. They harmonised their national laws with ‘best practice’, upgraded their courts, revised their electoral and commercial laws, instituted presidential term limits, repealed laws prohibiting dissent, and established official human rights commissions. Writing new constitutions and reforming old ones became a ‘constant focus’ (Berman 2009, 442). Almost everywhere, these reforms were justified with reference to the idea of an international rule of law: an ordering system for international affairs drawn from domestic models of the rule of law (Hurd 2018, 267). Just as the idea of a rechtstaat seeks to insulate certain principles from democratic deliberation, the ‘international rule of law’ was originally devised

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by neo-liberals as a means of protecting the global economy (in all its sublime complexity) from demagogic and ill-informed attempts to regulate it (Slobodian 2018). By the 1970s, the architects of this project had coalesced around Geneva and the Secretariat of the General Agreement on Tariffs and Trade (GATT), which they sought to use as a bulwark against attempts by African and Third World states to turn the UN General Assembly into a world parliament capable of legislating a New International Economic Order (NIEO) (Bedjaoui 1979; Gilman 2015; Lal 2015; Slobodian 2018, 218–262). Unsurprisingly, these neo-liberal lawyers welcomed the GATT’s eventual 1995 transformation into the more thoroughly legalised WTO (see generally Goldstein and Martin 2000). More generally, however, the end of the Cold War and its loosening of geopolitical constraints allowed a greater variety of actors to apply international rule of law language to a greater variety of situations. International law suddenly became something like a ‘vocabulary of virtue’ in international affairs (Venzke, cited in Hurd 2018, 272). Liberal reformers used it to demand more powerful institutions of adjudication and enforcement. An older ‘consensual paradigm’ where jurisdiction and adjudication were subject to specific consent started to be replaced by a newer ‘compulsory’ one that presupposed agreement by default (Romano 2009, 794). The 1990s became the UN Decade of International Law, established to ‘promote’ and ‘encourage the progressive development’ of rules for the world (UN 1999a). International organisations and donor countries made funding available for state participation in treaty-making negotiations and subsequent ratification campaigns, adding to existing forms of technical assistance provided for treaty domestication (UN 1999b). Under these circumstances, participation in international legal regimes became a greater source of legitimacy for states, not least African ones whose claims to statehood were so dependent on international recognition. African states now started to provide more formal commitments to international law and to establish more international judicial bodies. As Figure 1.1 illustrates, they ratified more human rights instruments in the 1990s than at any other period since 1966, when the first human rights conventions were opened for accession and ratification. In the Security Council, meanwhile, the African members voted to establish the International Criminal Tribunals for the Former Yugoslavia (ICTY)

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and Rwanda (ICTR) – against Rwanda’s wishes (UN 1994b). But while strategies of extraversion shaped domestic and international rule of law commitments, African states legitimised these activities with reference to sovereign equality. As Burkina Faso noted at the closure of the UN Decade of International Law, the progressive development of international law entailed the creation of ‘an international order in which the strong could not dictate to the weak’ (in UN 1999c). A language devised in the 1970s to counter African states’ most ambitious attempt to reshape

Ratification of UN Human Rights Treaties (%) Percentage of Available HR Treaties

12 10 8 6 4 2

1965 1967 1969 1971 1973 1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007 2009 2011 2013 2015 2017

0

Year (1965–2017)

Figure 1.1  African States’ Ratification of Core UN Human Rights Treaties Sources: UN Office of the High Commissioner for Human Rights (OHCHR) (http:// indicators.ohchr.org). Note: The graph reflects ratifications by African states relative to the number of their possible ratifications. As such, in 1978, human rights treaty ratifications by African states represented 5.8 per cent of their possible ratifications (i.e. had all existing states ratified all available treaties at the time). In 1993, this figure had risen to 10 per cent before falling again to 6 per cent by 2012. ‘Core UN human rights treaties’ refer here to the following conventions and their optional protocols: the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966), the Convention on the Elimination of All Forms of Discrimination Against Women (1979), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), the Convention on the Rights of the Child (1989), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), the International Convention for the Protection of All Persons from Enforced Disappearance (2006) and the Convention on the Rights of Persons with Disabilities (2006). In total, this represents 18 treaties.

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international relations was thus now adopted by those same African states to legitimise a more limited and defensive programme, a dramatic reflection of the continent’s changing place in the international order. The language of the international rule of law was, however, most prominent during the deliberations at the UN that led to the Treaty creating the ICC. According to the AU’s Open-Ended Committee of Ministers of Foreign Affairs on the International Criminal Court, the 34 countries that initially supported the ICC ‘embraced the rule of law movement as an extension of their commitments to Africa’s emancipatory future’ and saw the ICC as a ‘beacon of emancipation’ (AU 2017a). This point was made retrospectively and in the context of discussions over a collective withdrawal from the ICC. However, a close look at the participation of African countries in building the ICC suggests that even then, they had partly legitimised their engagement by reference to concerns over participation and world order (see also Gissel 2018b). Strikingly, African countries hardly spoke of impunity before 1998. Instead, they emphasised the importance of universal participation in the ICC regime, geographical evenness in court staffing, and an independent court that could protect states against their stronger counterparts. Justice referred more to international relations than individual accountability. International criminal law, it was argued, should be subject to both state consent and ‘the requirements of international public order’ (Senegal, cited in UN 1994a). The Court that they endorsed ‘appeared genuinely egalitarian in structure and profoundly fair in conception’, with a ‘seemingly marginal’ role reserved for the Security Council (Schabas 2013, 548). Many African states quickly ratified the ICC Statute; a few years later, the AU Assembly even made Statute ratification ‘by all countries’ in Africa a strategic commitment (AU 2004, 65). This larger project did not, however, make extraverted rent-seeking any less attractive. While African diplomats called for an ICC compatible with sovereign equality, they also engaged in sustained advocacy to establish and finance trust funds that paid for developing country participation in negotiations, technical assistance, and – after 1998 – support for domesticating and implementing the ICC Statute (see also Brett and Gissel 2018). In fact, trust funds and financial assistance were among the issues African states raised most frequently during General Assembly discussion.

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The focus on funding for participation and capacity development in the context of the ICC was mirrored in many African states’ engagement in the WTO regime established in 1995. At the 1998 and 1999 African Trade Ministers Meetings and during the Doha Round commencing in 2001, African WTO members maintained that they had supported the creation of the WTO without full knowledge and that their levels of policy technical skills were low (Jobodwana 2006, 259; Laker 2013, 6, 13). Such inequalities were indeed particularly stark and consequential. A former divisional director in the WTO Secretariat observed that his organisation hosted an ‘estimated … 2,847 meetings’ in 1997 alone (cited in Shaffer 2005, 136–137). In such circumstances, as one developing country negotiator put it, ‘either you have the technical capacity or people will take your wallet’ (cited in Hopewell 2015, 326). African states thus ‘conditioned’ trade negotiations on ‘significant investment in training and capacity building’ (Laker 2013, 13) and proposed a permanent trust fund to support capacity development in relation to using the WTO Appellate Body (WTO 2002). Advocacy for this fund also invoked the language of the international rule of law. As Kenya argued on behalf of the African Group, ‘every decent legal system ensures that parties that would not be able to exercise their rights in the judicial system for financial constraints are provided a means to do so’ (cited in WTO 2002, para. 3(c)). Although funding was mainly organised through ad hoc trust funds, the focus resulted in ‘massive increases’ in technical support to African countries, from 324 activities in 2000 to 1,235 in 2005 and 1,513 in 2010 (Laker 2013, 28). Unlike their participation in creating the ICC, however, African states’ extraverted strategies in the WTO negotiations were not legitimised with reference to a larger world order project. African states ‘barely participated’ in the GATT Uruguay Round, which in 1995 created the WTO, including its international court, the Appellate Body (Kappel 1996, 42). For instance, the negotiations on this dispute settlement mechanism included, on average, six African states, while between seven and ten African states took part in those concerning agriculture.9 Slightly more African states (between 7 and 13) joined the negotiating group on tropical products.10 While the concurrent nature of meetings impeded participation by small delegations, African governments were absent ‘in body or spirit, for the best part of the 8 years that it took for [the] Uruguay [Round] to be concluded’ (Tandon 1999, 83; see also Sorsa 1996,

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288 n1). According to Yash Tandon (1999, 84) of the United Nations Development Programme (UNDP): Matters of critical importance over which Europe and America fought tooth and nail, every inch of the way, clause by clause, word by word, for 8 years, were handled by African Plenipotentiaries [to the 1995 Marrakech Conference] as if they were taking a cosy breakfast.

This approach changed with the Doha Round (launched in 2001), where African states invoked a developmental discourse originating elsewhere. African negotiators challenged powerful states by successfully appropriating the language and vocabulary of fairness that these states had ‘directly introduced into the WTO’ in the mid-1990s (D Lee 2012, 95). Rather than creating a counter-discourse, African states used the dominant discourse of development to challenge and resist major states (D Lee 2012). This discourse portrayed African economies as marginalised. It was broad, flexible and deployed to justify the new regionalism resulting in the continent’s many regional community courts. 4.2 The New Regionalism The rule of law revival coexisted and fused with a new wave of regionalism promoting cooperative arrangements and market integration between neighbouring countries. Indeed, the rule of law was written into the fundamental principles of many regional communities, such as the Common Market for Eastern and Southern Africa (COMESA), the East African Community (EAC) and the Southern African Development Community (SADC). As a global project, a resurgence of regionalism emerged in the late 1980s; by 2006, it had resulted in the creation of more than 230 regional integration agreements globally (Gibb 2009, 701). A ‘global world order of strong regions’ was supposedly in the making (Buzan and Wæver, cited in Bach 2016, 2). The European Union (EU) had supported regionalism since the 1960s, but in the 1990s regional integration outside Europe became an explicit policy goal driven largely by the European Commission (EC). It adopted a diversified strategy based on ‘a range of policy instruments, a mix of conditionalities and incentives, all generally tailored to the economic, security and geopolitical interests of the EU’ (Farrell 2009, 1169).

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In Africa, the EU took ‘a leading role in trying to influence the attitude of the donor community as a whole in favour of regional integration’, and it sought to persuade agencies traditionally wary of the protectionist implications of customs unions to ‘demonstrate a regional cooperation “reflex”’ (Lavergne and Daddieh 1997, 107–108). As the former Commissioner for Development of the European Community put it in 1991, ‘Africa will be regional or not at all’ (cited in CEC 1991, 1). African governments responded to this new imperative by revamping and upgrading old regional organisations by creating new ones with names mimicking those of EU institutions (see also Chapters 3–5, this volume). The Organisation of African Unity (OAU) was relaunched as the AU; the Economic Community of West African States (ECOWAS) was revived and deepened; a new EAC was built on the ashes of its predecessor; the Southern African Development Coordination Conference (SADCC) and the Intergovernmental Authority on Drought and Development (IGADD) became, respectively, SADC and the Intergovernmental Authority on Development (IGAD); and the Preferential Trade Area for Eastern and Southern Africa (PTA) was transformed into COMESA. These subregional organisations reflected the thinking of the 1990s pertaining to development, security and order: gradual market integration and trade liberalisation would create economic growth, good governance would minimally regulate economic forces, and law would tame politics and ensure market integration. As Kenya’s Minister for Tourism, Trade and Industry, Nicholas Biwott, explained to the Parliament of Kenya (2000, 807), the EAC was created ‘in our attempt to become part of the globalized world’. This narrative drew on a ‘global script’ (Börzel, van Hüllen and Lohaus 2013) that positioned developing countries outside the world economy. For instance, the Cotonou Agreement between the EU and African, Caribbean and Pacific (ACP) countries ‘centred on … the gradual integration of the ACP countries into the world economy’ (EU 2000, art. 1). Most of these revived or new regional organisations were given a judicial arm with superficial similarities to the European Court of Justice (ECJ). These new courts certainly had ambiguous or wide-reaching jurisdiction and ‘new-style’ features such as compulsory jurisdiction and private access (Alter 2014a, 81). As described in Chapters 3–5 in this volume, they were set up by governments to generate international rent and

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manage the images of states and regions, rather than to regulate trade, hear private complaints or settle disputes. As a result, governments generally do not use them and consider it a nuisance when private or regional actors do. Tanzania and Kenya, for instance, are currently involved in several trade conflicts but are not taking them to the East African Court of Justice (EACJ).11 Africa’s only continent-wide court, the ACtHPR, was a response to the same external pressures that made subregional communities an African imperative. A relatively high level of NGO involvement in the ACtHPR’s creation does, nonetheless, distinguish it from its subregional counterparts. While in the 1990s calls for a human rights court ‘came primarily from external actors’, African lawyers, particularly through the International Commission of Jurists and the African Bar Association, were also important participants in the campaign (Bekker 2007, 159). In fact, the first draft Protocol establishing the Court was formulated under the auspices of the International Commission of Jurists by Karl Vasak, a Czech jurist, and prominent West African lawyers and judges (Alioune Bondin Beye, Keba M’Baye and Adama Dieng). This very same group, protected politically by President Senghor of Senegal, had been instrumental in persuading the OAU to accept the African Charter on Human and Peoples’ Rights (ACrHPR) in 1981 (Rubner 2011). Then these drafters had accepted that abandoning demands for an African human rights court was essential if they were to persuade states to adopt the Charter (Rubner 2011, 235). Now they were able to set about their work with more optimism. In 1994, soon after their draft was produced, the OAU Assembly began the process of establishing the Court (OAU 1994). States, however, showed little interest in the process; 23 governments sent representatives to a 1995 OAU conference discussing the Vasak draft. Calls for comments on a new draft yielded three official responses in 1996 (from Burkina Faso, Lesotho and Mauritius) and another 17 in 1997. In June 1998, the OAU Council of Ministers forwarded the constitutive Protocol to the OAU Assembly, which approved it ‘without any discussion’ (Ouguergouz 2003, 88). It would take six years before the required 15 ratifications would see the Protocol enter into force. The treaties establishing the ACtHPR and the ICC were both adopted in 1998, but African states were seemingly more enthusiastic about the global court: the regional Protocol obtained the assent of 15 African states

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parties by 2004, while the ICC Statute obtained this in 2002. And where the ACtHPR today has 30 members, including Western Sahara, the ICC has had 33 since Burundi left in 2017.12 These formal commitments were provided mainly during the 2000s, with only a few new ratifications in the 2010s. The patterns of support fit our argument that ICC support yielded more external material and symbolic rewards for states than did commitments to a regional human rights court. 5 Conclusion Africa’s subregional, regional or global courts should not be understood as reflecting government desires for these courts’ stated functions or values. It would be a mistake to see in their creation a wish to establish the rule of law, strengthen regional integration, enforce human rights or end impunity. Africa’s international courts were set up for a different set of reasons, which we have sought to describe rather than to simply dismiss as morally unworthy. States and ruling regimes established these courts in order to create the material and symbolic conditions of possibility for their survival and reproduction. They did this through rent-seeking, preempting of – and alignment with – donor policies, and crafting of images as themselves as rule-of-law-respecting countries that embraced new regional and global orthodoxies. If Africa was to be ‘regional or not at all’, then so be it. In this chapter, we have sought to explain why African governments made their continent the most internationally judicialised part of the world. Our analysis provides the backdrop to the remainder of the book, which moves from the puzzle of court creation to an examination of more recent backlash. In between these two moments, as we argue in the Introduction in this volume, the internal and external contexts of African policymaking changed: the liberal rule of law discourse lost its hegemonic status and began to compete with the new imperatives of the War on Terror; Western alignment could now be built from military and geostrategic as well as democratic credentials. China and Russia became more vocal in their criticism of power imbalances at international organisations. In Africa, China increased its involvement in aid and investment, the Belt and Road Initiative connecting African and Asian markets.

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Together with oil discoveries in West and East Africa, this possibility of greater financial autonomy has at least promised to create space for asserting more political autonomy. As we shall see in the next chapter, all these developments taken together have permitted African governments to mobilise collectively when the sovereign equality norm was violated by the ICC or the Security Council.

2

| AFRICA AND THE INTERNATIONAL CRIMINAL COURT

1 Introduction Africa’s relationship with the International Criminal Court (ICC) is in crisis. Since 2009, African states and their regional organisation, the African Union (AU), have made a number of decisions endangering the ICC’s project of international justice. They have called its integrity and independence into question, prohibited cooperation in cases against Sudan’s President Omar al-Bashir and Libya’s President Muammar Gadaffi, hosted wanted individuals on their territories, threatened to leave the ICC en masse, and adopted a non-binding exit strategy. In 2016, governments in Burundi, South Africa and the Gambia announced their decision to withdraw from the Rome Statute, with Burundi’s exit taking effect in October 2017. While many African governments remain in the ICC regime, since 2008 there has been a striking level of support across the continent for activities that question or undermine the Court’s authority. Below the government level, the picture is less clear-cut. Religious and traditional leaders and many ordinary people in northern Uganda have opposed ICC involvement in Uganda since 2005 (Allen 2006; Okello 2007). In Kenya, a majority of voters elected two ICC suspects to highest office in 2013, although surveys conducted between 2009 and 2013 indicate broad-based support for prosecuting the authors of Kenya’s 2008 post-election violence at the ICC (South Consulting 2009, 27; 2010, 18; Wolf 2013, 158). In the non-governmental organisation (NGO) sector, coalitions of ICC-friendly organisations across the continent regularly criticise governmental action that opposes the Court (e.g. see Human Rights Watch 2016; Kenya Human Rights Commission et al. 2015; 2017). In South Africa, an NGO, the Southern Africa Litigation Centre, has even taken the government to court for failing to arrest al-Bashir.1

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However, many NGOs find it increasingly difficult to square the circle of supporting the ICC while opposing its exclusive prosecution of Africans. This has led to ‘a deteriorating relationship between African NGOs and the ICC’ (Open Society Justice Initiative 2015, 3). In explaining the ICC’s crisis in Africa, contemporary scholarship offers a narrative of rupture: Africa became ‘increasingly disheartened’ (Schabas 2013, 548) and its relationship to the ICC ‘turned sour’ (Reinold 2012, 1088). This account seeks to reconcile African attempts to undermine the ICC with states’ initial enthusiasm for the institution. Scholars analyse how they ‘shifted’ from being norm entrepreneurs promoting anti-impunity to becoming norm ‘antipreneurs’ resisting anti-impunity (Mills and Bloomfield 2018, 102, 103; see also Bower 2019). Starting from a premise of the ‘continent’s deep commitment to the idea of international criminal justice’ (Akande, du Plessis and Jalloh 2010, 7), backlash can only be understood as a ‘turning point’ (Helfer and Showalter 2017, 3). The narrative of rupture might describe the increasingly unenthusiastic opinions of civil society organisations, but it misreads initial state support for the ICC. As we saw in Chapter 1 in this volume, states did not build the ICC to ‘fight impunity’. Rather, they participated in court creation to open up new lines of external funding and fashion images of themselves as rule of law states, legitimising this by calling for an ICC that protected the weak from the strong. African states advocated a universal regime built on state consent, independence from major power politics and horizontal relationships to national courts. In legitimising their backlash against the ICC, states revisited these earlier ideas about the Court. The backlash thus does not represent a departure from engagement with international justice in the 1990s. Instead, it marks a return to the arguments that supported participation in building the ICC. This chapter shows how the AU and many African states have legitimated backlash by making explicit the operative norm of sovereign equality in African international relations, and by advancing a related critique of Africa’s place in the current world order. It first discusses four strands of this African critique, showing how it gained traction in the aftermath of the al-Bashir arrest warrant. Thereafter, it turns to the backlash against the ICC, identifying its three forms – exposure, non-cooperation and withdrawal threats – and tracing them back to the critique. For the AU and some states, an African criminal jurisdiction has become a means of exiting the Rome

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System while remaining respectable in international society. The chapter therefore turns to the project to build a regional criminal court by means of a reconstituted African Court of Justice and Human Rights. Lastly, the chapter analyses the alternatives to exiting the ICC by focusing on efforts to improve upon or clarify the Rome System. Throughout the chapter, the analysis is guided by the interpretive approach outlined in the Introduction to this volume. We understand governments’ actions towards the ICC within their broader political contexts, rather than with the Court-centric focus prevalent in the literature. This leaves us open to the possibility that moves apparently indicating opposition to or support for the ICC may actually derive from other government objectives. Thus, Chad’s 2009 decision to formally oppose the AU Assembly’s first resolution on non-cooperation with the ICC should be understood not as a critique of the AU, but rather as a threat to the Sudanese government with whom Chad was engaged in a proxy war. Similarly, Malawi’s promise to arrest al-Bashir in 2012 does not signify a fresh commitment to the Rome Statute, but stemmed from the ambition to re-establish relations with donors and lift a suspension of aid following the Sudanese president’s visit to Malawi a year earlier. 2 Critique The backlash against the ICC invokes four problems with the global governance of international justice: the ICC’s interference with peacebuilding, the judicial targeting of Africans by more powerful actors, the role of the United Nations (UN) Security Council and the violation of sovereign immunity. This legitimation strategy mobilises some of the most fundamental norms of international society, most notably sovereign equality, as well as some ‘international rule of law’ concepts discussed in the previous chapter, such as equality before the law and judicial independence. The four strands of critique are interrelated and overlapping. They address both the structure of the ICC regime and the agency of its decision-makers. Together, they reach beyond the Rome System to expose the ‘global system of apartheid’ (Mbeki, cited in Adebajo 2009, 3; see also Introduction, this volume). On this view, the ICC threatens the hard-won achievements of decolonisation, at least when understood as a shift ‘from foreign rule to foreign relations’ (Mazrui 1964, 499).

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As concerns over ICC involvement expanded from a consequentialist worry about peacebuilding to existential anxieties over Africa’s role and place in global order, African states began to justify themselves to larger Pan-African publics. Formal AU initiatives about the ICC were opened up to states not party to the Rome Statute. In 2009, the AU Assembly took direction from meetings of African states parties, but six years later it established a committee on the ICC composed of an almost equal number of representatives of states parties and non-states parties.2 Likewise, the AU Contact Group created in 2013 to discuss ICC matters with the UN Security Council included three states parties and two non-states parties.3 Africa’s sovereign equality was now at stake. 2.1 New Alignments The timing of the critique’s emergence and subsequent mainstreaming (its ‘tipping point’) indicate the centrality of the Court’s involvement in Darfur, Sudan. In particular, two major political alignments created the conditions of possibility for backlash to be legitimated. The first alignment was in the context of the Security Council’s need to respond to the humanitarian emergency situation caused by civil war in Darfur. International mobilisation to stop a ‘genocide’ (in the words of United States (US) Secretary of State Colin Powell) and the findings of a UN Commission of Inquiry had created an imperative for Council action. The alignment occurred when the US agreed to align with the European Union’s (EU) position, abstaining in a March 2005 Security Council vote on whether the Darfur situation should be referred to The Hague. This abstention was in return for French and British support for the UN Mission in Sudan and was situated in a discursive context that created a binary choice between ICC involvement and impunity. This framing was deliberately pursued by Britain and France to obtain support for a referral; as the French UN ambassador explained (in Bosco 2014, 109), ‘[w]e wanted to put the Americans in a position where they would have to oppose something reasonable – and endorse impunity. We wanted the choice to be framed that way for them’. The US de facto support for the ICC referral marked a change in US policy on the Court. In the words of its ambassador to the UN (cited in US Embassy (UN) 2005, para. 3), US policy had hitherto been to ‘not agree in any way to support or give legitimacy to the ICC’. Earlier in

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2005, indeed, the US had lobbied key African states for support for an Arusha-based ad hoc Tribunal for Darfur as an alternative to ICC referral (US Embassy (Abuja) 2005; US Embassy (Dar-es-Salaam) 2005b). Arusha, in Tanzania, was the site of the International Criminal Tribunal for Rwanda (ICTR), established in 1994 by the UN Security Council. Although its officials privately expressed interest in hosting a tribunal for domestic economic reasons, Tanzania, then a Security Council member, ultimately decided to support the referral to avoid being seen to ‘undermine the credibility and jurisdiction’ of the ICC (Liberata Mulamula, cited in US Embassy (Dar-es-Salaam) 2005b). The second major alignment followed from the first, and was between the ICC and the Security Council. The Council’s first ICC referral linked the Court to the Security Council both specifically, in relation to its Darfur investigation, and in a wider sense. In the ICC Office of the Prosecutor, there was a sense that ‘[s]uddenly we were connected with the Security Council … It was a totally different game’ (MorenoOcampo, cited in Bosco 2014, 113). This connection emboldened the Prosecutor, who raised the possibility of regime change in Sudan as early as September 2007, arguing that ‘[t]he system has to be dismantled. Otherwise we are watching a new Rwanda’ (Moreno-Ocampo, cited in Ward 2007). Three months later, he indicated his pursuit of the Sudanese president to the Security Council (UN 2007, 5) and indicted him in July 2008. These two alignments – between US and EU positions and between the ICC and the Security Council – enabled Western Security Council members to take the Court’s institutional interests into account and highlighted the Court’s position in broader global governance structures. The politics of justice that followed these developments was met, however, with increasing criticism from African states. 2.2 Destabilisation and Interference in Peacemaking The first major African critique of the ICC centred on the claim that ICC involvement would destabilise a fragile political situation and undermine peace negotiations. It was first articulated by governments and the AU in relation to the Security Council’s Darfur referral in March 2005, with Sudan arguing that the referral ‘will only serve to weaken the prospects for settlement and further complicate an already complex situation’ (UN 2005, 13). This argument had also been developed by civil

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society actors in northern Uganda when the ICC Prosecutor opened an investigation there in July 2004 and after he indicted Ugandan rebel leaders of the Lord’s Resistance Army. Given Uganda’s formal consent to ICC involvement, other African governments and the AU refrained from commenting on Uganda’s peace/justice dilemmas and did not call for a Security Council deferral of prosecution. They only began to voice concerns about the impact of justice on peacemaking when the ICC became involved in Sudan against the government’s will, and in the middle of peace talks between it and Darfuri rebels. The Darfur referral resulted from a Security Council vote of 11 in favour and 4 abstentions.4 Benin and Tanzania supported a referral against Sudan’s wishes, while Algeria abstained. These two positions reflected what Chad’s President Idris Déby described as the ‘two schools of thought within the AU on how to move forward’: working through the ICC or through African institutions (US Embassy (Ndjamena) 2005, para. 4). In explaining their support for the ICC referral, Tanzania and Benin highlighted the need to take international action to halt the suffering in Darfur and emphasised their own membership of the Court. Tanzania told US officials (US Embassy (Dar-es-Salaam) 2005a, para. 4) that it was unwilling to do ‘anything that would be perceived as undermining the ICC’. It was important for Tanzania to be seen to support the ICC, in order to be ‘“presentable” in the eyes of the world’ (Mbembe 1990, 4). Algeria, not an ICC member, abstained in order to signify support for the alternative AU proposal centring on high-level political negotiations (UN 2005). The ‘Pan-African solidarity norm’ discussed in the Introduction to this volume had not yet been mobilised. Instead, the AU Peace and Security Council echoed Sudan’s peace and stabilisation argument, to the effect that ‘the search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace’ (AU 2008b, para. 3). In African foreign relations, however, this argument was still trumped by stronger concerns about not being ‘perceived as undermining the ICC’ and with (being seen to be) ‘doing something’ to halt the humanitarian crisis in Darfur. Once the ICC Prosecutor indicted al-Bashir, however, Benin and Tanzania changed their stances, joining many African states parties, non-states parties and AU institutions in expressing concern over Court involvement in Sudan. Tanzania’s President Kikwete argued that it was

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‘not the right time to indict President Bashir’; an indictment ‘would create a leadership vacuum in Sudan which could lead to more bloodshed’ (US Embassy (Dar-es-Salaam) 2008a, para. 3). Kikwete’s foreign minister held a joint press conference with the Sudanese ambassador, expressing fear of the spread of violence to southern Sudan and an invasion by Chad to take advantage of the ensuing chaos (US Embassy (Dar-es-Salaam) 2008a, para. 3). To the AU more broadly, ICC involvement in Sudan was seen to have ‘the potential to seriously undermine’ ongoing peace and stabilisation efforts ‘and may lead to further suffering’ as well as ‘greater destabilisation’ of Sudan and the region (AU 2009a, para. 4; see also AU 2009b). This perspective was reiterated and reaffirmed over the years as the ICC process against al-Bashir refused to go away. It was also pursued in relation to other ICC investigations not initiated by African states, such as those in Kenya and Libya. The Assembly, for instance, argued that the indictment of Gadaffi ‘seriously complicates the efforts aimed at finding a negotiated political solution to the crisis’ in Libya (AU 2011, para. 6). The destabilisation argument, however, had its limits: it could not constitute the basis for a broad-based mobilisation of African states more generally and was displaced by a different strand of ICC critique that called the legitimacy of the Court as a whole into question. And this line of argument was to prove considerably more powerful. 2.3 Targeting of Africa The claim that the ICC is biased against Africa spread with particular speed following the indictment of Sudan’s President al-Bashir. It is among the ‘most popular arguments’ on the continent, where there is an acute awareness that the ICC has prosecuted only Africans during its 17 years of operation (Vilmer 2016; see also Ba 2017). The first investigation of non-African mass violence was launched in January 2016, focusing on Georgia’s South Ossetia region, but by then the damage was already done: states had begun to argue that they ‘[saw] these patterns of only pursuing African cases [as] being reflective of selectivity and inequality’ (AU 2017a, para. 2). They spoke of a ‘widespread perception’ of ‘selective justice’ by the ICC (Kasyanju 2016, 2). Jean Ping (cited in Bosco 2014, 151) summed up the argument, stating that ‘[w]e think there is a problem with [the] ICC targeting only Africans, as if Africa has been a place to experiment with their ideas’.

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The targeting argument has been deployed by many different actors, including those who were preventing justice or using it instrumentally. It was in fact first deployed by US diplomats as part of their unsuccessful effort in early 2005 to enlist support from Mozambique, Nigeria, Senegal, South Africa and Tanzania for the ad hoc Tribunal for Sudan (US Department of State 2005). However, the argument only went mainstream three years later, after the Prosecutor took aim at the Sudanese president. Benin’s President Thomas Boni Yayi (cited in Sudan Tribune 2008) glossed over his country’s role in the ICC referral and instead invoked the targeting argument: ‘We have the feeling that this court is chasing Africa’. Uganda’s President Museveni (cited in Ba 2017, 46), who had used an ICC referral strategically to internationalise and justify his counter-insurgency war in the north, now called the ICC a tool for ‘oppressing Africans’. Kenya, investigated by the ICC against its will, and seeking to mobilise states against the ICC, invoked the image of Africans as ‘the perennial scape goats’ (Muchiri 2016, 3). Due to widely shared anxieties about Africa’s place in the world, even critiques emanating from these quarters have left ICC supporters deeply uncomfortable. Once they began to argue that the Court was biased, African governments compared it with the ‘abuse of universal jurisdiction’ by European courts (AU 2008a). The previous decade had seen officials indicted from many African states, including Congo-Brazzaville, the Central African Republic (CAR), Côte d’Ivoire, the Democratic Republic of the Congo (DRC), Equatorial Guinea, Libya, Mauritania, Morocco, Rwanda, Tunisia, Uganda and Zimbabwe (EU 2009; UN 2009). Previously, governments had distinguished sharply between European universal jurisdiction trials and the ICC. They had busily ratified the Rome Statute while strongly objecting to Europe’s judicial activism and, in some cases, challenging it at the International Court of Justice (ICJ). The DRC, for example, signed the Statute in September 2000 but instituted ICJ proceedings against Belgium a month later over the indictment of its Minister for Foreign Affairs, Abdulaye Yerodia Ndombasi (the Arrest Warrant case).5 It won the case in February 2002 and ratified the Statute two months later. From 2008 onwards, however, the ICC and universal jurisdiction were increasingly conflated as ‘new weapons of choice of former colonial powers targeting weaker African nations’ (Jalloh 2010, 4; see also Mills and Bloomfield 2018, 110).

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The critiques of both targeting and universal jurisdiction have highlighted strong states’ use of the ICC against weak states. As stated by Ethiopia on behalf of the AU, the ICC was now a court ‘to deal with Africans in the most rigid ways with lack of trust and respect for Customary International law’ (Ghebreyesus 2015). Even Courtfriendly ICC members such as Lesotho (2018, 4) warned the Assembly of States Parties of the risk of ‘be[ing] seen as a tool used by others to persecute African leaders, which will ultimately leave Africa with no choice but to seek other alternatives’. Equally, on this view, the chief problem with universal jurisdiction had been its abuse by powerful states; as Rwanda’s Kagame (cited in Jalloh 2010, 1) stated: Lately, some in the more powerful parts of the world have given themselves the right to extend their national jurisdiction to indict weaker nations. This is total disregard of international justice and order. Where does this right come from? Would the reverse apply such that a judgment from less powerful nations indicts those from the more powerful?

The indictment of al-Bashir had radicalised African states’ critique. The ICC came to represent the reversal of decolonisation’s shift ‘from foreign rule to foreign relations’ (Mazrui 1964, 499). For the first time, the ICC posed a concrete and immediate threat to their collective interests. The arguments they used to legitimate these new interests were, however, neither new nor trivial. They now began revisiting standards they had sought to establish for the ICC in the 1990s, before the Court posed any immediate threat to regime survival (see Chapter 1, this volume). This legitimation strategy highlighted how the ICC was functioning to reinforce rather than undermine an unequal world order. Although a number of (particularly West African) states would continue to dissent from some of its detailed aspects, the power of this critique in Pan-African circles ensured that it would become increasingly difficult to reject in toto. 2.4 The Role of the Security Council The critique of the role of the UN Security Council entails some nuances that help us understand the ICC’s crisis in Africa. The Council has been criticised for abusing its privileged position in the Rome System by initially ignoring and later refusing to act on numerous appeals for it

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to request a deferral of prosecution of presidents and vice presidents in Sudan, Kenya and Libya: al-Bashir, Uhuru Kenyatta, William Ruto and Muammar Gadaffi. The Rome Statute provides in Article 16 for deferral requests by the Council acting under Chapter VII of the UN Charter, but Western Security Council members, particularly the permanent members of France, the United Kingdom (UK) and the US (the ‘Permanent Three’, P3), have consistently approached deferrals as a political act of last resort. UK diplomats (cited in US Embassy (London) 2008, para. 1) have described the deferral option as a ‘card not to sell cheaply.’ Where the P3 considered and discussed this card’s appropriateness in Uganda and its leverage and use in Sudan, they were more firmly opposed to its application in Kenya. The Council’s initial unwillingness to formally acknowledge African requests for a deferral of prosecution of al-Bashir ‘angered’ the AU and many of its member states, eliciting the first allegations that the Council was abusing its power (Reinold 2012, 1090). In Council discussions, permanent members disagreed too much and Western members opposed the AU request. This decline was broadly castigated as an affront to Africa’s entitlement to participate equally in international affairs. Although the AU, the Organisation of Islamic Cooperation (OIC), the Arab League and the Non-Aligned Movement supported a Council request for deferral of prosecution of al-Bashir, the P3 opposed it. Libya (cited in US Embassy (UN) 2008a, para. 6) asked in exasperation, ‘if the Security Council will not act on Article 16 now, with two thirds of the international community requesting it, then when?’ The defeat, in November 2013, of an African proposal to defer the prosecution of Kenyatta and Ruto (UN 2013) highlighted the need for Pan-African action.6 In the subsequent AU Assembly meeting, heads of state ‘reserve[d] the right to take any further decisions or measures that may be necessary in order to preserve and safeguard peace, security and stability, as well as the dignity, sovereignty and integrity of the continent’, and asked the AU Commission to ‘speed up’ the process of regionalising international criminal justice (AU 2014a, paras 9 and 13). African Council members were unanimous in their support for Article 16 deferrals of the cases against al-Bashir, Kenyatta and Ruto (UN 2013; US Embassy (UN) 2009). The perceived snubbing of requests from an entire continent mobilised the Pan-African solidarity

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norm (Tieku 2012). It legitimised the AU Assembly’s decision to not cooperate with the ICC and disciplined states to comply with it. And it mobilised states to support an African criminal division while justifying the inclusion of non-states parties in regional policymaking on the ICC (e.g. see AU 2009d; Deutsche Welle 2015). It is worth noting, however, that the African critique of the Security Council initially did not address its referral powers. Neither African states nor the AU had objected to the Security Council’s Darfur referral in March 2005, and their critique following the indictment of al-Bashir did not touch on referrals. In November 2009, ministers from 41 countries, including 26 ICC members, met to set the African agenda for the 2010 Rome Statute Review Conference: an apparent opportunity to renegotiate some aspects of the Statute. They recommended that the Security Council’s referral powers ‘should be retained as it is, in view of the fact that it is the organ responsible for the maintenance of international peace and security and has the power to set up ad hoc tribunals’ (AU 2009d, 4). The February 2011 Council referral of Libya (a non-states party) to the ICC drew on support by the Council members Gabon, Nigeria and South Africa, who explained their position with reference to protection of civilians and the deterrent effect of ICC involvement (UN 2011a). Since 2011, however, the ICC’s Africa crisis deepened, and the critique of the Security Council’s role gradually expanded to the extent that any Council involvement was now portrayed as illegitimate. Council actions on Libya and Kenya contributed to this development. South Africa, which had supported Council Resolutions 1970 and 1973 – first referring Libya to the ICC and then authorising states to take ‘all necessary measures’ to protect civilians (UN 2011b, para. 4) – in full knowledge of its interpretive possibilities, now opposed the North Atlantic Treaty Organization’s (NATO) military campaign in Libya (de Waal 2013, 368; Reuters 2011). It criticised ‘international actors and external organizations’ (a reference to NATO and the P3) for ‘advancing political agendas that go beyond the protection of civilian mandates, including regime change’ (UN 2011c, 18).7 In November 2013, African Council members (Morocco, Rwanda and Togo) supported the unsuccessful request for deferral of prosecution of Kenya’s president and vice president (UN 2013). According to Ghana’s President John Mahama, this refusal to defer the Kenyan cases informed the adoption of the AU Protocol to regionalise criminal

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justice (cited in Deutsche Welle 2015), discussed below. The 2017 AU draft Withdrawal Strategy Document argued that Council decisions in the field of international justice: are made on the basis of the interests of its Permanent Members rather than the legal and justice requirements. Needless to say, these interests are not always in line with those of Africa, thereby leading to a perception of a double standard against African States … the role of the United Nations Security Council (UNSC) and its referral and deferral mechanism under article 16 of the Rome Statute raise questions about perceived fairness of the international justice system as a whole. (AU 2017a, para. 3)

Criticism of the Security Council’s role has thus advanced the African critique of the ICC beyond Pan-African solidarity. It now highlights how a ‘double standard against African states’ – allowing them to be referred to the ICC by states not themselves subject to the Court – is incompatible with fundamental sovereign equality norms. As we shall see below, indeed, African states parties have proposed to transfer the Council’s deferral powers to the UN General Assembly: an organisation untainted by the presence of special privileges and formal legal inequalities. Sovereign equality itself, meanwhile, as argued in the Introduction to this volume, owes its power to Mazrui’s (1964, 499) ‘cult of participation in world affairs’ that emerged during decolonisation. And the language of participation has certainly been omnipresent in the ICC debate. As Uganda told the Court’s Assembly of States Parties, ‘on most occasions, Africa’s voice has gone unheeded’ (Byaruhanga 2016, 3). 2.5 The Violation of Sovereign Immunity African states and the AU have also argued that the ICC’s prosecution of incumbent state officials violates sovereign immunity. So far, the ICC has indicted top government officials in Sudan, Kenya and Libya on the basis of investigations not consented to by the states concerned. Sudan and Libya, moreover, have not ratified the Rome Statute, opting to not participate in the ICC regime. African states argue that the prosecution of incumbent non-states party government officials violates sovereign immunity and states’ right to not be bound by treaties to which

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they have not consented. Malawi used these (once) cardinal principles of international legal order to justify its non-arrest of al-Bashir: [I]n view of the fact that His Excellency Al Bashir is a sitting Head of State, Malawi accorded him all the immunities and privileges guaranteed to every visiting Head of State and Government; these privileges and immunities include freedom from arrest and prosecution within the territories of Malawi … [and they are] in line with the established principles of public international law, and in accordance with the Immunities and Privileges Act of Malawi … [Furthermore, Sudan] is not a party to the Rome Statute and, in the considered opinion of the Malawi authorities, Article 27 of the Statute which, inter alia, waives the immunity of the Heads of State and Government, is not applicable.8

State immunity bars national courts from exercising criminal jurisdiction over claims made against another state, therefore shielding states from the exercise of foreign jurisdiction (Wirth 2002). The function of this immunity is to protect the sovereign equality and legitimate interests of states (International Law Commission 2017, 181). This immunity is customarily extended to heads of state, such that they are immune from foreign criminal jurisdiction while in office. Jurists disagree, however, on the scope: whether immunities apply when leaders travel abroad, and if so if this is in their private and/or official capacity (contrast Akande 2009 with Kiyani 2013). They also disagree on whether head of state immunity is barred by Security Council referrals to the ICC or the suspected commission of serious international crimes (contrast Gaeta 2009 with International Law Commission 2017, Chapter 7). The situation is, however, different for heads of state that are party to the Rome Statute, such as Kenyatta, because their immunity is waived by Article 27(2) of the Statute. Like the two previous strands of critique, asserting sovereign immunity necessarily has wider implications. These reach beyond questions of accountability to the nature of statehood as defined by participation and foreign relations. Immunity, first mobilised by African states only in order to oppose European courts’ claims to universal jurisdiction, has now become one of the most contentious issues at the UN. The 2002 Arrest Warrant decision by the ICJ provided support for the African interpretation but did not settle the issue with regard to international courts

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such as the ICC and heads of non-states parties such as al-Bashir. The ICJ found that in issuing an arrest warrant against the DRC’s minister of foreign affairs, Belgium had failed to respect his immunity from criminal prosecution and his inviolability under international law. The Court was unable to deduce from state practice the existence of any customary exception to the immunity rule where war crimes or crimes against humanity are suspected and did not settle its application in relation to international criminal jurisdiction. African states placed the issue of sovereign immunity on the agenda of the International Law Commission, where it is currently discussed. 3 Backlash Backlash denotes attempts by a state or states to restructure, withdraw from or coordinate non-compliance with an international court. It aims to delegitimise or otherwise undermine the Court’s authority, and may be organised using political and legal, formal and informal strategies. Both the AU and many African states in their individual capacity have been responsible for pursuing it against the ICC. We refer to both in this chapter as ‘the African backlash’.9 Three types of formal initiative have been deployed to constrain or delegitimise the authority of the ICC: exposing politicisation by the Court, non-cooperation and withdrawal threats. They reflect a gradual escalation of conflict between the AU and the ICC, as the failure to act on criticism and requests for deferral of prosecution developed into discussions of a coordinated exit. For instance, Senegalese President Abdoulaye Wade’s call for a mass withdrawal in May 2009 may have appeared extreme, and in any case did not gain any immediate traction, but by 2016 it was part of the AU Assembly’s toolbox for dealing with the ICC (AU 2016, para. 10(iv)). In what follows, we discuss each type of backlash initiative in turn, beginning with the exposure of politicisation. The African backlash has sought to expose politicisation by publicly criticising the ICC for targeting Africa, initiating political interventions on behalf of the Security Council and violating sovereign immunity. These critiques are discussed above. Together, they increasingly created the sense that the Court was being mobilised against weak states, the cardinal sin which African states had warned against since negotiating the Rome Statute in the early 1990s. In response to this threat to sovereign equality,

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and in an indication of the question’s existential dimension, African heads of state decided in January 2014 to ‘reserve the right to take any further decisions or measures that may be necessary in order to preserve and safeguard peace, security and stability, as well as the dignity, sovereignty and integrity of the continent’ (AU 2014a, para. 9). Across the continent, the Court was pilloried as ‘created just for Africans’ (Ernest Ndabashinze, in O’Grady 2016) or ‘an international Caucasian Court for the persecution and humiliation of people of colour, especially Africans’ (Sheriff Bojang, cited in O’Grady 2016). Moderate voices, such as Ghana’s John Mahama, told Western audiences that ‘Africa feels targeted, rightly or wrongly’ (cited in Deutsche Welle 2015). The remaining two backlash initiatives, non-cooperation and withdrawal, could now be legitimised as a defence of Africa’s dignity and equality. Non-cooperation relates to the cases against al-Bashir and Gadaffi. This policy was first agreed upon in July 2009 by the AU Assembly following the Security Council’s refusal to consider the request for an Article 16 deferral of the case against the Sudanese president (AU 2009c, para. 10); two years later, it was adopted in relation to the Libyan leader (AU 2011, para. 6). It constituted a public show of Pan-African solidarity, and pitted states’ obligations to the AU against those to the Rome Statute. So far, eight African states parties have hosted the Sudanese leader without arresting him.10 Chad, the DRC, Malawi, South Africa and Uganda have been found by the ICC Pre-Trial Chamber to have violated their obligations to the Statute. With the exception of South Africa, these countries have consequently been reported to the Assembly of States Parties and the UN Security Council. Hosting al-Bashir has led to condemnation by Western states, NGOs and – in Malawi’s case – the suspension of a compact with the Millennium Challenge Corporation worth $350 million. The suspension was lifted when Malawi’s President Joyce Banda reversed her predecessor’s policy of non-cooperation and vowed to arrest the Sudanese leader. She struggled, however, to legitimate this publicly, appealing to al-Bashir to ‘forgive us this time as we are struggling to fix the economy’ (cited in Banda 2012). The AU Assembly first spearheaded organised and formal noncooperation as a collective response to the new and unjust exercises of universal jurisdiction. The Assembly decided in July 2008 that member countries should not cooperate with European courts in such cases

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(AU 2008a, para. 5(iv)). On this view, non-cooperation policies create an African safe haven for those subject to prosecution in unfair, biased or arbitrary systems, whether overseen by activist European judges or the ICC. The last and most dramatic formal initiative has been the issuing of threats of collective withdrawal from the Rome Statute. It was first used by the AU’s Peace and Security Commissioner, Ramtane Lamamra, as a lever in confidential discussions with Security Council members about deferring the prosecution of al-Bashir as per Article 16 of the Statute (US Embassy (UN) 2008b). In 2009, ICC states parties Senegal, Djibouti and Comoros called on African states to withdraw from the ICC (Heinlein 2009; Mendes 2010), but other states rejected this drastic step. Four years later, Kenya tabled a mass withdrawal motion at the AU Assembly, but was opposed by Cabo Verde, Nigeria, Senegal, South Africa and others (Boehme 2016, 64; Kuwonu 2017). During the past decade, African states have debated and/or called for African mass withdrawal, while parties, parliaments or governments in Burundi, the Gambia, Kenya, Namibia and South Africa have decided in favour of a unilateral withdrawal from the Rome Statute. The latest withdrawal threat came from Joseph Kabila of the DRC in September 2018 (TRIAL International 2018). The withdrawal discourse has so far reached a high point in January 2017, when the AU Assembly adopted an ICC Withdrawal Strategy Document that had been prepared by an Open-Ended Committee of Ministers of Foreign Affairs on the ICC (AU 2017b, para. 8). The policy was non-binding due to the lack of consensus in the Assembly: Benin, Botswana, Burkina Faso, Cabo Verde, Côte d’Ivoire, the Gambia (now with a new government), Lesotho, Liberia, Madagascar, Malawi, Mozambique, Nigeria, Senegal, Tanzania, Tunisia and Zambia formally registered their reservations. So far, Burundi is the only country to have exited the Rome Statute, as the decision to withdraw has been reversed in the Gambia, and in South Africa the withdrawal legislation has been revoked following a High Court ruling.11 The Open-Ended Committee considered Burundi, South Africa and the Gambia to be ‘pioneer implementers of the Withdrawal Strategy’ because of their initial decisions to leave the ICC regime (AU 2017a, para. 6). Although Burundi’s exit was approved by most of its legislators, it was likely motivated by purely domestic interests, reacting against the

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ICC Prosecutor’s decision to open a preliminary examination into political violence since April 2015.12 The withdrawal has, however, gained a wider significance that reaches beyond East Africa. Its endorsement by the AU Withdrawal Strategy Document has helped delegitimise the ICC and make the threat of mass withdrawal more real. The threat of mass withdrawal is clearly more powerful than that of individual exit. As a collective act, it does more to legitimate grievances against the Court. As the AU Commissioner and the Open-Ended Ministerial Committee have made clear, threats of mass withdrawal can be used as bargaining tools (AU 2017a; US Embassy (UN) 2008b). Continental disunity dilutes such leverage, and the AU has thus appealed for compliance with its decisions on the ICC (AU 2010; 2012; 2014a; 2016; 2018). Currently, as supporters of the ICC have pointed out (Lansky 2016), Africa’s 33 states parties are indeed split on the question of mass withdrawal. A number of countries have reported their readiness to withdraw to the Open-Ended Ministerial Committee on the ICC, while others, such as Kenya, Namibia and Uganda, are officially ready to withdraw as part of a concerted campaign (e.g. see Kenya Ministry of Foreign Affairs 2016). Other states, including – notably – Nigeria and Senegal, are hesitant about or opposed to collective withdrawal at this point in time. In these widespread domestic and continental discussions and disagreements over whether to exit the regime, those favouring withdrawal often invoke the norm of sovereign equality. For instance, South Africa’s African National Congress (ANC) party (cited in Boehme 2016, 64) tried to pressure the government to support Kenya’s mass withdrawal plan, arguing that ‘the ICC is representing inequality before the world justice where the weak is always wrong and the strong is always right’. Burundi justified its exit as an attempt to protect ‘its national dignity and the dignity of African victims of selective and discriminatory justice’ (Nahimana 2016, 6), while the AU Withdrawal Strategy laments the ‘selectivity and inequality’ of justice at the ICC and the ‘systemic disadvantage’ of African states in Security Council decision-making (AU 2017a, 1). This language resonates with the history of Africa’s international relations. By contrast, the first argument advanced against the ICC – that it undermines peace negotiations and prevents stabilisation – never mobilised the Pan-African solidarity norm.

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3.1 Regionalising International Justice Building an African criminal court has become a means of leaving the Rome Statute. Withdrawing from the ICC while simultaneously conferring international criminal jurisdiction on the African Court of Justice and Human Rights would allow states to speak the ‘vocabulary of virtue’ (Venzke, cited in Hurd 2018, 272) and remain formally committed to the ‘war against impunity’. It is no coincidence that Kenya was the first country to express its intent to join such a new court, pledging KSh100 million in 2015 towards its creation in order to ensure that it is ‘fully owned, financed and driven by Africa’ (Kenyatta, cited in Musau 2018). The idea of a regional criminal court was not initially designed as an alternative to the ICC, but over time it has acquired such significance due to backlash. The idea of an African regional criminal chamber is sometimes traced back to the 1970s (Abass 2013, 937; Viljoen 2004, 4), but this is a misunderstanding. In this earlier period, there was only ever a remote possibility of a UN court to try one specific crime – apartheid – and the prospect of this was used by promoters of the African Charter on Human and Peoples’ Rights (ACrHPR) to head off resurfacing demands for a more general human rights court.13 A criminal chamber was only floated in earnest in 2006, amid concerns over European courts’ assertions of universal jurisdiction. The idea came from a Committee of Eminent African Jurists on the Case of Hissène Habré, which had been established to identify an ‘African mechanism’ for trying the Chadian leader (see Chapter 4, this volume). This Committee recommended the merger of the African Court on Human and Peoples’ Rights (ACtHPR) and the African Court of Justice, with the merged court being ‘granted jurisdiction to try criminal cases’ pertaining to crimes against humanity, war crimes and torture (AU 2006, para. 39). Such a court, it maintained, would be compatible with the Rome Statute because of the latter’s complementarity regime. The Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the ‘Malabo Protocol’) transforms the human rights court and creates a regional criminal chamber. Adopted in June 2014 (AU 2014b), the Protocol recalls the Assembly decisions on the Abuse of the Principle of Universal Jurisdiction. Between 2006 and 2014, regionalisation had come to represent an alternative to the ICC. Darfur, once again, was central to this development. In June 2009, 26 African ICC members met to discuss

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the indictment of al-Bashir and recommended, among other things, the idea of giving the ACtHPR criminal jurisdiction (AU 2009f, 17). Since then, ICC-related decisions by the AU Commission and Assembly, including the draft ICC Withdrawal Strategy, have urged AU members to ratify the Malabo Protocol (e.g. see AU 2016, para. 11(ii)). The Malabo Protocol has been signed by 15 states,14 but none have ratified the Protocol. The fact that it has not entered into force five years after its adoption is not unusual in the context of African treaty-making (Maluwa 2012). However, it may reflect a sense of uncertainty about the political and legal consequences of ratification on behalf of some states. As Solomy Balungi Bossa (cited in Okuda 2018), a Ugandan judge at the ICC asks, ‘The ICC intervenes only if a state fails to investigate and prosecute so how will that work with the African court?’ Other states appear to be slow to ratify because of an unwillingness to signal an intention to withdraw from the Rome Statute. They emphasise engagement with the Rome System and have identified a range of changes that would reform the ICC for the better. 3.2 Reform The African critique of the ICC also has been used to justify efforts at resisting the court by reforming it from within. Reform proposals have consisted of amendments to ICC policies and the Rome Statute, as well as a request for an advisory opinion from the ICJ. To be successful, the legal and policy amendments need approval in the Assembly of States Parties, while the UN General Assembly must request the advisory opinion. These initiatives therefore require a great deal of diplomatic effort. The Open-Ended Ministerial Committee has proposed to peg reforms to the withdrawal threat, suggesting that backlash denotes an escalation of resistance (AU 2017a). This document did not, however, obtain unanimous support from states. The critique of the ICC’s adverse impact on peacebuilding and stabilisation has, meanwhile, prompted a request for review of the 2009 Regulations of the Office of the Prosecutor to ‘include factors of promoting peace’ in a code of conduct governing the exercise of prosecutorial powers (AU 2009d, 3; 2010). This idea was later extended, and the Security Council was asked to consider ‘the interrelatedness of peace and justice and the importance of sequencing [peace and justice]’ (AU 2017a, 13–14).

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Since 2007, however, the Prosecutor has clearly separated the ‘interests of justice’ from the ‘interests of peace’, and has steadfastly maintained that the latter is the responsibility of the Security Council rather than his or her Office (ICC 2007). Accordingly, the Office’s code of conduct contains no references to peace (ICC 2013). The critique of the Security Council’s role has resulted in proposed amendments to the Statute transferring deferral powers to the UN General Assembly. These powers would be exercised in situations where ‘the UN Security Council fails to decide on the request by the state concerned within six (6) months of receipt of the request’ (AU 2009d, 6). Thirteen non-African members of the ICC Assembly of States Parties did, however, manage to block this amendment in November 2009 (AU 2009e). The idea of setting the Security Council on a par with the General Assembly was not new to African states. Algeria, Ethiopia, Guinea, Morocco, Niger, Nigeria and Sierra Leone had all advocated this in different ways during negotiations on the Statute in the 1990s (see also Gissel 2018b). Niger, for instance, proposed that referral powers should fall to the General Assembly if Security Council action was blocked by veto (UN 1993). The amendment on deferral powers was accompanied by a less specific resolution directing the Security Council that no future referral of an African situation ‘should be made without deference to [the] Assembly of the [African] Union’ (AU 2017a, para. 38). AU members were also asked to communicate this to the Council (AU 2017a, para. 27), perhaps a nod to the African Security Council members who had supported the ICC referrals of Sudan and Libya.15 A last AU reform initiative, adopted in 2012, seeks to clarify the status of immunities through an advisory opinion from the ICJ (AU 2012, para. 10). So far, however, African states have failed to mobilise the General Assembly for such a request. 4 Conclusion Backlash against the ICC has not involved direct confrontation with the anti-impunity norm, but has been justified using the cardinal principles of international legal order. These arguments have gained their power from an overarching concern with sovereign equality. This principle of international order is of ‘distinctive worth to weak states’, as strong states have the political and economic clout to protect their entitlements,

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interests and values (Roth 2011, 15). Positioned at the bottom of the international hierarchy, many African states and the AU accuse the ICC of being used by strong states against the weak. International justice, they point out, has a ‘structurally unequal problem’ (AU 2017a, 11). The indictment of al-Bashir prompted African states to legitimise their interests and grievances towards the ICC in terms of this powerful language of sovereign equality and an associated critique of world order. Their targets – the singling-out of Africa, the abuse of Security Council privileges and the violation of sovereign immunity – mobilised the Pan-African solidarity norm. States publicly displayed their unity and committed to non-cooperation with the ICC in the cases against al-Bashir and, later, Kenyan and Libyan leaders. At stake, they asserted, was nothing less than the need ‘to preserve and safeguard the dignity, sovereignty and integrity of the continent’ (AU 2009g, para. 12). As international relations scholars have often been slow to appreciate, sovereign equality is for weak states a language of morality as well as power (see Conclusion, this volume). Dignity, fairness and mutual respect have been the watchwords of a backlash directed against ‘judicial imperialism’, ‘neo-colonial[ism]’ and the Western attempt to ‘civilize’ Africa (Jean Ping, cited in Welz 2013, 436). Practices of universal jurisdiction have been similarly depicted as a ‘moral injury’ (DRC, cited in ICJ 2002, 9). Sovereign equality is a matter of justice, rather than its antithesis. It is a different form of international justice, however, associated not with antiimpunity and individual accountability, but with participation in world affairs, respect for weak states and the absence of ‘judicial and political bullying’ (Louise Mushikiwabo, cited in Wallis 2006, 220). While states have committed to this language and its practical implications, many are currently wary of the strongest backlash response: collective withdrawal from the Rome Statute. They continue to engage with the ICC and attend the meetings of the Assembly of States Parties. Moreover, in May 2014, Security Council members Chad, Nigeria and Rwanda voted in favour of a draft ICC referral of the Syrian conflict sponsored by 65 states (UN 2014). Did this support for a referral signify a second rupture, a return to accountability, and a move away from impunity? Such an interpretation would be difficult to square with these three countries’ support for the Malabo Protocol and subsequent participation in preparing the ICC Withdrawal Strategy. Just as African

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states’ earlier creation of the Court had not simply been a matter of advocating individual criminal responsibility, their current backlash is more than a demand for impunity. Today’s support for deferral, reform and exit also enacts Africa’s sovereign equality, lashing back at initiatives that threaten its precarious place in the world.

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1 Introduction The demise of the Southern African Development Community (SADC) Tribunal is perhaps the most dramatic in the history of international courts. The SADC Summit, comprised of heads of state, reacted to the Tribunal’s first major ruling by effectively suspending it (in 2010) and then formally dissolving it (in 2011). In 2012, the Summit unanimously agreed to formally remove the Tribunal’s human rights mandate, ignoring donor criticisms, non-governmental organisation (NGO) pressures and a public campaign fronted by Nobel Laureate Desmond Tutu (Fabricius 2012; House of Commons 2011; R Lee 2012; Sasman 2012b). Neither individuals nor SADC organs can now approach the Court, and when the restructured Tribunal commences operations it will only be able to resolve disputes between member states. From a contemporary international legal perspective, this extraordinary situation ‘beggars belief’ and ‘is contrary to the very essence of regional economic integration’ (Naldi and Magliveras 2016, 145). Previously, only one operational international court had ever been eliminated by backlash. This was the first Central American Court of Justice (1907–1918), the first ever permanent court to allow individual access with compulsory jurisdiction over member states (Cortado 2013; Madsen, Cebulak and Wiebusch 2018, 204). Those campaigning to save the Tribunal soon explained its demise by pointing to the authoritarian instincts of Southern African states. Tribunal Judge Ariranga Pillay, for example, described the decision to dissolve it as ‘worthy of potentates and kings who can do no wrong and who are not accountable for their actions’ (cited in Christie 2011). Lawyers and litigators, meanwhile, speculated about the possible threats that the Tribunal posed to domestic political interests. They wondered whether Malawi might have feared lawsuits defending lesbian, gay, bisexual and transgender (LGBT)

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rights, or if Botswana might not have been concerned about indigenous rights cases such as those that had proved so controversial in its domestic courts. Some academic analysis has simply turned this speculation into fact.1 Only Laurie Nathan (2013) has paid serious attention to the normative context in which the Tribunal made its decisions.2 Rightly, he has pointed to the unusual power of regional norms such as ‘regime solidarity’ and ‘respect for sovereignty’ that allowed states opposed to the Tribunal to legitimate their actions (see Introduction, this volume). This explanation, however, raises as many questions as it answers. Our goal in this chapter is to resolve these difficulties within the framework proposed by this book. The first problem with stressing respect for sovereignty, as opposed to sovereign equality, is that it prevents us from understanding why the Tribunal was created in the first place. Nathan (2013, 882) himself is aware of this difficulty, and speculates that donors must have used their ‘leverage’ over SADC budgets to pressure member states into accepting (supposedly) supranational institutions.3 As the first part of the chapter will show, however, Southern African states actually used ‘extraversion’ tactics to pre-empt donor pressures. They conceded sovereignty to the Tribunal in the 1990s in order to cultivate images of themselves as rule-of-law-respecting states and to maintain aid dependency. The second problem with approaches such has Nathan’s is that they fail to help us understand why one particular ruling has proved so inordinately contentious and has elicited the most successful backlash in the history of international courts. In this book, we argue that backlash against regional courts has followed rulings undermining states’ primary legitimations (see Introduction, this volume). The second section of this chapter thus shows how the Tribunal ruling in Campbell (2008) proved fatal because it fell foul of a deepening regional consensus governing the issue of land – a consensus promoted by activists in South Africa and (especially) Zimbabwe. Third, and finally, we will argue that stressing sovereignty alone makes it mysterious why states have done so little to reclaim sovereignty in other areas. One practical consequence of Campbell and its aftermath has been that some states have revised bilateral investment treaties (BITs) and international investment codes so that international arbitration panels can no longer determine aspects of their policy. But outside of South Africa’s idiosyncratic circumstances, these revisions have been reactive and ad hoc. They have not resulted

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from normative pressures or any wider political project to regain control over governance of the economy. 2 Extraversion SADC was founded in August 1992, during the post-apartheid transition.4 It replaced the Southern African Development Coordination Conference (SADCC), established in 1980. This organisation’s main achievement had been to divert trade from areas affected by South Africa’s ‘destabilisation’ of its neighbours (Gibb 1987; Hanlon 1989). All states under majority rule were members, but it had been founded by the Frontline States (Angola, Botswana, Mozambique, Tanzania, Zambia and Zimbabwe) – a group created in 1975 to force unity between the various nationalist movements fighting to liberate Zimbabwe (NdlovuGatsheni 2011, 9). The SADCC’s institutions had been decentralised and sovereignty-preserving, with each member state responsible for coordinating development projects in a particular area. Disputes that could not be ‘settled by negotiation, conciliation or other means’ were to be ‘referred to the Summit’, comprised of heads of state (Mtengeti-Migiro 1992, 61–62). No court was envisaged. The SADCC’s arrangements were idiosyncratic and represented the first systematic rejection of orthodox regional integration theory by any group of Third World nations (Gibb 1995, 223–224). Yet during the Cold War, donors did not endorse global scripts. They even praised the SADCC. In 1988, the World Bank Vice President for Africa, Edward Jaycox, labelled it a ‘functioning example of how regional cooperation in Africa might work’, while the British Minister for Overseas Development, Chris Patten, declared that to ‘support SADCC is to support success’ (cited in Ramsamy 1995, 201). After the Cold War and apartheid, however, senior SADCC figures immediately understood that new and more prescriptive donor agendas now needed to be catered for. They did not wait for donors to apply ‘leverage’. Foreign agencies had provided over 90 per cent of the organisation’s funding (Ramsamy 1995, 202). Sweden was the leading donor and Nordic aid (overwhelmingly dedicated to anti-apartheid activities) had exceeded the inflow of commercial capital to the region (Odén 1993, 226–227). By 1990, threats to this revenue were obvious (Tostensen et al. 1990, 33–34). The SADCC’s Zimbabwean Executive Secretary, Simba Makoni, spoke candidly of why extraversion tactics might be required:

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[S]upport from the international community has not really come to us on our own account. It has come to us as sympathy support against apartheid … So while one appreciates the amount that we have been receiving, the spirit behind the figures is not a very comforting one, because if it remains the basis for that support, when apartheid goes, then so will the funds go with it. (cited in Ramsamy 1995, 202)

Radical ‘economic liberation’ rhetoric retreated along with Scandinavian aid (compare SADCC 1981 with SADCC 1992b). Tracking the changed preferences of its new principal donors, led by the European Economic Community (EEC), the SADCC soon endorsed more orthodox forms of economic integration as cures for Africa’s economic woes (Lavergne and Daddieh 1997, 105; SADCC 1992a, 8–9). It was not immediately obvious, however, that any revamped organisation would include an equivalent of the European Court of Justice (ECJ). In 1991, SADCC officials preferred an ‘arbitration tribunal or a committee’, the two alternatives then being considered for the General Agreement on Tariffs and Trade (GATT) (Duina and Lenz 2016, 792–793; Mtengeti-Migiro 1992, 153, n. 17). This position changed dramatically at the SADCC’s 1992 consultative conference. The conference’s theme document, partly drafted by European experts, proposed an ECJ-style institution that even ordinary citizens could approach: a mechanism of ‘mediation and arbitration, to which all agents of integration – governments, business, civil associations and individuals – can seek justice’ (Duina and Lenz 2016, 792–793; Lenz 2012, 165). The extraversion strategies behind this recommendation were alluded to in the document itself. While ‘international political and material support for SADCC’ had been ‘predicated on the anti-apartheid struggle’, future external assistance would depend upon ‘policy reforms’. Without mentioning a court, European donors stressed that aid would become conditional on ‘necessary political decisions’ and ‘renouncing part of … sovereignty’ (SADCC 1992a, 19, 137, 145). Heads of state swiftly pre-empted such conditionality, claiming to have ‘draw[n] important lessons’ from the EEC’s Maastricht Summit (SADCC 1992a, Introduction, 50). Six months later, the 1992 Windhoek Treaty relaunched the SADCC as SADC. A regional Tribunal would be among ‘the central intergovernmental organs’ of the new Community, despite there having been effectively no regional debate about whether

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such court promoted interregional trade (Duina and Lenz 2016, 793). Even within South Africa’s African National Congress (ANC), which was already universally recognised as the most powerful force in SADC, debate about the various options had ‘scarcely even begun’ (Davies 1993, 83). Indeed, as Lenz (2012, 165) notes, ‘when the decision was taken to establish a Tribunal with the Windhoek Treaty, no real discussion on the costs and benefits of different options had taken place at the regional level’. States had not pursued their national interests, at least as traditionally understood. In 2011, Zimbabwe’s Minister of Justice argued that post-1992 negotiations left the SADC Tribunal without the ‘DNA imprint’ of member states (Zvayi 2011). The evidence largely supports his assertion. South Africa was the first and only state to develop a distinctive public position. In October 1993, the ANC called for a dedicated ‘Regional Court of Human Rights’ and even a ‘Regional Mutual Security structure, to enforce and protect human rights’ (African National Congress Department of International Affairs 1993). Six months later, however, when the new post-apartheid government had finally officially joined SADC, the ANC’s desire to protect its new Constitutional Court caused it to become suspicious of all such institutions (Lenz 2012, 166). Three years later, meanwhile, during the first discussions over the Tribunal Protocol, SADC states rejected calls by two legal experts – including a judge from the ECJ – for ‘an embryonic form of human rights jurisdiction’ (Hulse and van der Vleuten 2015, 89; Viljoen 1999, 200). The final Protocol, signed in 2000, created an institution more like the ECJ itself than a human rights court. It established a court with private access rights, exclusive competence to constitutional review, and a preliminary rulings procedure lifted entirely from the European Union’s (EU) Treaty of Rome (Lenz 2012, 167). There is little evidence therefore that the Tribunal was the product of aid conditionality or direct EU pressures (Lenz 2012, 163). Nor did its precise form reflect the lobbying efforts of regional NGOs. Between 1994 and 1997, at the height of liberal post-apartheid optimism, there had indeed been considerable mobilisation around the question of a court for SADC. Zimbabwean lawyers and human rights organisations were central to these networks, as they are today – with involvement from soon-to-be leading opposition politicians such as Welshman Ncube and

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David Coltart (interviews with SALC and SADC Lawyers’ Association staff, 30 April and 3 May 2012; see also Nyika 1996, 743). In 1996, after 18 months of internal consultations and meetings with ministers and SADC officials, these NGOs produced a draft human rights charter for the region, which was to be applied by a dedicated human rights court (Nyika 1996, 743; Viljoen 1999, 201). As already noted, however, member states rejected this option, preferring instead to emulate the ECJ. One inevitable consequence of these extraversion strategies was shoddy statecraft. The 1992 Windhoek Treaty was notable for both its ‘poor drafting’ and eager repeating of the ‘global script’ of human rights (Cowell 2013, 156; Matyszak 2011, 3, n. 22). Despite states being opposed to a dedicated human rights court, they nonetheless added 21 direct and indirect references to such rights to the new Community’s Protocols (Cowell 2013, 155). Even before judges began interpreting these references in ‘activist’ ways, regional NGOs had noted how they allowed for human rights litigation (interviews with Zimbabwean human rights activists, Harare and Johannesburg, April–May 2012; Hulse and van der Vleuten 2015, 92; Musarurwa 2010, 11). As argued by Judge Ariranga Pillay, once president of the Court, regional leaders had simply failed to protect their interests when drafting the Treaty. They never ‘process[ed] all the implications of a SADC Tribunal’. Their goal for the institution was simply ‘to get funds from the European Union and others’ by giving off ‘all the right buzz words, you know, “democracy, rule of law, human rights”’ (cited in Christie 2011). Formal sovereignty had been sacrificed on the altar of extraversion (cf. Brown 2013). The ratification process, meanwhile, was lengthy and haphazard. This was perhaps unsurprising, however, given SADC states’ reluctance in the mid-1990s to actually implement the Windhoek reforms, post-apartheid extraversion having (temporarily) constrained donors’ once ‘barely concealed eagerness’ to withdraw funding (Davies 1993, 184). Institutional reform only returned to the SADC agenda in 1999, thanks to the contingencies of high politics. Eager to intervene in the Democratic Republic of the Congo (DRC), Zimbabwe’s President Mugabe had hoped to detach SADC’s Organ on Politics, Defence and Security Cooperation from the rest of the organisation (Nathan 2012, 42). The Summit defused the tensions this created by agreeing to review the Organ’s role, but only if it could be looked at as an ‘integral part of the SADC’ (Meyns 2001, 77).

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This unplanned reopening of the SADC ‘reform debate’ amounted to a dramatic ‘volte-face’: a shift only made possible by the ‘highly personalized’ nature of foreign policymaking in the region (Meyns 2001, 76–77; see also Chabal 2009, 40; Ndlovu-Gatsheni 2007, 60–61). It allowed donors and reformers in the Secretariat a fresh opportunity to advocate centralised institutions (Isaksen and Tjønneland 2001, 4). A number of bilateral donors, critical of SADC’s inefficiency, eventually started withdrawing aid (Tjønneland 2006, 18–20). European Commission (EC) contributions now easily surpassed all others, including those of member states. It soon decided to continue its support but resolved, inter alia, to ‘monitor the implementation of SADC protocols and [...] the Establishment of a SADC Tribunal’ (Oosthuizen 2006, 181; Tjønneland 2006, 18–20). It was in this context that the drafters of the new Tribunal Protocol (signed in 2000) began worrying ‘they might never get the nine ratifications needed to get the Protocol binding’ (Hulse and van der Vleuten 2015, 89). Only Botswana had complied (compare Isaksen 2002, 82 with Hulse and van der Vleuten 2015, 89). Without NGO pressures, these drafters produced an Amendment Treaty circumventing ratification. Although SADC ministers agreed there was now ‘no further requirement for individual member states to ratify the Protocol’, Namibia, Mauritius and Lesotho somehow did so nonetheless, ‘dutifully complying’ with a ‘redundant formality’ (Hulse and van der Vleuten 2015, 89; Matyszak 2011, 11). Ratifying SADC states, in short, had once again prioritised the sending of signals to international actors over the safeguarding of their sovereignty. 3 The Demise of the SADC Tribunal By August 2007, the Tribunal was finally staffed and ready for business.5 Fatefully, however, this opening coincided exactly with the internationalisation of legal struggles surrounding the famous ‘land question’ in Zimbabwe. These struggles would immediately set the Tribunal on a collision course with norms of legitimate statehood in the region. In Campbell (2008), white farmers approached the Tribunal for redress at a fateful moment: just when Southern African anti-imperialist activists and intellectuals had succeeded in turning the illegitimacy of white settler colonialism into the symbolic centrepiece of an increasingly salient ‘liberation narrative’. These strengthening norms would ultimately prove even more powerful than Southern African elites’ famous commitment

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to regime solidarity. They would allow Zimbabwe to legitimate a series of diplomatic manoeuvres designed to disable the Tribunal. As a result, states in the region became vocal about the same sovereignty they had so conspicuously failed to safeguard in the preceding period. 3.1 Historical Background The British colony of Southern Rhodesia inherited a ‘dual system’ of land tenure from Cecil Rhodes’ British South Africa Company. Africans had no title to land and many were confined to so-called Native Reserves. The Land Apportionment Act 1930 codified these arrangements, awarding 51 per cent of the country’s (most fertile) land to less than 3,000 white farmers (see International Crisis Group 2004, 21–23). This segregation only intensified following Rhodesia’s 1965 Unilateral Declaration of Independence. By 1978, 40 per cent of land in Zimbabwe belonged to white farmers. Less than 4 per cent of the population were white. Africans could not own land privately (see Alexander 2006, 83–104). The country’s national liberation movements had hoped to radically reform this situation after taking power. In 1980, however, they acceded to a democratic transition significantly below their initial expectations. Zimbabwe’s independence constitution entrenched property rights for 10 years, while the decade that followed saw a series of administrative orders gazetting land defeated in the courts on procedural grounds. These cases were usually funded by a Commercial Farmers’ Union (CFU) legal defence fund established for the purpose (e.g. Pilossof 2012, 33–34). Some ruling-party technocrats then complained that the higher courts were imposing overly restrictive conditions on land redistribution (e.g. Alexander 2006, 181). By the late 1990s, however, Zimbabwe African National Union – Patriotic Front (ZANU-PF), the ruling party, faced economic crisis and a serious electoral threat. Faced with becoming the first ex-liberation movement in the region to lose power, it abandoned its self-presentation as a modernising regime committed to rational–legal norms. In their place, it adopted a (not wholly unsuccessful) anti-colonial legitimation strategy commonly labelled ‘patriotic history.’ This presented the Zimbabwean nation as the resistant victim of more than a century of imperialist aggression (Ranger 2004; Tendi 2010). It also encouraged the forcible expropriation of commercial farmland – no longer considered as simply a national economic asset – and justified authority in rural areas on nationalist and (in places)

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traditionalist grounds (e.g. Mkodzongi 2016). Court rulings against these expropriations were ignored but retrospectively rationalised via legislation (Alexander 2006, 180–198). 3.2 Campbell It was the most significant of these legislative rationalisations – the Constitutional Amendment Act No. 17 (2005) – that finally separated the CFU from a significant constituency of farmers. The government now explicitly forbade return to expropriated farms, and the CFU was no longer willing to mount legal challenges in the Supreme Court, whose bench had been dramatically overhauled after ruling in farmers’ favour (Pilossof 2012, 54–55). A splinter group led by English-born Ben Freeth began challenging the expropriation of their farms, and land reform as a whole, internationally. First, they exhausted domestic remedies. They challenged the constitutionality of Constitutional Amendment Act No.17 in the Zimbabwean courts, fully expecting (correctly) to lose (interview with D Drury, 4 April 2012; interview with B Freeth, 5 April 2012). By doing so, however, they were able to bring the case before the soon-to-be-opened SADC Tribunal in Namibia, one of a new generation of African international courts that possessed compulsory jurisdiction and allowed individual petition (Alter 2014a, 82–84). The Campbell case in Windhoek centred around three issues: (1) the legality of a clause in Amendment 17 ousting court jurisdiction; (2) the necessity for farmers to be compensated at a ‘fair’ rate; and (3) the question of whether Fast-Track Land Reform (FTLR) as a whole amounted to racial discrimination. This last point constituted a direct challenge to a central component of ZANU-PF’s ‘patriotic history’ legitimation strategy. When the case was heard in July 2008 the Government of Zimbabwe (GOZ) tried, repeatedly, to delay proceedings. Eventually, Judge President Luis Antonio Mondlane dismissed these attempts, declaring that ‘we are trying to build a house of justice in this region’. The GOZ’s lawyers walked out of court, and to their dismay the judges proceeded to reject their assertion that FTLR constituted a legitimate ‘public purpose’ in the special circumstances of a postcolonial state, reasoning that: [W]e wish to observe here that if: (a) the criteria adopted by the respondent in relation to the land reform programme had not been arbitrary but reasonable and objective; (b) fair compensation was paid in respect of the

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expropriated lands, and (c) the lands expropriated were indeed distributed to poor, landless and other disadvantaged and marginalized individuals or groups, rendering the purpose of the programme legitimate, the differential treatment afforded to the Applicants would not constitute racial discrimination. (cited in Zongwe 2009, 23)

An interim injunction ordered the GOZ ‘to take all necessary measures through its agents to protect the possession, occupation and ownership of the lands of the Applicants’, and to pay ‘fair compensation’ to those expropriated.6 3.3 Backlash The Zimbabwean state’s first public attacks on the Tribunal’s authority were couched in technical terms. The Zimbabwean Deputy Chief Justice denounced the Tribunal’s claims to jurisdiction in a dramatic speech marking the opening of the legal year 2009 (The Herald 2009). In July, Minister of Justice Patrick Chinamasa began trying to persuade the SADC ministers of justice and attorneys general that they had illegally circumvented ratification requirements when creating the Tribunal (Cowell 2013, 159; Hondora 2010; Matyszak 2011, 3, n. 18). This was despite the fact that Zimbabwe had in the interim sent a judge (Antonina Guvava) to this supposedly illegal court (Hansungule 2013, 137). In September, the SADC Summit of the Heads of State directed the ministers of justice to hire an external consultant to respond to Chinamasa by reviewing ‘the roles, responsibilities and terms of reference of the Tribunal’. This alerted the Tribunal and its supporters to the political threat behind the technical objections. As its Registrar has recalled, ‘panic buttons were then and there pressed’ (SADC Lawyers’ Association 2016, 23). Simultaneously, moreover, ZANU-PF was making it clear in private that Campbell was an obstacle to ‘patriotic history’. A leaked cabinet memo from July 2009, a summary of which was then itself leaked by WikiLeaks, reported that: Cabinet dismissed the order [in Campbell] and noted that the [interim] injunction, ‘the effect of which was to reverse the sacrosanct land reform programme, amounted to blatant negation of the country’s history and it’s liberation struggle’, and did not override Zimbabwean law. The Cabinet asserted that the country’s laws relating to land ‘should

66 | A F R I C A A N D T H E BAC K L A S H AG A I N S T I N T E R N AT I O N A L CO U R T S remain in force’ and left further ‘interface’ with the SADC Tribunal to the Minister of Justice … The memo directed the police to disregard the SADC injunction, based on the Cabinet position that the injunction was a result of Western interference and … grounds a basis for the enemy to fight on because it has been proven to be worth it by a SADC body. (US Embassy (Harare) 2008)

Within a month, Chinamasa had informed the Tribunal that Zimbabwe ‘would not appear before [the Tribunal] anymore, and neither would Government be bound by any decisions already made or future ones emanating from there’ (cited in Alter, Gathii and Helfer 2016, 310). In the run-up to the 2010 SADC Summit, ZANU-PF began making these political arguments at the regional level, arguing that the Tribunal had become a tool of Western imperialism in the subregion. Alter, Gathii and Helfer (2016, 306–318), however, downplay the importance of these persuasion tactics and legitimation strategies. Instead, they suggest that Zimbabwe was only able to neutralise the Tribunal through what they call ‘Mugabe’s “Plan B”’: a ‘multi-year strategy’ of ‘starving the Tribunal by blocking judicial renewals and appointments’. They point out, rightly, that SADC’s informal rule that decisions must be made by consensus played into the hands of ZANU-PF. In 2009, Zimbabwe had withdrawn its only judge from the Tribunal, and now in 2010 its vote alone sufficed to block the reappointment of five SADC judges whose terms were about to expire. This would soon leave the Tribunal with four judges, not enough to hear new cases. This amounted to an effective suspension. Again, the Summit commissioned an external review of the Tribunal’s powers, which concluded that the Tribunal was legally constituted and should be allowed to reappoint judges unless the Summit chose to replace them. These recommendations were endorsed by an impressive Save the SADC Tribunal NGO coalition, including Botswana and Namibia’s most influential human rights organisations, the International Commission of Jurists, the Open Society Justice Initiative (funded by the Soros Foundation) and the SALC (funded by the Soros Foundation and the International Bar Association) (see also SADC Lawyers’ Association 2016, 23). These NGOs helped persuade the ministers of justice and attorneys general to ask the 2011 Summit to reappoint the Tribunal’s judges. These requests were rejected, however, and the Summit even

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announced a continued ‘moratorium’ on new cases. More lobbying in the run-up to the 2012 Summit helped convince the ministers to endorse a compromise proposal that made future human rights lawsuits harder to bring, while keeping Campbell and existing judgments in force. Even this compromise was, however, rejected. The heads of state ordered that the Tribunal Protocol be amended so that individuals were no longer allowed to approach it. According to Alter, Gathii and Helfer (2016, 317–318) President Mugabe’s ‘strategy had forced the other member states to accept stripping private access as the price to be paid for resurrecting the subregional court’. These other SADC countries had not therefore been persuaded. Although these authors concede that Zimbabwe’s land question was an ‘incendiary’ issue and that ‘land rights may well be a third rail of postcolonial politics in Africa’, they insist that ‘without Mugabe’s intransigence, one of the many compromise proposals could well have succeeded’. On this view, a fatal combination of authoritarianism and unfortunate institutional design was thus responsible for the demise of the SADC Tribunal. 3.4 Legitimation There are good reasons to believe, however, that the normative context in which heads of state deliberated cannot be so easily de-emphasised. First of all, differences between heads of state and their ministers of justice were consistent enough across the region to give little reason to believe that a Tribunal upholding Campbell could ever have been saved, even without SADC’s informal requirement for consensus. Representatives of the organised legal profession in SADC have, for one, always insisted that it is regional leaders as a whole, rather than Zimbabwe in particular, who must be ‘sensitised’ over the Tribunal (e.g. interview with M Makonese, 30 April 2012; see also SADC Lawyers’ Association 2016, 30). Since 2012 they have tried to pressure these leaders to resurrect the Tribunal through domestic litigation challenging the legality of the Court’s suspension and eventual restructuring. Regional governments’ lawyers have however made them ‘understand that the decision to suspend the Tribunal was not a legal but political decision and as such advocacy initiatives must be political in nature and not legalistic’ (SADC Lawyers’ Association 2016, 19). Following President Mugabe’s

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departure in the famous 2017 ‘coup that was not a coup’, they have focused this advocacy not just on new Zimbabwean President Emmerson Mnangagwa, but also on the relatively recently sworn-in presidents of Namibia, Tanzania and Botswana (Hage Geingob, John Magafuli and Mokgweetsi Masisi). Nicole Fritz (2012, 5), director of the SALC, has gone further. She has suggested that in fact, only Mozambique – still very donor-dependent and relatively immune from domestic pressures on its land question – resisted ‘collusion’ against the Tribunal at the Summit in 2012 (see Alden and Anseeuw 2009, 165–173; Niño and le Billon 2014). Its ‘lonely backing’ came to nothing, however, and in public even Mozambican President Guebeza was consistently non-committal (see AIM 2010; Jonas 2013, 314).7 This public support for Zimbabwe is partly explicable by the norms of regime solidarity and anti-imperialism highlighted by Nathan (2013, 884). These were norms ‘forged in blood’ during the 1970s and 1980s as the Frontline States created the SADCC to unify the forces fighting apartheid and minority rule. In 1992, the new SADC Treaty continued to list ‘sovereign equality of all member states’ [emphasis added] as the organisation’s first guiding principle, even as it added new sovereigntycompromising references to the rule of law and human rights (SADC 1992, 5). Indeed, SADC leaders have been perhaps even more reticent than their AU counterparts to criticise each other’s conduct (see generally Tieku 2012). Between 2000 and 2008–2009, ZANU-PF, risking electoral defeat, violently repressed its political opposition. As Nathan (2013, 885) points out, however, Summit communiqués not only refused to criticise Zimbabwe on this score, but actually expressed support for its leadership. A 2003 statement, issued at a time of intense repression, ‘re-affirmed the indivisibility of SADC and solidarity with Zimbabwe’. Such praise was not required by informal rules on consensus decision-making, rules that were themselves in any case products of regime solidarity norms. Some of the strongest expressions of solidarity with ZANU-PF came, indeed, from old rivals, an illustration of a phenomenon that Sabelo Ndlovu-Gatsheni (2011, 5) describes as the ‘reinvention of histories and reframing of relationships by former liberation movements to create an impression of historical closeness, regardless of whether none existed in the past’. President Mugabe, for example, had been the only SADC leader

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not to attend Namibia’s independence celebrations in 1990. Yet today, Namibia’s ruling South West African People’s Organisation (SWAPO) Party has become one of ZANU-PF’s closest allies in the region. In the late apartheid era, similarly, ZANU-PF had been obliged to prevent ANC guerillas from operating from its territory – a means of protecting itself from South African invasion. It was aligned not with the ANC, but with the Pan-Africanist Congress, a fellow recipient of Chinese support (Mlambo 2016, 33–34). Yet in 2008, during the worst of Zimbabwe’s post-electoral crises, SADC leaders could be found telling diplomats that only outgoing President Thabo Mbeki of an ANC-led South Africa could talk to Mugabe (e.g. US Embassy (Dar-es-Salaam) 2008b). Mugabe had dismissed the first SADC mediator – Lindiwe Zulu, the international relations advisor to incoming South African President Jacob Zuma – as a ‘stupid idiotic woman’ and a ‘little streetwalker’ (Mlambo 2016, 30). President Mbeki’s ‘quiet diplomacy’ would famously produce a powersharing agreement that was later much criticised internationally for favouring the government over the opposition Movement for Democratic Change (MDC). All of this points, of course, to the particular status as patriarch accorded to Mugabe by his former ‘brothers in arms’ turned ‘Fathers of the Nation’ (e.g. Alao 1994; Melber 2009, 456–458). This they accorded him ‘first as an elder statesman and second as the most educated among them’ (Hansungule 2013, 145). During SADC Summits, leaders were even ‘said to queue for advice’ from the Zimbabwean leader – a form of special treatment that Patrick Chabal (2009, 40) saw as ‘speak[ing] to the attributes of the politics of age’ in the region (Hansungule 2013, 145).8 Alter, Gathii and Helfer (2016, 317) do acknowledge that Zimbabwe’s ‘political influence in the SADC’ was ‘elevated by Mugabe’s prominence as one of Africa’s longest-serving leaders and his anti-colonial bona fides’. But they do not relate this influence to features of the political culture of former liberation movements accentuating regime solidarity’s effects. President Mugabe succeeded, meanwhile, in connecting solidarity norms with a broader anti-imperialist agenda, locating the land question ‘within a discourse of legitimate redress for colonial injustice, a language which has resonated on the African continent and within the third world more generally’ (Phimister and Raftopoulos 2004, 385, cited in NdlovuGatsheni 2011, 6; for strategic linking of norms, see Sikkink 2011,

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106–108). Even those states privately critical of Zimbabwe have thus had to marry their criticisms with attacks on Western sanctions against ZANU-PF. The 2002 Luanda Summit chaired by Angolan President dos Santos discretely replaced Zimbabwe with Tanzania as deputy chair (a position that usually leads to chairmanship). But dos Santos nonetheless simultaneously called for sanctions to be renounced (Adolfo 2009, 24). Even President Khama of Botswana – Mugabe’s strongest critic – called for their removal on a state visit to South Africa in 2010 (Mail & Guardian 2010). After Campbell, funding for the SADC Tribunal from those Western powers responsible for sanctions was highlighted by numerous articles in Zimbabwean state-owned media, not only in The Herald (circulated in Zimbabwe), but also in The Southern Times, a newspaper circulated throughout the region and run as a joint venture between the Zimbabwean High Commission to Namibia and the Namibian stateowned New Era (Gray 2013, 17; Melber 2014, 171). The Angolan Minister of External Relations, Georges Rebelo Pinto Chikoti, picked up on this theme in the run-up to the 2011 Summit, declaring that ending donor funding for the Tribunal would bring ‘necessary transparency in its work and deliberations’ (The Namibian 2011). Even voices in the regional media critical of ZANU-PF have criticised international engagement with land reform as a form of ‘economic sabotage’ and ‘regime change in Zimbabwe’ (Alden and Anseeuw 2009, 174). And as Alter, Gathii and Helfer (2016, 324) note, donor funding for leading NGOs in the Save the SADC Tribunal coalition has made them ‘easy targets for political leaders like Mugabe, who [could] discredit them as thinly veiled fronts for Western nations seeking to interfere with the internal politics of African nations’. 3.5 Land Regime solidarity and anti-imperialism are, however, only partial explanations (contrast Nathan 2013). Some states had very occasionally been willing to take public stances against President Mugabe: Botswana under Ian Khama and (to a lesser extent) Tanzania under Jakaya Kikwete.9 But when it came to the land question adjudicated by Campbell, even these isolated critics showed solidarity with Zimbabwe. Revealingly, indeed, these states were the only ones to signal their support for neutralising the Tribunal before the 2012 Summit. It is difficult to imagine ministers of justice having

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any chance of persuading the Summit to accept a ‘compromise’ proposal upholding Campbell when the opposition to their proposals was led by the only leaders previously willing to take public positions against ZANU-PF (cf. Alter, Gathii and Helfer 2016, 318). Before the SADC Tribunal crisis, both Ian Khama and Jakaya Kikwete had taken more assertive stances on Zimbabwe than their predecessors. In the early 2000s, Festus Mogae of Botswana had ‘been more forthright than other Southern African leaders in criticising the undermining of legal and constitutional structures by ZANU-PF’. ‘By end 2005’, however, ‘the president had changed his tone considerably’ (Alden and Anseeuw 2009, 166, 169; BBC News 2001). This shift coincided with rising popular resentment at the small group of white Zimbabweans who had begun commercial farming in the country, and also reflected President Mogae’s new embrace of Chinese aid and critique of Western donors (whom he accused of disregarding the pluralist values of international society) (Alden and Anseeuw 2009, 170; Sunday Standard 2006; see more generally Solway 2009). Since assuming power in 2008, however – during Zimbabwe’s violently disputed elections – new Botswanan President Ian Khama embraced a new mode of ‘megaphone diplomacy’. He immediately called for Mugabe to be removed from power, and may even have (unsuccessfully) approached the United States (US) for arms. In 2013, he alone among SADC states called for Zimbabwe’s 2013 elections to be audited (Malila and Molebatsi 2015, 6–12; Ntibinyane 2013). Similarly, Benjamin Mkapa (Tanzanian president 1995–2005) had been unwavering in his support for Mugabe, underlining ties between his political party and ZANU-PF that dated back to the liberation struggle (NdlovuGatsheni 2011, 6–8). As Zimbabwe’s political crisis deepened, however, his successor, Jakaya Kikwete, became increasingly vocal in his criticisms. In 2011, Sabelo Ndlovu-Gatsheni (2011, 6) wrote of how he ‘belongs to a different generation from that of Mugabe and models himself as a democrat. Accordingly, he has openly criticised the dictatorship in Harare’. Kikwete was also very far from being obsessed with national sovereignty: his presidency saw Tanzania become only the fourth country to allow individuals and NGOs direct access to the new African Court on Human and Peoples’ Rights (ACtHPR).10 Nonetheless, immediately after Campbell, it was Kikwete who was famously reported to have declared, ‘we have created a monster that will

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devour us all. Can our Ministers of Justice make sure that this monster is destroyed before it devours us all?’ This was while Kikwete was serving as Chairperson of the African Union (AU) and was complaining to Western diplomats that Mugabe was branding him as an agent of imperialism (Sasa 2009; US Embassy (Dar-es-Salaam) 2008b). Khama, meanwhile, was also resolute and outspoken in his opposition to the Tribunal (Fritz 2012, 5). Both leaders thus carefully exempted FTLR from their general criticisms of the Zimbabwe situation, and Kikwete was especially willing to adopt ZANU-PF’s framing of the programme in terms of anti-colonial ‘patriotic history’ (The Herald 2006; Tanzanian Affairs 2006). The SADC Secretariat itself, similarly, legitimated its support for backlash in terms of land and its symbolic politics rather than any more diffuse notions of regime solidarity. As Alter, Gathii and Helfer (2016, 313, 320) note, between 2010 and 2012, the Secretariat became increasingly aligned with Zimbabwe’s position, with some Tribunal supporters even accusing it of doctoring Summit communiqués. Deputy Secretary General Joao Caholo – an SADCC veteran – provided a rationale for this stance in mid-March 2011, well before President Mugabe’s ‘Plan B’ could have made the Tribunal’s suspension a fait accompli. An interview he granted the Zimbabwean journalist Edson Gutu (2011) included the following exchange: QUESTION: About the SADC Tribunal’s alleged suspending after a ruling made in favour of Zimbabwe’s aggrieved farmers … Now. Let me first underscore the fact that the land issue is a very sensitive issue. It has to do with ownership, it has to do with the past. It has to do with the process that led to the liberation of Zimbabwe. It has to do with, probably the future of Zimbabwe in particular. But let me also state that the land issue is not only particular to Zimbabwe or Southern Africa. It is probably, or it can probably be applied to all African countries.

Caholo concluded that: [T]he issue of land in Zimbabwe is not legal only, it is also political … and that is not the mandate of the Tribunal to judge … Even in the country that I come from – in Angola, the issue of land has not been addressed properly, and it is political. You cannot disown me, a native of that piece of land in the name of justice. You cannot!

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Caholo’s analogy with the Angolan situation was indicative of the renewed power of nationalist ideas in Southern African land governance. Chris Alden and Ward Anseeuw (2009; 2010) have shown how Zimbabwean reform triggered a normative shift that then narrowed the scope for treating land as merely legal property or an economic asset. During their armed struggle, Southern Africa’s nationalist movements had made bold promises to rural constituencies: ‘the issue of land restitution was, at least rhetorically, the key pillar in the drive to win independence’ (Alden and Anseeuw 2009, 21). In South Africa, Namibia and Zimbabwe, however, they could only obtain power by negotiating with settler colonial governments.11 Achieving independence meant accepting some form of constitutional guarantees for existing distribution of property (e.g. Klug 2000). This compromise saw new liberal–constitutional legitimation strategies sit uneasily alongside a reconfigured set of interlocking nationalist commitments that Alden and Anseeuw (2009, 32) call the ‘liberation narrative’. These commitments comprised a ‘discourse of solidarity’ where ‘the liberation movement is the only rightful and legitimate heir to the colonial state’; a ‘discourse of national identity’ where ‘non-liberation movement parties are de-legitimised’ and ‘the ambiguous position of white settler communities … acts a potent symbol of a living past’; and a ‘discourse of symbolic restitution: (statues, street, city names) … that replace[s] genuine restitution’ (see also Southall 2013, 5–6, 29–43). Thus stated, it is obvious how the ‘liberation narrative … carries with it the seeds of disenchantment as it points to the failings of liberation parties to realise the fundamental aims which inspired the independence movement in the first place’ (Alden and Anseeuw 2009, 33). Zimbabwean land reform starkly exposed this gap between governments’ legitimation strategies and their actual political practice (see Skinner 2002, 149–150). Just as constructivist scholars of ‘norm spirals’ have described, nationalist ‘norm entrepreneurs’ in Southern Africa began holding former liberation movements to their stated commitments.12 They lobbied the governments of South Africa and Namibia and campaigned at regional meetings (Alden and Anseew 2009, 107–108, 140, 143, 173–174; 2010, 265, 273). President Thabo Mbeki of South Africa, for example, was one of the many ANC intellectuals who had never shown much interest in land reform practicalities or the details of rural affairs (see Klug 2000, 125; Walker 2008, 53). And in 2000, he had expressed private concerns

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about FTLR (Alden and Anseeuw 2010, 276, n. 5). But by 2003, under significant public pressure, he was publicly bemoaning how the land issue had ‘disappeared from public view’, its place ‘taken by the issue of human rights’ (Nathan 2013, 885). The slow pace of change in Namibia, where land reform had effectively been stalled since independence, was suddenly thrust into the spotlight (Kaapama 2007; Melber 2005). In short: Southern states came to ignore the pressure of international actors when it contradicted the sources of regional legitimacy and the regional norm on solidarity. Domestic audience costs of taking a harsh public stance on the Zimbabwe question were deemed by governing authorities in Pretoria and Windhoek too high, given the reverberations it would hold for their own domestic land question. (Alden and Anseeuw 2009, 178)

Analysts need not therefore be so surprised that two of the region’s leading democracies were so instrumental in the SADC Tribunal’s demise (contrast Hulse 2012 with Jonas 2013, 313). Both South Africa and Namibia would have found it difficult to justify any proposal for a Tribunal upholding Campbell. In constructivist terms, their governments had ‘self-entrapped’. In Namibia, even the Minister of Justice, Pendukeni Iivula-Ithana, claimed in 2011 that member states were entitled to ‘fine-tune regional bodies’ and that the Tribunal existed to ‘serve us’, a claim later echoed domestically by her successor, Albert Kawana (Cowell 2013, 163; Melber 2012).13 Opposition criticisms focused on procedure, not principle, asking why the government was paying to host a Tribunal that it thought illegally constituted (Sasman 2011c).14 South Africa’s indifference to the Tribunal’s fate was even more shocking to most outside observers. But as early as 2010, its own Minister of Justice and Constitutional Development had reportedly requested a legal opinion about whether a Tribunal decision could be enforced in national courts (Bell 2010). And in 2012, a Department of International Relations and Cooperation spokesman described the Court as ‘neither here nor there’ (Fritz 2012, 5). President Jacob Zuma did not stay for the final Summit decision stripping the Tribunal of its human rights jurisdiction, but no one close to the process believes that his presence would have affected the outcome (see Fritz 2012, 5). South Africa had no motivation to confront Zimbabwe over the issue with all the political

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and legitimation costs this would entail. Unlike in Namibia, the main opposition grouping (the liberal Democratic Alliance) did adopt a position of support in principle, but it has failed to build any wider domestic and regional support (see Bell 2010; Maimane 2018). Once again, in short, backlash cannot simply be explained in terms of authoritarianism and the collective interest of heads of state. Since 2013, meanwhile, it has been a new populist grouping – Julius Malema’s Economic Freedom Fighters (EFF) – that has made the political weather on the land question. Its nationalist norm entrepreneurship has made a liberal politics of land even harder to justify. In 2010, while still president of the ANC Youth League, Malema made his first highly symbolic visit to Zimbabwe. There, President Mugabe instructed him on land reform, noting that while some farmers were trying to overturn his policy using legal means, the SADC Tribunal ‘does not have power over us’ (The Herald 2010; Posel 2014, 41–43). A statement by the Youth League, then near the height of its power, praised Mugabe’s ‘courageous and militant land reform programme’ for showing how it ‘should never sacrifice principle at the alter [sic] of expediency’ (Achiume 2018, 137, n. 74; Beresford 2015, 292). When Malema and his colleagues left the ANC, expropriation of land without compensation soon became the new EFF’s flagship policy (alongside the nationalisation of the mines). This, in turn, increased pressure on the ANC to follow suit. In 2013, Land Reform Minister Gugile Nkwinti, to cheers from ANC parliamentarians, declared it an ‘honour’ to have his work compared with that of Robert Mugabe, despite the relative pragmatism of his own actual approach (South African Press Association 2013; for Nkwinti, see Jacobs 2012, 174; Southall 2013, 224). More recently, and more dramatically, new incoming South African President Cyril Ramaphosa was immediately manoeuvred into supporting an EFF motion calling for expropriation without compensation, a development that was made all the more dramatic by Ramaphosa’s long-standing self-presentation as a political moderate, as well as recent indications that Zimbabwe’s need for external finance has forced ZANU-PF itself to promise at least some form of compensation for expropriated farmers (e.g. Adam 2018, 238–239; Thornycroft 2017). In Namibia, the post-independence compromise has come under attack from both Affirmative Repositioning (former SWAPO Youth League activists inspired by the EFF) and

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(neo-)traditionalist demands for the restitution of ‘ancestral land’ stolen by German colonialism (Becker 2016; Brett 2018b, 108–111). A second national Lands Conference, intended to revisit the ‘willing buyer, willing seller’ principle adopted by its predecessor in 1991, concluded in October 2018, but without finally resolving the most difficult questions (Kaapama 2007, 36–37; Kuhanga 2018). This deepening consensus on the land question has been repeatedly endorsed at the regional level – hardly a surprising development given the centrality of these ex-liberation movements to SADC(C)’s self-image (see above). As Alden and Anseeuw (2009, 15) write, ‘at the SADC level’, there was ‘considerable support for Mugabe’s position as articulating and implementing an anti-colonial and anti-imperial agenda shared by nearly all members drawn principally from the “liberation” narrative’. This is not to say, of course, that some states may not have had other and more self-interested reasons for supporting Zimbabwe’s position on the Tribunal. The Court’s supporters, for example, have often pointed the finger at President Joseph Kabila of the DRC – SADC Chair in 2010 when the Summit first refused to enforce Campbell (e.g. South African Press Association 2010).15 And Kabila was famously indebted to Mugabe for militarily intervening on behalf of his father’s embattled regime (1998–2001) (Nathan 2012, 88–91; Prunier 2008, 191–192, 239–240). The DRC was also the other SADC state to have had a (more prosaic) Tribunal judgment handed down against it, one that it too had failed to enforce (de Wet 2016). Lesotho, similarly, was awaiting judgment in a case filed against it by an expropriated mining business when the Tribunal was suspended (see below). It too was accused by activists of helping to coordinate backlash (Sasman 2011a). President Bingu wa Mutharika of Malawi (2004–April 2012) was personally close to Robert Mugabe, and indeed his brother Peter – an academic lawyer, later himself president – was forced to recuse himself on this basis from an arbitration panel approached by expropriated Zimbabwean farmers (The Zimbabwean 2011). Mutharika’s successor, Joyce Banda (April 2012–2014), was rumoured to be more supportive of the Tribunal. This, however, followed the mid-2012 resurgence of a longrunning border dispute with Tanzania over Lake Nyasa/Malawi, which her officials soon claimed they had wanted adjudicated by the Tribunal (Fritz 2012, 5; Maluwa 2016, 352–354; Mwakyusa 2012). Malawi may

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also have feared gay rights litigation, just like Botswana may have feared lawsuits from San organisations (see above). None of these speculations about national interests, however, can straightforwardly account for the consistent support for Zimbabwe from states such as Mauritius, a country that, as lamented by former Mauritian Chief Justice and SADC Tribunal President Ariranga Pillay, had none of the same settler colonial ‘historical hangovers’ (cited in Christie 2011). The evidence for such interests is in fact weakest precisely for those habitual critics of ZANU-PF (Kikwete and Khama) who came out most strongly against the Tribunal (contrast Sandholtz, Bei and Caldwell 2018). The specific symbolism of Campbell ensured that the SADC Tribunal posed a threat to regional norms of legitimate statehood. It was these norms, not any general resurgence of sovereignty, that explain backlash in Southern Africa. 4 Aftermath This claim of ours can be illustrated by Southern African states’ comparative unwillingness to reclaim sovereignty in other areas. An important element of a recent shift towards a sovereign order in global economic governance has been a new scepticism surrounding investor–state dispute settlement (ISDS) – indicative for some of a post-neo-liberal age (Schneiderman 2014, 165–166, 175–178; Slobodian 2018, 263–286). Indonesia, India and numerous Latin American countries have thus recently curtailed or withdrawn from bilateral investment treaties (BITs) that allow foreign companies to sue states before arbitration panels operating outside of formal legal systems (e.g. Jailani 2016; Ranjan 2016; Trakman 2012). South Africa has been at the forefront of this development, terminating its own agreements with Austria, Argentina, Belgium and Luxembourg, Denmark, France, Germany, the Netherlands, Spain, Switzerland and the United Kingdom (UK) (Honlet et al. 2018, 17). But with the partial exception of Lesotho, no other SADC country has proved so antagonistic. Southern Africa’s limited backlash against ISDS has not been a response to normative pressures such as those responsible for the demise of the SADC Tribunal. It still only reflects a contingent alignment of interests between the ANC government in South Africa (protecting its flagship Black Economic Empowerment policy) and the Kingdom of Lesotho (protecting itself from expropriated diamond miners).

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International relations scholars have often tried to account for why states worldwide suddenly signed up to so many new global governance instruments in the 1990s (see Chapter 1, this volume). One answer is that at this moment in ‘world time’, they were simply unfamiliar with the threats that these instruments could pose to their national interests (see Simmons 2013, 48–51). Post-apartheid South Africa certainly did not foresee the long-term consequences of the BITs it signed with its leading trading partners. As early as 1993, the British government, in particular, was lobbying for new Organisation for Economic Co-operation and Development (OECD) standards for these agreements, still fearing that an incoming ANC government would implement radical economic policies (Mossallam 2015, 7). But such pressures alone cannot account for why ‘South African officials … ignore[d] the risks of BITs and overestimate[d] their benefits’ after the democratic transition. Often BITs were signed simply ‘because they were available and ready to adopt’ (Mossallam, 2015, 7). The years 1994–1998 thus saw a South African ‘BIT-signing frenzy’ with capital-exporting European countries (Langalanga 2015, 7). Lack of relevant knowledge was indeed key: ‘the bureaucrats charged with negotiating the treaties were not lawyers and had little legal and technical expertise in international law’ (Mossallam 2015, 8). In more extraverted neighbouring states, even less attention was paid to the safeguarding of national interests. The 1990s saw the signing of ‘bizarre’ agreements between countries with no trade between them, such as Zambia and Sudan (Simmons, Elkins and Guzman 2006, 819). Zimbabwe signed a notably large number of BITs in this period; 1997, for example, saw the coming into force of a deal between Serbia and Zimbabwe.16 In that year, Serbia imported more than four times as many goods from Zimbabwe as it exported, but these imports still only accounted for a miserable 0.002 per cent of its national total.17 Revealingly, none of these agreements have been terminated, even after Zimbabwe’s crusade against the SADC Tribunal – Section 295 of the 2013 constitution went so far as to grant expropriated farmers protected by BITs entitlements to compensation that it explicitly denied to ‘indigenous’ Zimbabweans (for analysis of this term, see Tsabora 2016, 226–228). Under such low levels of scrutiny, BITs could easily proliferate in Southern Africa. The 2000s saw an increasing number of widely publicised BIT scandals, alerting politicians and publics worldwide to how companies could

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now sue states even when vital public interests were at stake (see Finbow 2016, 68–70). In 2003, the Czech Republic was thus ordered to pay a Dutch broadcasting company $353 million (equivalent to its annual healthcare budget) after pressuring it to run Czech-language programming (van Harten 2005). In 2007, holders of bonds issued by a now bankrupt Argentinian state obtained $1,350 million when forced to take a ‘haircut’ after a government default (Sornarajah 2015, 168–171). South Africa turned against the international investment protection system following a scandalous arbitration claim lodged in the same year. Piero Foresti v. Republic of South Africa called into question the ANC’s flagship policy for redressing the racial inequalities inherited from apartheid: Black Economic Empowerment. This policy has licensed a range of positive discrimination measures favouring the formerly disenfranchised majority – for its critics, however, it was a ‘class project’ pursued by a new elite (Ashman, Fine and Newman 2008, 174, 187–188; Southall 2004). The Mineral and Petroleum Resources Development Act 2004, for example, required mining companies to transfer 26 per cent of their shares to historically disadvantaged citizens. Aggrieved Italian investors in the stone sector immediately claimed this violated a BIT signed with Italy in 1997. Arbitration was supported by Italian diplomats. The Embassy in Pretoria/ Tshwane submitted an aide-memoire to the South African government, arguing that the new mineral Act had ‘a significant and deleterious effect on Italian investors’ investments in the South African mining industry’ (Peterson and Garland 2010, 7). This episode triggered a sudden volteface in government policy: the implications of entering into these investment treaties … did not receive scrutiny … [until] the realization that South Africa’s most comprehensive and far reaching social policy since apartheid its BBE scheme [sic], was conflicting with its obligations under BITs. (Mossallam 2015, 7, 9)

The Department of Trade and Industry then launched the most comprehensive cross-governmental review of BITs ever undertaken by any government.18 In 2010, a cabinet review recommended signing no new BITs without compelling reasons, terminating those BITs that had been signed during the 1990s while offering the possibility of renegotiation,

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and developing a SADC Model BIT as a basis for these renegotiations (Mossallam, 2015, 12, 22). Other SADC countries acceded to South Africa’s request for a new Model BIT with relative ease. By now, less investor-friendly treaties could be justified using global trends. The scandals of the 2000s had shifted the positions of some Western governments, notably the Rudd and Gillard administrations in Australia (2007–2013) (Kurtz and Nottage 2015). (By 2016, Western public pressures would become strong enough to stall longrunning negotiations for two agreements of unprecedented size: the US–EU Transatlantic Trade and Investment Partnership and the US–Asia TransPacific Partnership. The negotiation of both deals was then frozen, thanks largely to the election of President Donald Trump.) The investment protection system’s response to these political pressures was to propose ‘new generation’ BITs enshrining a ‘right to regulate’ (for the law, see Titi 2014; for the context, see Schneiderman 2011).19 These have typically sought to make ISDS more transparent while obliging investors to comply with labour and environmental standards. In recent years, the United Nations Conference on Trade and Development (UNCTAD) has worked particularly closely with African regional economic communities to develop Model BITs of this type (e.g. Schill 2015, 1825–1826; UNCTAD 2013). And South Africa collaborated with the International Institute for Sustainable Development during the drafting of SADC’s own 2012 Model BIT (Mossallam 2015, 22). This document ended up recommending, inter alia, that the preambles to treaties reflect states’ developmental goals and ‘reaffirm the right of State Parties to regulate’. It also referenced South African pressures when noting that ISDS would not in fact be mandatory: The Drafting Committee was of the view that the preferred option is not to include investor–State dispute settlement. Several States are opting out or looking at opting out of investor–State mechanisms, including Australia, South Africa and others. However, if a State does decide to negotiate and include this, the text below provides comprehensive guidance for this purpose. (Special Note to Article 29, cited in Ngobeni and Fagbayibo 2015, 179, n. 25)

Since then, South Africa has continued to adopt more radical positions than other SADC states.20 Most dramatically perhaps, the government

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ignored the cabinet’s recommendation to use the new model as a model for renegotiation. From 2013, South Africa simply exited agreements it had signed in the 1990s, angering investor nations and the EU (Mossallam 2015, 16–17). Its main use for the Model BIT has been as a guide for domestic legislation regulating investments (Kondo 2017, 5). Soon, moreover, it would be trying to protect domestic policy from another set of regional instruments. It was only thanks to unconnected developments in Lesotho, however, that it would become aware of the threat these posed. Swissbourgh Diamond Mines Ltd had acquired mining leases in Lesotho in the late 1980s but claimed that these were expropriated between 1991 and 1995 by flooding of the land caused by dam-building. By 2009, Swissbourgh was claiming that it had exhausted local remedies and was owed approximately $1 million in compensation (Sasman 2011a).21 It applied to the SADC Tribunal, but by 2011 backlash had ensured that its case could not be heard. Initially, Swissbourgh threatened to complain to the United Nations Human Rights Council (UNHRC), but in 2012 it approached the Permanent Court of Arbitration (PCA) (Sasman 2011d). In 2016, a PCA Tribunal seated in Singapore finally agreed with Swissbourgh that Lesotho had breached its SADC Treaty obligations by facilitating the Tribunal’s dissolution. It awarded Swissbourgh over $2 million in costs and ordered that a new Tribunal be constituted in Mauritius (or another agreed location) to hear the original SADC Tribunal claim.22 Fortunately for Lesotho, however, the emergence of ‘third-generation’ BITs had come along with an increasing willingness by national courts to review arbitration tribunals’ jurisdictional claims. Lesotho was thus able to appeal to the High Court of Singapore, and for the first time ever its judges overturned an arbitral award on its merits (Chan 2017; Simson 2017). The Swissbourgh proceedings raised alarm bells with the South African government because they were not brought under the terms of any BIT, like those they were unsigning. Instead, they signalled a new kind of threat to its domestic legislation. Like other states in the region, South Africa had been taken by surprise when the mining group became the first investor to make use of ISDS provisions in the 2006 SADC Finance and Investment Protocol (FIP). This was an instrument designed to harmonise national investment codes. Ironically, it was also one that South Africa itself had

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done most to bring into being. The immediate post-apartheid period had seen its banks (notably Stanbic Africa and ABSA) expand aggressively into neighbouring states’ wholesale and retail sectors. These banks, in turn, attracted more foreign direct investment (FDI) than any other industry in the region (Ruf 2007, 213–214; for a more general interpretation, see Bond 2007). Harmonising investment protection in SADC thus became a vital South African national interest. In 1995, the new ANC government obtained responsibility for coordinating the finance and investment sector from the SADC Summit, which mandated a unit based in the South African Treasury to build consensus around a FIP. Donors, including the United States Agency for International Development (USAID) and the EU, supported this process, which led to the Protocol’s signing in 2006 (Ruf 2007, 216, n. 4). The outcome was largely a case of what Hameiri and Jones (2016) have called ‘state transformation’. That is, the Protocol did not involve ‘a shift of authority from states to supranational organisations’ (in this case, SADC). Instead, it entailed the ‘creating and transforming [of] domestic state apparatuses to serve internationally determined priorities’ (Hameiri and Jones 2016, 794).23 A baseline study on the Protocol’s implementation – funded by the German Society for International Cooperation and, indirectly, Mastercard and the British government’s Department for International Development – described how the harmonisation process would amount to indirect control: ‘[a]greement is reached on harmonised standards, systems and policies. Through domestic adoption of these, individual domestic frameworks start to look and function the same’ (SADC, GIZ and Finmark Trust 2011, 3, cited in Ngobeni and Fagbayibo 2015, 178).24 These new standards would, for example, require SADC states to guarantee aggrieved investors access to the courts (SADC 2006, Annex 1, Article 27). Crucially, however, the FIP also mandated ISDS when disputes could not be resolved at the local level – a much more direct form of governance. And any such international arbitration would be subject to ‘antiquated’ investor-friendly provisions characteristic of an earlier generation of BITs (Kondo 2017, 1; see also Ngobeni and Fagbayibo 2015, 178). Following Foresti, these provisions would, of course, come into conflict with both South Africa’s own laws and the more state-friendly SADC Model BIT. In 2013, a year after Swissbourgh had approached the PCA in Singapore, the South African

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Department of Trade and Industry obtained a mandate from SADC member states to amend the FIP (Mossallam 2015, 24). These other member states had accepted the bulk of its recommendations by 2015, and by 2017 the necessary three-quarters of them had adopted the amended FIP. As one advocate of these changes has summarised, the amended Protocol ‘contains newer trends such as state–state arbitration and moves away from the problematic provisions in the old FIP, which were based on oldgeneration BITs’ (Kondo 2017, 5, nn. 21–22). 5 Conclusion South Africa and Lesotho have thus gradually succeeded in protecting specific policies and interests from new threats posed by the new terrain of international law. Southern Africa as a whole, however, has not yet begun seeking to systematically reclaim the sovereignty sacrificed by extraversion strategies in the 1990s. Zimbabwe was only able to coordinate backlash against the SADC Tribunal because of the particular normative force of a resurgent ‘liberation narrative’ applied to the land question. Its own land reforms had triggered especially powerful domestic pressures for change in other states legitimating themselves as overthrowers of settler colonialism. Even those few states willing to violate (still strong) regime solidarity norms were unwilling to oppose this deepening consensus. As a result, no SADC Tribunal upholding the Campbell judgment could be saved. Some of the intellectuals most sympathetic to ZANU-PF had hoped that this activism on land might signal the resurgence of national sovereignty as the ‘cornerstone … [of] the … agrarian question’ (Moyo, Jha and Yeros 2013, 93). A decade later, however, sovereign equality in particular, and not sovereignty in general, remains the operative principle of regional order.

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1 Introduction On first look, West Africa appears to be most immune to backlash. All states in the region are subject to the Economic Community of West African States (ECOWAS) Community Court of Justice (ECCJ), the only African international court to have ruled repeatedly against states in a long list of politically contentious cases. Its judgments have included one against Niger for condoning female slavery, one invalidating provisions of Burkina Faso’s electoral code, and one declaring that Sierra Leone’s vice president was illegally removed. Other high-profile rulings have demanded that Niger and Côte d’Ivoire release detained members of ousted regimes. Nigeria, meanwhile, has been ordered, inter alia, to compensate Biafran victims of its civil war, to properly regulate multinational oil companies polluting the Niger Delta, and to release its imprisoned former National Security Advisor (all of these cases are discussed below). Only the Gambia has ever sought to coordinate backlash restraining the Court (in 2009), and this was entirely unsuccessful – a stark contrast with Zimbabwe’s simultaneous campaign against the SADC Tribunal. Alter, Helfer and McAllister (2013) have provided the most detailed explanation for this West African enthusiasm. They argue that ‘governmental support for a court in the early 1990s reflected a growing sense that deeper regional integration required a judicial body to resolve disputes and interpret legal rules’ (Alter, Helfer and McAllister 2013, 746). By justifying humanitarian interventions in human rights terms, meanwhile, West African governments ended up changing ECOWAS’ ‘normative orientation’. This new ‘people-centred’ stance explains the inclusion of references to human rights in the 2001 Protocol on Democracy and Good Governance (PDGG), which soon allowed reformers to advocate a capacious human rights jurisdiction. Alter, Helfer and McAllister

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(2013, 772–775) claim that these reformers’ arguments ‘resonated’, and that by 2005 ECOWAS was sincerely persuaded of the need for effective supranational oversight of human rights. This genuine commitment, coupled with more mobilisation by civil society, thus accounts for why the Gambia’s efforts to coordinate backlash were defeated (Alter, Gathii and Helfer 2016). We, by contrast, begin by arguing that state support for the region’s new international courts in the 1990s (most notably the ECCJ) was largely a product of the same extraversion strategies analysed elsewhere in this book. Second, we suggest that the new humanitarian interventions of the 1990s did not in fact reflect an ‘eager[ness] to prevent civil wars’ (Alter, Helfer and McAllister 2013, 744). Instead, they were a new means through which they could be waged and justified. New human rights language was included in the 2001 PDGG, and this did indeed allow for ‘court reform advocates’ to demand more powers for the Court. But as we show in the third part of this chapter, human rights (and the rule of law) were by no means the primary objective of the Protocol. Its goal was to legitimate ECOWAS leaders’ rule in terms of legality. This local legitimation strategy explains why states have apparently been so keen to surrender sovereignty to a Court whose rulings they continually evade. As illustrated in the fourth part of this chapter, non-compliance remains endemic, despite an impressive jurisprudence. Passive resistance has, moreover, consistently shaded into open defiance whenever regimes’ legality has been called into question. Backlash in West Africa has thus been more muted than elsewhere, but once again it has been triggered by rulings that undermine local legitimations rather than those that encroach upon sovereign prerogatives. 2 Extraversion ECOWAS has existed since 1975. It was not relaunched (like the East African Community, EAC) or renamed (like the Southern African Development Coordination Conference, SADCC) in the immediate aftermath of the Cold War. This is not to say, however, that it did not undergo a similarly radical transformation in this period. Before the 1990s, it had been a paper tiger, ‘yet to go beyond an elaborate statement of intent’ (Ravenhill 1984, 221, cited in Bach 2016, 50). The primary cause of its stasis had been geopolitical deadlock. Since independence,

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regional relations had always been dominated by two hegemons: Nigeria and France (even if Ivorian President Felix Houphouët-Boigny had always been particularly influential in shaping French policy towards its ex-colonial clients) (Médard 2005, 29). This rivalry reached its apex during the Nigerian Civil War (1967–1970) when France and Côte d’Ivoire supported the Biafran succession. For three years after the hostilities, Nigeria then sought to create a new West African grouping to reduce French influence, while France and Côte d’Ivoire responded in 1973 with a new rival organisation of francophone states: the Communauté Économique de l’Afrique de l’Ouest (CEAO) (Bach 2016, 37–39; Gautron 1975, 200–201). Then, however, two unexpected developments briefly gave hope that these divisions could be overcome. First, the election of Giscard d’Estaing in 1974 saw the departure from the Elysée Palace of Jacques Foccart, Charles de Gaulle’s advisor on African affairs, and the man who had overseen France’s attempt to retain geopolitical influence in the Cold War by constraining African decolonisation (see generally Bat 2012). Second, Nigeria had become awash with petrodollars thanks to the oil crisis of 1973, while other regional economies were devastated (compare Callaghy 1990, 303–305 with Jeffries 1989, 79). It could now propose for West Africa what Algeria and the Organization of the Petroleum Exporting Countries (OPEC) states were proposing for the Third World as a whole: threats of further cartelisation and commodity price rises that would pressure developed nations into reforming the international aid and trade regimes in ways favouring (import substitution) industrialisation in the ‘dependent’ periphery (Bach 2016, 49; Gilman 2015; Mortimer 1984). The contrast with the ‘free-market philosophy’ of 1990s regionalism was stark: Nigeria promised francophone states that top-down ‘developmentalist’ regional mechanisms would be used to redistribute its oil windfall(s) (Alter, Helfer and McAllister 2013, 742; Bach 2016, 39). West African states thus agreed to create a regional body that was essentially an expression of Nigerian hegemony. They only did so, however, via community institutions that ‘left national sovereignty intact’ (Alter, Helfer and McAllister 2013, 741). ECOWAS community protocols had no legal force. A Tribunal envisaged by the 1975 Treaty, but never agreed upon, would have been ‘largely redundant’ (Akinrinsola 2004, 504, cited in Alter, Helfer and McAllister 2013, 746).

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ECOWAS was, in any case, stillborn. Nigeria ‘failed to capitalise on the opportunities associated with the oil windfalls of 1973 and 1979’ and trade agreements favouring its exports were either ignored or cancelled, especially by francophone states (Alter, Helfer and McAllister 2013, 743; Bach 2016, 39). Old colonial divides subsisted. Alter, Helfer and McAllister (2013, 746–747) detect a ‘broader recommitment’ to regionalism amid a ‘heady atmosphere of supranational integration’ in the early post-Cold War period. This ‘growing sense that deeper regional integration required a judicial body’ was, however, external, not internal, in origin. Donors now made support for all integration schemes contingent on the final abandonment of lingering commitments to the ‘developmentalist’ regionalism of the 1970s. Those who had advocated these measures, first inside ECOWAS and later at the United Nations Economic Commission for Africa (UNECA), such as Mbaye Diouf and Adebayo Adedeji, found themselves suddenly isolated in policy discussions (Adedeji 2004; Diop and Lavergne 1993, 7). The European Economic Community (EEC)/European Union (EU) was certainly more tolerant than USAID and the Bretton Woods institutions of protectionist measures towards non-ECOWAS states, and it ‘took a leading role in trying to influence the attitude of the donor community as a whole in favour of regional integration’ – in 1991, the former Commissioner for Development of the European Community declared that Africa ‘will be regional or not at all’ (Lavergne and Daddieh 1997, 105, 108).1 Like other agencies, however, the EEC/EU revived regionalism as an ‘expansion of neoliberal national programmes’ (Bach 2004, 71; see also Chapter 1, this volume). The evidence, such as it is, indicates that the 1991 Community Protocol creating the ECCJ was part of a broader package of EEC/EU-style institutions intended to signal West African adherence to this new regionalist consensus. A Committee of Eminent Persons recommended ‘a supranational regime inspired by the European Union’. Not only did this require a Court of Justice, but ‘European institutions such as the European Parliament or the European Economic and Social Committee (ESC) similarly served as a model for the establishment of eponym organs – the ECOWAS Parliament and the Economic and Social Committee’. Europe’s new Economic and Monetary Union ‘naturally served as a template’ for a proposed single currency (the ‘ECO’) (Bach 2016, 83–84). In 1992, the ECOWAS Executive

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Secretariat noted that states had thus far generally sought membership ‘in expectation of reaping benefits without much sacrifice, and as a means of obtaining additional external development assistance’, but nonetheless recommended further emulation of European models. It regretted ECOWAS’ backwardness in this regard: EEC provisions [on supranationality] predated the ECOWAS Treaty and yet it was not considered necessary to draw inspiration from them. Here were European powers, erstwhile colonisers of West Africa and instructors in the rudiments of sovereignty, surrendering sovereignty to a Council of Ministers and Commission of Officials as far back as 1957. (ECOWAS 1992, 12–13)

In the francophone CEAO states, extraversion combined with more direct forms of outside influence. The organisation’s original Treaty had been drafted with the aid of Jacques David, an EEC and former French colonial official, and now once again EEC officials were directly involved in the Community’s transformation (Piccolino 2016, 14). Here, as a result, ‘the endorsement of the EU as a model was to be most spectacular’. Houphouët-Boigny’s customs union was dissolved in favour of a West African Economic and Monetary Union (WAEMU) that was ‘explicitly conceived’ as a replica of ‘the EU’s Maastricht treaty architecture and philosophy’ (Bach 2016, 83–84). The WAEMU Commission was to be ‘a pure and simple carbon copy of the European Commission’ (Sall 2006, 83, cited in Piccolino 2016). Africa’s busiest international court has a similar genesis.2 The Common Court of Justice and Arbitration of the Organization for the Harmonization of African Business Law (OHADA) began operating in 1997, and was primarily paid for and conceived by the French Foreign Ministry (Alter 2014b, 81). It is ‘predominantly inspired by French law’ (Fontaine 2013, 56). Foreign support has remained ‘instrumental to the functioning of OHADA’ and the French Foreign Ministry has retained an official in its Secretariat (Alter 2014b, 81). Politically, however, the Common Court of Justice has proved uncontroversial. It applies only OHADA business law, and typically only in disputes between businesses. States have not been ruled against, and even their parastatals have been granted generous immunity (Dickerson 2016, 71, 76).

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There was therefore effectively no civil society mobilisation for international courts in the early post-Cold War period. The process of creating the ECCJ, in particular, was astonishingly rapid. There is no record of distinctive national interests being asserted in protracted negotiations, as liberal and realist international relations theories would have us expect – Nigeria’s economy was in disarray and it was no longer willing to play a hegemonic role (Kufuor 2006, 33–34). One official from the ECOWAS Legal Affairs Directorate reportedly explained it by simply saying: ‘the Authority [of Heads of State] said, “let’s have a Court”’ (cited in Alter, Helfer and McAllister 2013, 747). There was certainly no great enthusiasm for it once it had been created. Unlike WAEMU, ECOWAS would ultimately fail to attract any substantial EU funding in the 1990s (see below). Throughout the decade, negotiations surrounding the ECCJ were ‘bogged down by disagreements over whether it should be temporary or permanent, [and over] terms of employment for its staff and funding’ (Dateline Abuja 1999). The 1991 Protocol would finally enter into force in 1996, but judges would not be inaugurated until January 2001, after Nigeria had once again identified ECOWAS as a vehicle for economic expansion (Alter, Helfer and McAllister 2013, 747–748; Ebobrah 2018, 84, n. 7). Francophone states appeared equally uninterested in the WAEMU Court of Justice. It was ostensibly created in 1996 to monitor compliance with the Union’s rules governing the free movement of goods, services, people and capital. Yet neither states nor the Commission have ever actually brought any infringement cases. The ‘vast majority’ of disputes it has handled – and it has only dealt with an average of three a year – have concerned WAEMU and its staff (Illy 2016, 357, 363). To put it mildly, none of this suggests that states were influenced in the early 1990s by a ‘heady atmosphere of supranational integration’. Indeed, by 1993, ECOWAS insiders were – if anything – more pessimistic about states’ political commitments than they had been a decade earlier (see Bach 2004, 72; Diop and Lavergne 1993, 3). West African regimes’ real goals have been aptly summarised by Christof Hartmann (2013, 46–47): we have ‘no evidence that any specific [ECOWAS] governance standard resulted from direct donor pressure’. But: [A]t the same time, it is undeniable that the emergence of ECOWAS … is related to a more general shift in international norms toward the

90 | A F R I C A A N D T H E BAC K L A S H AG A I N S T I N T E R N AT I O N A L CO U R T S promotion of democracy, human rights, and rule of law by transnational actors and networks abroad, and to the growing importance of political conditionality in Africa since the early 1990s.

West Africa continues to contain the world’s poorest countries.3 Its ‘leaders need external support’ and ‘have realized that regional cooperation is highly appreciated in the international community’, thus leading them to ‘target’ donors with governance reforms (Hartmann 2013, 46). This, in short, was extraversion. 3 Rights, Intervention and Legitimation For Alter, Helfer and McAllister (2013), the outbreak of the Liberian Civil War in 1990 was a ‘turning point’ for ECOWAS. While military intervention may have elicited ‘vociferous protestations by some francophone member states’, it still revealed that ‘African governments were willing to limit national sovereignty to achieve other Community goals’. Human rights abuses committed by Economic Community of West African States Monitoring Group (ECOMOG) troops would then expose a gap between humanitarian rhetoric and practice, triggering a gradual ‘rebranding of ECOWAS as a “people-centered” institution’. In the early 2000s, this rebranding would empower reformers who wanted the ECCJ to expand its jurisdiction to cover human rights cases. Reformers’ arguments on this view ‘resonated’ with states because governments could see that ‘compared to authorizing collective military intervention in a member state, empowering the Court to adjudicate individual human rights violations was a relatively modest step’ (Alter, Helfer and McAllister 2013, 751, 771–772). ECOMOG, however, was more an intervention on behalf of one party to the conflict than it was an attempt to end it. Moreover, francophone states did much more than ‘vociferously protest’. They continued arming and lending political support to those same rebel forces commanded by Charles Taylor that ECOMOG was meant to be combating. As in Biafra two decades earlier, Nigeria and Côte d’Ivoire thus found themselves on opposite sides of a brutal conflict sucking in an unlikely panoply of international actors. A complex web of personal animosities ensured Libyan, Ivorian and Burkinabè support for Taylor (Bøås 2000, 147; Ellis 1999, 53–54, 69–75). President Doe was forced to request help from Côte

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d’Ivoire’s traditional rival: Nigeria. President Babingida stepped in under unconvincing multilateral cover: Nigerian soldiers comprised approximately 80 per cent of ECOMOG’s forces and 90 per cent of its funding (Ellis 1999, 176; Obi 2009, 121–122). There was barely a pretence of francophone engagement (Alao, Mackinlay and Olonisakin 1999, 62; Tuck 2000, 2).4 Côte d’Ivoire also successfully opposed placing the Liberian issue on the Security Council agenda, organised parallel peace talks in President Houphouët-Boigny’s home town, and questioned ECOWAS’ neutrality (Wippman 1993, 165–172). Subsequent ECOMOG interventions, such as in Sierra Leone (1997–1999), only reinforced the view that the group functioned as a ‘party to the conflict’ aiming to ‘protect and preserve’ Nigerian-allied ‘political elites and their regimes’ (Bøås 2000, 156–159; see also Obi 2009). If the Liberian Civil War represented a ‘turning point’ for West Africa’s regional rivalries, it was only therefore in the very limited sense that intervention in neighbouring states was now overt, rather than covert, and had to be justified abroad in terms of international law and a resurgent language of humanitarianism. The new ‘people-centred’ rhetoric used to justify these interventions was, however, reflected in a groundbreaking 1999 Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-Keeping and Security.5 And similar language then reappeared in the 2001 ECOWAS PDGG – the document that would soon help transform the ECCJ. The PDGG, however, reflected the ‘collective self-interest of governments’ justified in the language of legality (Cowell 2011, 335; cf. Kufuor 2002). It was not ‘an ambitious regional effort to promote democracy, accountability, transparency, and the rule of law’ (Alter, Helfer and McAllister 2013, 745). At its heart was a ‘trigger mechanism’ that suspended ECOWAS members after unconstitutional changes of government, and that introduced a new category of illegal regime into the region’s international relations. From states’ perspective, this was a means of protecting a ‘club of incumbents’ against ‘bottomup’ threats, such as the coups initiated by leftist junior officer corps throughout West Africa in the 1980s, or more recently the popular insurrection that deposed Blaise Compaoré in Burkina Faso in 2014 (see below) (Cowell 2011, 335; see also Omorogbe 2011). Such cynical perspectives certainly tally best with the record of how the PDGG has actually been applied. ECOWAS states subsequently focused ‘almost

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exclusively’ on provisions relating to coups (Cowell 2011, 335). Those relating to governance norms have been comparatively neglected, and ‘member states certainly did not want to empower the Secretariat (and later the Commission) or the Court to take an active part in the promotion of governance standards’ (Hartmann 2013, 28). It is not only West African states, of course, who have sought legitimacy through legality. Pierre Englebert (2009, 62), for example – developing an insight of Jackson’s (1990) – has argued that ‘legality rather than … effectiveness’ has been characteristic of the African state in general (cited in Piccolino 2012, 9). ‘Alien in origin’, in John Lonsdale’s (1986, 144) words, these states joined the international system possessing ‘neither symbolic depth, nor a common language of deep accountability’. For a variety of reasons, however, it has generally been easier to compensate for these deficiencies outside of contemporary West Africa. Guilia Piccolino (2014, 52–54), for example, has shown how legality has acquired particular salience in Ivorian politics today thanks to a combination of low state capacity, previous developmentalist failures, ‘shrinking state patronage’, and the lack of a ‘common cultural identity or a history of decolonisation struggle’. In neighbouring Burkina Faso, by contrast – as in many other Sahelian states – extreme poverty has always constrained any possibility of state-building, whether through patronage or development (see generally Elischer 2019). There, legality has become an attractive strategy despite the fact that state capacity has actually increased since structural adjustment (Harsch 2017, 159–160). Southern African states have, by contrast, been able to make more use of liberation narratives (see Chapter 3),6 while East Africa contains Rwanda (along with Ethiopia, the continent’s most obviously developmentalist regime), states such as Kenya and Uganda (which have proved relatively successful in maintaining their patronage resources) and Tanzania (where nationalists have been able to build upon a relatively shared linguistic inheritance) (see Chapter 5, this volume). As illustrated below, in particular, neither region has witnessed struggles over the legality of extending term limits at the same intensity as those in the continent’s West (Tull and Simons 2017, 88).7 The unusual frequency of such constitutional engineering in this part of the world demonstrates how legitimation through legality differs from the internalisation of rule of law values.

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4 Court Transformation The importance of these claims to legality helps explain why West African states have been so happy to empower the ECCJ, even as they appear unwilling to see its new powers actually be exercised. Their acquiescence was certainly a very striking feature of the civil society campaign for a transformed ECCJ in the mid-2000s. This campaign began following the Court’s very first case. In Afolabi v. Nigeria (2003), a lawsuit challenging a fragrant violation of ECOWAS free movement rules had to be dismissed because private individuals had no right to approach the Court: a vivid illustration of how the Court was hamstrung and unable fulfil its purported trade liberalisation objectives.8 The judges then helped coordinate a campaign with sympathetic non-governmental organisations (NGOs) and ECOWAS officials for individual access (Alter, Helfer and McAllister 2013, 749–752). Their strongest ‘legal foothold’, however, was buried in Article 39 of the PDGG: a pledge that gave the ECCJ the power to hear, inter alia, ‘cases relating to violations of human rights, after all attempts to resolve the matter at the national level have failed’ (Alter, Helfer and McAllister 2013, 745). Human rights lawyers associated with the West African Bar Association – then led by the doyen of Nigerian advocates, Femi Falana – now began mobilising around this specific issue (for Falana, see Odinkalu 2012). (The Court is based in Abuja, the Nigerian capital.) In 2005, this civil society mobilisation obtained a Protocol that entitled individuals to approach the ECCJ ‘on application for relief for violation of their human rights’, but remained silent on the free movement issues the Court was created to address. In Alter’s (2014b, 85) words, this was a ‘switch from copying the ECJ [European Court of Justice] to borrowing from the ECtHR [European Court of Human Rights]’. The ECCJ’s groundbreaking Protocol was, however, obtained with suspicious ease. Strikingly, Alter, Helfer and McAllister (2013, 752) tried and failed to find any evidence of controversy or disagreement among states that was created by these proposals. And this, as Kofi Oteng Kufuor (2006, 55) argues, was at a time when there was in fact ‘very little real demand for supranational institutions and organisations within ECOWAS’. The details of the ECCJ’s new human rights jurisdiction provide further evidence that ECOWAS states were not making ‘tactical’ concessions in the manner that international relations theory would lead us to expect (see Chapter 1, this volume). New supranational

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human rights courts elsewhere had typically only allowed individual complaints after they had been screened by a quasi-judicial commission (for the ECtHR, see Madsen 2007, 144–152).9 These courts had also been assigned determinate lists of rights to apply (such as the European and American Conventions, or African Charter) and required litigants to exhaust domestic remedies before approaching them (Ebobrah 2018, 86; Oppong 2014, 72–73).10 The transformed ECCJ ‘lacks any of these buffers’ protecting sovereignty (Alter, Helfer and McAllister 2013, 753). In 2009, ECOWAS states also rejected Gambian efforts to narrow the Court’s jurisdiction, and in 2012 they even granted the Commission additional enforcement powers.11 Beyond the subregion, meanwhile, West African states have been the most enthusiastic in empowering the African Court. Six of the eight countries allowing individual petition are from ECOWAS, including Burkina Faso and Côte d’Ivoire (see below).12 This apparent enthusiasm for the ECCJ, it should be stressed, has reflected a quest for legitimation through legality more than it has direct donor pressure. Although Afolabi had in fact coincided with the high point of EU donor interest in the ECCJ, this interest was entirely focused on those trade liberalisation objectives that member states had neglected.13 The EU (2002, Annex 2) at this stage was only interested in funding the Court as an instrument for the ‘progressive insertion of West Africa into the global economy’. Since 2003–2004, the imposition of a 0.5 per cent levy on trade into the region has gradually made ECOWAS more financially independent than SADC and the EAC. Donors do still fund particular programmes and activities (notably conflict prevention), but the Court itself does not currently receive or seek donor funds (ECOWAS 2016, 7; Hulse 2014, 558; Murison 2004, 1326; News Agency of Nigeria 2016). 5 Backlash In this part, we begin by arguing that the Gambia’s attempt to restructure the ECCJ failed because it, unlike Zimbabwe, was unable to justify backlash in terms of regional norms governing legitimate statehood. Indeed, it openly rejected the human rights ideas that were so integral to the image ECOWAS was seeking to project abroad. It was also the only state to refuse to defend itself at the Abuja Court. This orientation,

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however, was almost entirely a product of President Jammeh’s idiosyncratic outlook on world affairs. The Gambia’s relationship with the Court has changed since he lost power after the 2016 elections. The early indications are that under President Barrow, (non-)compliance with ECCJ judgments will be determined by a similar set of considerations operative elsewhere in the region. While the Court’s authority has rarely been openly called into question, a large majority of court orders against states have been either ignored by executives or ruled as incompatible with national law by domestic courts with constitutional competence (this despite an unambiguous series of ECCJ decisions holding that its rulings have domestic effect). Compliance has only been forthcoming when politically costless decisions or small compensation payments have provided an easy means of relieving international pressures surrounding particular cases, or when it has allowed new regimes to distinguish themselves from their putatively illegal predecessors. We argue that this record of non-compliance cannot be explained away as simply a technical challenge to be overcome or as analogous to difficulties faced by all international courts in their infancy. Instead, it reflects how states had agreed to expand the Court’s jurisdiction without ever actually wanting it to play this new role. Lastly, we will illustrate our main argument that resistance to the ECCJ has become more active and overt when its rulings have undermined those claims to legality that led West African regimes to empower the Court in the first place. 5.1 The Gambia One reason for the relatively limited amount of resistance to the ECCJ has been the strategic approach it adopted in its early years: a stark contrast to the path followed by the SADC Tribunal (see Fritz 2014). In 2005, the first year of its new mandate, the Court dodged a political bullet by ultimately refusing to intervene in a Nigerian electoral dispute. This case, which revolved around Dr Jerry Ugokwe’s disputed claim to have been fairly elected to the Federal House of Representatives, emerged from the fiercely complicated patronage politics in Anambra State, and concerned the interests of some close to President Obasanjo.14 Initially, the ECCJ had caused ‘uproar’ in Nigeria by issuing a preliminary ruling that prevented the government from swearing-in Ugokwe’s opponents.

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But a month later, they suddenly reversed course without explanation, dismissing the case on the grounds that ‘no provision … gives the Court powers to adjudicate on electoral issues’ (Alter, Helfer and McAllister 2013, 759). By 2008, however, the ECCJ felt confident enough to hand down landmark judgments against states. The most famous was issued against Niger, concerning slavery, and will be discussed later on. The first, however, concerned press freedoms in the Gambia, and would precipitate backlash. Until 1994, the Gambia was known for the independence of its media. After taking power in a military coup, however, Lieutenant Yahya Jammeh’s Armed Forces Provisional Ruling Council (AFPRC) resurrected dormant colonial legislation to threaten newspapers with closure (Hultin 2007, 4). Violence against journalists increased rapidly in the mid-2000s (interview with J McCully [Media Legal Defence Initiative], 18 August 2016).15 In 2007, the Media Foundation for West Africa filed lawsuits at the ECCJ on behalf on two tortured journalists: Chief Ebrimah Manneh and Musa Saidykhan. In Manneh, adjudicated in 2008, the Gambia simply refused to file documents or attend hearings. In Saidykhan, adjudicated in 2009, it adopted a strategy that it continued to pursue in all subsequent lawsuits: object to the Court’s authority on every possible ground, including the primacy of national sovereignty (interviews with journalists’ legal representatives [Abuja], 27–28 July 2016; interviews with ECCJ Registry officials, 1 August 2016; see also Alter, Gathii and Helfer 2016, 297). The judges in Abuja, however, ordered that Manneh be released and that $100,000 in damages be paid. They also rejected the Gambia’s procedural objections in Saidykhan. As a result, and in an apparent attempt to prevent Saidykhan from being heard, the government submitted a set of proposals to the ECOWAS Commission recommending many of the sovereignty-preserving ‘buffers’ that states had rejected when transforming the Court in 2005. These included a requirement to exhaust domestic remedies, the creation of an appeals procedure, and the limiting of the Court’s jurisdiction to treaties ratified by states (Alter, Gathii and Helfer 2016, 297–298). This book argues that successful backlash cannot be explained simply by encroachments on national sovereignty, and the Gambia failed to legitimate even these relatively modest proposals in terms of prevailing regional norms. Not only did they fail to achieve consensus; they

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actually ended up reassuring judges of their authority and encouraging them to make more assertive decisions (Alter, Gathii and Helfer 2016, 300). As Alter, Gathii and Helfer (2016) note, observers of the Court usually explain this failure to persuade by pointing to the ‘widely shared perception of the Gambia as a bad actor with limited political clout in ECOWAS’. They also concede that there are some weighty considerations supporting this view: the Gambia had neither the regional economic hegemony of Kenya nor the ‘anti-colonial bona fides’ of Zimbabwe, and the issues at hand were ‘unequivocal human rights abuses that no government openly defended’ rather than inherently contestable questions of land rights or electoral law (Alter, Gathii and Helfer 2016, 299, 317–318). The Gambia, however, had tabled its proposals in September 2009, and at this time agreement with any of its positions on human rights would have badly damaged the international image that ECOWAS was trying to cultivate. In that month, (in)famously, President Jammeh had threatened to ‘kill … so-called human rights defenders’ ahead of a meeting at the UN General Assembly (BBC News 2009). In 2008, he had promised to behead any gay person found in the Gambia, and in 2007 he announced his own personal cure for HIV/AIDS that he would administer in public (BBC News 2008; 2018). He may not yet have made some of the more dramatic foreign policy announcements for which he would later become known – withdrawing from the Commonwealth and the International Criminal Court (ICC), declaring an Islamic Republic, and accusing ECOWAS of ‘representing foreign interest[s] – but he had still alienated international actors by cultivating close ties with antiWestern petro-populist regimes such as those in Libya and Iran (Hultin et al. 2017, 333–336; Perfect 2014; Saine 2000, 77–82; Stoddard 2017, 479). This ‘bad actor’, in short, could not have hoped to legitimate backlash (cf. Alter, Gathii and Helfer 2016, 317). In January 2017, President Jammeh was deposed because (and only because) of ECOWAS’ threat to intervene militarily following a refusal to accept electoral defeat. In 2010, West African leaders had failed to reach consensus about using military means to oust President Gbagbo of Côte d’Ivoire in very similar circumstances, and in that case intervention was left to France and the UN. President Jammeh, ‘on the contrary, had become an embarrassment for the regional leaders’, and agreement between them was easily reached (Hartmann 2017, 93). His record of assiduous support

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for Casamançais separatists ensured that Senegal eagerly helped Nigeria coordinate his removal. The new regime of President Adama Barrow soon appeared to adopt a new and more liberal foreign policy orientation, revoking its ICC withdrawal notice, allowing individuals direct access to the African Court, and signalling a new attitude towards the ECCJ (see generally Perfect 2017, 330–332).16 In 2014, the Abuja court found that the Gambia had failed to properly investigate the killing of Deyda Hydara, the country’s best-known journalist. An ad hoc NGO coalition in the Gambia then grouped this judgment with Manneh and Saidykhan in order to negotiate with some of the many Ministry of Justice officials embarrassed by their head of state (interview with J Aliu and D Killi, 28 July 2016). Under President Barrow, the government quickly announced an ‘open-door policy’ for such NGOs and promised to compensate victims and their families. It did less, however, to grant more demanding and controversial forms of relief.17 In 2015, for example, yet another ECCJ case had been brought on behalf of Gambian journalists. It ended in 2018 with the government being asked to repeal legislation criminalising sedition, forms of defamation, and the spreading of false news.18 While the new Barrow government had conceded that laws governing the first two offences were redundant, it had continued to defend the latter provisions (Affoah 2017). The Gambian Supreme Court responded, however, by ruling that laws criminalising some forms of sedition, as well as those governing the broadcasting and publication of false news, would remain constitutional (MLDI 2018). This decision did at least appear to deliberately misrepresent the ECCJ. It cited the Abuja judges’ concession that the Supreme Court retained exclusive jurisdiction over constitutionality, but wholly ignored their standard proviso on the very same page that this did not apply ‘once human rights violation [sic] are alleged’.19 5.2 Non-Compliance Since the Gambia’s failure, no state has attempted to coordinate backlash against the ECCJ. This is a pattern that has been observed elsewhere. Once unanimity requirements had frustrated the United Kingdom’s (UK) attempt to rewrite the ECJ’s mandate in 1996–1997, ‘despite the support of powerful governments’, it and other European states quickly fell back on ‘political and judicial inaction’. This ‘unilateral sanction’ would soon prove itself more effective than coordinated

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backlash (Tallberg 2003, 133). In West Africa too, non-compliance has been at least partially deliberate. It represents what James C Scott famously labelled the ‘weapons of the weak’. Challenges to the prevailing symbolic order (here, international human rights) are costly and beset with risk. By contrast, ‘foot dragging, dissimulation, false compliance, [and] feigned ignorance’ typically guarantee weaker actors more autonomy in the long run (Scott 1985, 304).20 The most obvious contradiction in this strategy in West Africa, and one which may ultimately undermine it, is ruling regimes’ eager compliance with rulings challenging the legality of their predecessors. In the case of adverse rulings, even minimal compensation payments have generally only been forthcoming under the most intense international pressures. The best-known example of this is Koraou (2008): the ECCJ’s most famous case, where Niger was found to have not protected one of its citizens from nine years of slavery. While still in the international spotlight, the government swiftly complied with an order to compensate the victim with $20,000, and Hillary Clinton made Hadijatou Koraou the International Woman of Courage 2009 (Adjolohoun 2013, 346, nn. 25, 27; Alter 2014a, 265–266). Niger did not, however, make visible efforts to implement its new anti-slavery laws in favour of the 44,000 Nigeriens with similar statuses. In 2013, it was still ‘yet to make implementing decrees and other regulatory acts required to ensure that judges, lawyers, and law enforcement personnel properly apply the law’ (Adjolohoun 2013, 368; for remedies generally, see Alter 2014a, 60).21 This is not, we argue, behaviour we would expect from states whose leaders had been sincere about empowering a regional court in order to ‘remedy human rights violations in the region’ (Alter, Helfer, and McAllister 2013, 776). That said, we recognise that executive intentions cannot simply be read off subsequent state behaviour. It might be tempting, for example, to use the low ‘compliance rate’ with ECCJ decisions as evidence that governments had never accepted its authority.22 Court staff and those Abuja-based lawyers who make regular use of the system certainly have made ever-more forceful complaints about states’ refusal to implement decisions (e.g. Shibayan 2018). And in 2018, the Registrar publicly bemoaned how only 22 of the 64 enforceable decisions of the Court have been enforced by member states (ECOWAS Court of Justice 2018). Yet it is far from clear exactly how much statistics such as these actually

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tell us. In the specialist literature on the topic, compliance rates have fallen out of favour in recent years largely because of their tendency to exaggerate the importance of court judgments (for an overview, see Huneeus 2014, 438–440). States may end up complying with orders for all kinds of extraneous reasons (‘situational compliance’), and causal connections are always hard to establish (Squatrito et al. 2018, 17). Low compliance rates, meanwhile, may reflect limited state capacity as much as attitudes towards law and courts (see Introduction, this volume). Orders requiring simply monetary compensation are almost always more likely to be complied with than those requiring coordination between government agencies (e.g. Huneeus 2011, 507–508). Well-resourced litigants who do win cases are thus often obliged to ‘work through’ the bureaucracy themselves, distilling judgments into ‘action points’ that are easily understandable by junior officials. Lobbying ministries of justice is of little use. One activist recalled using intermediaries to pass a summary of an ECCJ judgment to the Chief Judge of Lagos ahead of one of his regular visits to prison for ‘jail releases’. This unorthodox method succeeded in securing his client’s release even before an official copy of the relevant judgment was forthcoming from the ECCJ (interview with S Ibe [Open Society Justice Initiatives], 11 August 2016). (Sikiru Alade had been held without trial for almost a decade.)23 The superiority of such ad hoc strategies helps explain how the Registrar can count 13 countries as having enforced a judgment even though only four have officially designated a national authority charged with receiving writs of execution (ECOWAS Court of Justice 2018).24 In 2016, even registry staff themselves were unsure how many states had designated such an authority (interviews, 1 August 2016). Routinising compliance is made still harder by the ECCJ’s ‘“ostrich” approach’ to national legal systems (Ebobrah 2009, 326). Judges on the highest courts can justifiably claim to be confused by the court’s claims to possess no constitutional review powers while still asserting them in human rights cases.25 Most scholars of the Court tend to agree that its jurisprudence would be more effective if ‘domesticated’ into national law (e.g. Enabulele 2010; Ukpe 2017, 563; see more generally Alter 2014a, 282–331). We cannot argue, however, that all this is merely the same ‘bottleneck’ between ‘commitment and compliance’ found in international human rights law enforcement everywhere (Jetschke and Liese 2013, 27). West African states’ ‘commitments’ were products of extraversion rather than tactical concessions, and have been violated in

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principle as well as practice when international image management has allowed it. To date, moreover, efforts to hold states to their broader commitments, and to make them ‘self-entrap’, have remained limited to the narrowest of circles in Abuja. There is as yet no mobilisation remotely comparable, say, to that around sovereign equality and the ICC or the land question in Southern Africa.26 This shallowness of commitment can be easily illustrated. Court staff report that government officials regularly ask in private why judgments are made against them by a court they pay for (interviews with ECCJ Registry officials, 1 August 2016). These same states have repeatedly refused to support proposed appeal mechanisms that would protect their sovereignty: ‘false compliance [and] feigned ignorance’ can achieve almost the same result at reduced cost. To the ire of court reformers, they have recently reduced the number of judges from seven to five (Anaba 2018). At the domestic level, meanwhile, court orders are routinely evaded. In Ayika (2011), Liberia was found to have illegally seized $500,000 from a Nigerian businessman – one of an increasing number of essentially commercial disputes that lawyers have tried to rebrand as violations of a right to property.27 In Abuja, the government claimed to have ‘accepted the ruling’, but it later persuaded its own Supreme Court that ECCJ judgments had no force in Liberian law (Ebobrah 2018, 92–93). At other times, Liberia has been more straightforward, telling a newspaper editor whom it had imprisoned that ‘the ECOWAS court was not an alternative to the Liberian court’ (Ebobrah 2018, 96). In 2016, Sierra Leone was ruled to have illegally removed its vice president, but it ignored the judgment, declaring that the ECCJ ‘does not certainly have the mandate to interpret the constitution of a member states [sic]’ (Kamara and Ngebuva 2016). Its permanent representative to the UN justified this stance by deploying similar arguments about common-law ‘dualism’ that the UK has fortuitously rediscovered when resisting the ECtHR over prisoners’ voting rights (compare Kabs-Kanu 2017 with House of Lords 2015, 16–18; UK Parliament 2010, para. 118). Even the High Court in Ghana – sometimes considered a beacon of human rights in the region – recently agreed with its government that the ECCJ’s repeated assertions of supranationality should be ignored on dualist grounds (Oppong 2017).28 Nigeria, finally – the regional hegemon – has its own long record of noncompliance. Neither the Jonathan nor Buhari regimes have taken steps

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to comply with an ambitious 2012 judgment ordering them to hold multinational oil companies responsible for environmental damage to the Niger Delta and to compensate affected communities (Oluokun 2016). The government has ignored an order to free and compensate imprisoned former National Security Advisor Sambo Dasuki (Amzat and Onyekwere 2018). In early 2018, it had yet to honour even an outof-court settlement reached with victims of the Nigerian Civil War and associated landmining (Nnochiri 2018). Other highly political cases have been brought before the Court, perhaps the most deliberately contentious of these being a demand for $800 million lodged by new Biafran secessionist leader Nnamdi Kanu (Adesomoju 2018; Eribake 2016). But these cases currently appear more likely to elicit evasion and indifference than the kinds of backlash triggered by rulings questioning the legality of ruling regimes in weaker states. Once again, to be clear, we are in no way suggesting that all of this international legal activity is insignificant and should be ignored, as it has been in the supposedly ‘realist’ tradition of international relations. In our other work, we have agreed wholeheartedly with Solomon Ebobrah (2018, 83, 101–102) that even apparently toothless institutions such as the ECCJ can have important effects for the brokering of settlements and the political imagination (Brett 2018b, 110–112, 161–163, 167). What we do mean to suggest, however, is that West African states’ startling record of evading ECCJ rulings is difficult to square with claims that they are sincerely committed to the institution or that non-compliance is simply a technical ‘challenge’ to be overcome in the fullness of time. The fact that the ECtHR took ‘decades to establish’ its authority provides little ground for optimism (cf. Alter 2014a, 106–109; Alter, Helfer, and McAllister 2013, 777). This court was created as an anticommunist totem, and it was only the human rights revolution of the 1970s that transformed it into a truly operational court (e.g. Madsen 2007; Moyn 2010, 78–81).29 In West Africa, some equally dramatic ideological shift would have to be paired with immense increases in state capacity and legitimacy for the ECCJ to ever play such a role. 5.3 Legality As we have seen, resistance in West Africa remains covert rather than overt at the international level. It remains technically true, as the

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Court’s Registrar noted in 2013, that the ECCJ has ‘never been told by any Member State that it will not enforce the judgment of the Court’ (Anene-Maidoh 2013). Domestic audiences and national courts have, however, been told exactly this on a regular basis. In the cases analysed below, such resistance has also been legitimated on more than simply procedural grounds. These cases are not examples of ‘unequivocal human rights abuses that no government openly defended’, such as the Gambia’s harassment, imprisonment and killing of journalists (Alter, Gathii and Helfer 2016, 318). In the case of Burkina Faso, indeed, the country’s most eminent constitutional lawyers would line up to argue that the ECCJ had become an enemy of the rule of law. Like elsewhere in the region, rulings that questioned the legality of the new transitional government undermined its authority in ways that could not simply be evaded in the usual manner. 5.3.1 Senegal Senegal, like Ghana, has often sought to position itself as a regional champion of human rights and international law. Nonetheless, the Hissène Habré saga saw the Wade regime resist the ECCJ until it lost power in 2012. The background to the case is well known.30 Habré was President of Chad from 1982 until 1990, when he sought asylum in Senegal. In 2000, however, he was indicted by a lower court judge in Senegal and a warrant was issued for his arrest in Belgium. In both cases, he was accused of crimes against humanity. For the next five years, an increasingly well-organised transnational campaign to try Habré was continually frustrated by Senegal’s higher courts, which refused to grant these requests. Although President Wade described Habré publicly as little better than a criminal, he remained too attached to sovereign equality principles to openly consent to any process shaped by outside agencies (compare Wade’s hostility towards the ICC in OMCT and FIDH 2010, 86). In 2006, he thus sought to give himself Pan-Africanist cover by obtaining authorisation from the African Union (AU) to try Habré ‘on behalf of Africa’ using a new Senegalese legal framework designed for this purpose. In 2008, Habré’s lawyers went to Abuja objecting to these arrangements, claiming that they applied national law retroactively. In 2010, the ECCJ agreed with them, and ordered that any court Habré

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appeared before had to be of ‘international character’ (Brody 2015, 213). In Celeste Hicks’ (2018, 59–67) words, this was the ‘straw that broke the camel’s back’ for President Wade. The new international process threatened to cost ten times more than the one previously envisaged, and Wade had only reluctantly agreed to even those lower costs when a donor conference had promised the funds. Now he withdrew from all negotiations with the AU and threatened to extradite Habré to Chad in defiance of the ECCJ order. The ‘breakthrough’ for activists would only come with the 2012 election of Macky Sall. The new authorities – notably Aminata Touré, an experienced women’s rights advocate and new Minister of Justice who was genuinely sympathetic to the Habré campaigners – were ‘swamped’ by victims’ groups and Human Rights Watch. Such pressures were increasingly embarrassing for a government that was ‘hoping to project a new era’ (Hicks 2018, 59–67). A ruling by the International Court of Justice (ICJ), organised on sovereign equality principles, was particularly hard to ignore. By December 2012, Extraordinary African Chambers for trying Habré had been established under Senegalese law, and in May 2016 he was sentenced to life imprisonment. The Sall government did not try to use this ‘situational compliance’ with the ECCJ to discredit its predecessor’s snubbing of the Court (e.g. see the very cautiously worded statement in Ben Yahmed 2012). The sovereign equality issues at stake would have made such tactics hard to legitimate. It had no such qualms, however, about making political capital from a separate case that threatened to undermine its claims to superior legality: Karim Wade v Senegal (2013). This was a dispute emerging from the bitterly contested 2012 election campaign. Wade’s attempt to run for a third term had been opposed in the streets from the moment that he obtained approval from the Constitutional Council. The opposition had been led by Y’en a marre (‘We’ve had enough’): the first of a new generation of ‘acephalous’ youth movements to emerge in Sub-Saharan Africa in the wake of the Arab Spring (Banégas 2016; de Heredia 2015). Sall’s campaign focused on Wade’s constitutional manoeuvring and on the numerous corruption allegations surrounding his son Karim: ‘Mr. 15%’ (Kelly 2012). After the election, combating the crimes of the exPresidential ‘clan’ would become an important means of legitimating his new administration. A special court, operating outside the existing legal order and safeguards, was even rediscovered for this purpose. This Court

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for the Repression of Illegal Enrichment had been created in 1981 but never actually used. In 2013, it placed Karim Wade in preventive detention, despite condemnations from various international human rights bodies.31 From his house in Versailles, ex-President Wade began coordinating a legal and diplomatic response. This included asking the ECCJ to rule that his son’s detention was illegal, and to order the government to stop preventing members of the old regime suspected of corruption from leaving the country (Châtelot 2016). To Aminata Touré’s delight, however, the ECCJ would soon validate Karim’s detention (and, by implication, her efforts to criminalise the Wade ‘clan’). While noting that the ECCJ should still be careful not to ‘substitute itself’ for national courts, she nonetheless praised a favourable judgment that left her ‘wholly satisfied and comforts us in our determination to fight against financial delinquency and bad governance at the highest levels of state’ (Ba 2013).32 5.3.2 Niger Few states in the world have lacked capacity and symbolic depth to the degree of Niger (e.g. Hahonou 2015; Meyer 2018, 103–145). Here, legitimation through (mere) legality explains patterns of compliance even more clearly than in Senegal.33 As in neighbouring Burkina Faso, the catalyst for the ECCJ’s involvement was a frustrated effort to amend constitutional term limits. While states might have hoped that the 2001 PDGG would protect them from ‘bottom-up’ coups (see above), external agencies and African lawyer-activists were beginning to use it as a weapon against constitutional term limit extensions (see generally Murray, Alston and Wiebusch 2018). President Mamadou Tandja would soon find this out to his cost.34 His second five-year term was due to expire in December 2009. In May, it appeared as if lobbying by Tandja and his supporters was proving unsuccessful, and that parliament might block any constitutional amendment that allowed him to run again. Opposition parliamentarians had also obtained a ruling from the Constitutional Court that term limits could not be changed. Tandja then dissolved the National Assembly and responded to a Constitutional Court ruling against this move by nominating new judges to its bench under emergency regulations. In August, he had his plans approved by referendum, despite opposition allegations of vote-rigging. The ECCJ would refuse NGO requests to declare the process invalid, arguing that it was not a human rights violation.35 Tandja

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proceeded to seek a third term in December, despite President Compaoré of Burkina Faso claiming to have warned him – ironically, in retrospect – that he was now headed ‘straight into the wall’ (droit dans le mur) (Damiss 2010). Unsurprisingly, Tandja won. But ECOWAS, in a sign of the times, immediately suspended Niger from the Community for contravening its prohibitions on constitutional amendments in the immediate run-up to elections (for the emergence of these sanctions at continental and subregional levels, see Engel 2010). This, then, was the background to the military coup that deposed President Tandja two months later. The new junta justified its seizure of power primarily by reference to the illegality of the Tandja regime and promises to restore democracy and constitutional order. They detained Tandja in one of his official residences and kept him there without trial. The ex-president’s family soon went to Abuja demanding his immediate release. Tandja himself tried to minimise the inevitable accusations of hypocrisy by publicly washing his hands of their request. Only months beforehand, he had denounced ECOWAS for interfering in member states’ affairs. He could hardly now be seen so soon to use it for this very same purpose. International (but not Nigerien) human rights groups supported the family’s campaign, highlighting a long list of international instruments that forbade arbitrary detention (Mounkaïla 2010; RFI 2010). The military government, however, used ECCJ proceedings to openly resist the Court’s authority. Instead of making West African states’ usual list of procedural and jurisdictional objections, it argued only that Tandja’s arrest was justified by its ‘political nature’. This was a defence of the regime’s legitimacy and not one designed to prevail in law. Even Gambian resistance in the courtroom had not been so overt. Unsurprisingly, the ECCJ ruled in favour of Tandja’s relatives, pointing out that it was precisely detention of a ‘political nature’ that the relevant international instruments were designed to guard against.36 The judgment, however, would remain ‘dead letter’ (RFI 2011a).37 5.3.3 Côte d’Ivoire The recent history of Côte d’Ivoire vividly illustrates the ‘lawfare’ characteristic of so much contemporary African politics (e.g. Massoud 2013, 19–31; see more generally Dezalay 2015, 14–15). The aftermath

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of President Laurent Gbagbo’s 2011 deposition provides one of the most dramatic examples to date of a regime criminalising its predecessor after having itself been so criminalised. Gbagbo’s Front Populaire Ivoirien (FPI) became famous for its anti-colonialist rhetoric and revolutionary image, but in fact it placed great store by legality (Piccolino 2014, 62; see more generally Banégas 2006; McGovern 2011, 103–136). Gbagbo had maintained his hold on power thanks partly to new citizenship rules designed to exclude northern and supposedly ‘Burkinabè’ rivals – notably Alassane Ouattara – from competing in elections (see Whitaker 2015). For FPI militants, this was simply a question of law: ‘they explicitly denied that immigration could be seen as a political, rather than legal-administrative, question’ (Piccolino 2014, 55). And they used similar tactics to delegitimise a 2002 peace agreement with northern rebels that was negotiated and policed by France, ECOWAS and the UN. The FPI ‘sacralised’ the constitution and claimed that the law left them no choice but to oppose any external authority recognising domestic ‘terrorists’ (Piccolino 2014, 56–57; cf. Dezalay 2007). ECOWAS and WAEMU thus became illegal organisations and neo-colonial puppets. The limits of this strategy were, however, cruelly exposed by the disputed presidential elections of 2010. In its desperate efforts to declare Gbagbo the winner, the Constitutional Council ended up having to violate the Ivorian electoral code. The FPI was now self-entrapped by its prior insistence on legality. This strategy had never been ‘merely’ rhetoric, and now it made an important contribution to the government’s downfall: ‘as in the past, the camp présidentiel tried to resort to juridical formalism’, but ‘the weakness of the legal arguments was not an insignificant factor in the almost unanimous opposition that Gbagbo met at the international level’ (Piccolino 2012, 22; 2014, 62). With French intervention looming, Gbagbo resorted to desperate measures. Claiming still to act on behalf of the state, he asked the ECCJ and the WAEMU Court of Justice to rule that the regional institutions had illegally recognised Ouattara as victor. Côte d’Ivoire, his lawyers argued, was ‘entirely and totally sovereign’. These complaints were not examined for procedural reasons (RFI 2011b; Zongo 2016, 5). But they still allowed Gbagbo’s critics to draw an analogy with President Tandja of Niger: another leader who had denounced ECOWAS’ authority when in power only to seek assistance from its Court

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in his hour of need (Ouoba 2011). And such analogies only became more plausible over time, as Gbagbo and his family turned to the ECCJ repeatedly to protect themselves from ICC prosecution and ‘victor’s justice’ under President Ouattara’s new regime.38 The Abuja Court, however, found procedural means of avoiding challenging the legality of the new Ivorian government, thus saving it – at least in one commentator’s view – from the same fate as the SADC Tribunal (Ntwari 2013, 11).39 5.3.4 Burkina Faso Two years later, the ECCJ would show no such deference and would succeed in provoking active resistance from lawyers and activists identifying as guardians of the rule of law.40 Its ruling in CDP (2015) briefly dominated political debate in Burkina Faso, during the last days of a transitional government that took power after the famous ‘insurrection’ of October 2014. To explain the furious reaction to CDP, however, we must first understand how legality came to assume such prominence in the Burkinabè ‘culture of protest’. In its first two decades of independence, the new state of Upper Volta made only sporadic efforts to break ties with France, the former colonial power, or to extend its authority into those rural areas where most of its population lived (see Beucher 2011, 689–692). Urban politics, however, soon became characterised by a combination of radicalism and effectiveness rarely found elsewhere in the region. In 1966, an urban alliance of trade unionists, soldiers and students ousted its first president (Maurice Yaméogo) by taking to the streets. And a similar coalition of forces would be largely responsible for sustaining the revolutionary military regime of Thomas Sankara (1983–1987) in its early years. Sankara’s government sought to symbolically break with France and build a genuinely national state, which he now named Burkina Faso (Land of the Upright Men) (see Beucher 2010; Englebert 1996, 43–76; 150–156). This project was, however, beset with numerous difficulties from the outset. Throughout its brief history, as Ernest Harsch (2017, 4) puts it, ‘the state’s limited legitimate authority meant that officeholders relied excessively on coercive authority’ [emphasis in original]. For all of Sankara’s undoubted charisma and personal integrity, this legacy could hardly be undone through sheer integrity and enthusiasm. Blaise Compaoré, one of Sankara’s closest allies, could easily capitalise on the inevitable discontent fuelled by austerity measures

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and adventurist foreign policy (e.g. Beucher 2011, 694–695; 2018, 43–44). Some traditional authorities in rural areas, in particular, began by supporting the government that Compaoré headed after organising Sankara’s assassination. Urban youth, by contrast, would soon contrast Sankara’s ‘martyrdom’ with the corruption of the new Compaoré regime (e.g. Harsch 2014, 69–83). Organised opposition to Compaoré intensified after the brutal assassination of investigative journalist Norbert Zongo in 1998. The deaths of Sankara and Zongo became emblematic of the coercive nature of the state. Even the most revolutionary of opposition demands, however – including those emanating from communist-affiliated trade unions – were now framed in terms of ‘the rule of law and defence of constitutional rights’ (Harsch 2017, 179). This was a striking shift reflective of broader postCold War ideological realignments. Incumbency provided Compaoré’s Congrès pour la Démocratie et le Progrès (CDP) with innumerable electoral advantages over a fragmented opposition. Its spending on the 2005 election campaign, for example, appears to have been at least 80 times that of its nearest competitor (Harsch 2017, 134). This uneven playing field resulted in the law governing term limits becoming the most keenly contested battleground for politics in the 2000s. Jurists opposed to the regime were bitterly disappointed in 2005 when the Constitutional Council ruled before the election that Compaoré could run again not just once, but twice (e.g. Loada 2006). (Article 37 of the April 2000 constitution stated that the president was only ‘re-electable once’ for a five-year term, but the Council refused to apply this to those terms Compaoré had already served in the 1990s.) Opposition outrage was redoubled when the clan présidentiel began advocating a constitutional amendment that would allow Compaoré to run again in 2015. Defending Article 37 now provided a rallying point for a whole range of urban economic grievances filtered through Burkinabè protest culture (Chouli 2015; Hagberg 2015; Harsch 2017). On 21 October 2014, despite increasing pressure from the streets, an extraordinary meeting of ministers decided to ask parliament to authorise a referendum on its modification. The next week saw the largest mass mobilisation in the country’s history, and on 30 October – the day of the planned vote – the National Assembly was surrounded and burned. By the next day, Compaoré had been airlifted to Côte d’Ivoire in a French helicopter.

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Fraught negotiations in the weeks that followed eventually produced a transitional government composed of representatives from the army, civil society and (primarily opposition) parliamentarians. Inevitably, these new authorities struggled to satisfy the increasingly vocal demands for rapid economic improvement. They thus focused particularly energetically on highlighting the coercive nature of the criminal regime they had replaced (Carayol 2018; Zeilig 2017). Scholars of the African Court on Human and Peoples’ Rights (ACtHPR) have, for example, noted that Burkina Faso was very unusual in complying with one of its judgments: Zongo v Burkina Faso (2015), in which the state was ordered to compensate Norbert Zongo’s relatives and to investigate his murder (Daly and Wiebusch 2018, 305–306). But as the new Minister of Justice was swift to point out, the new government was in fact desperate to comply for political reasons. They had actually already reopened the investigation. Like a new inquiry into Sankara’s murder, this was designed to highlight Compaoré’s most egregious crimes (Rugiririza 2015; see more generally Beucher 2018, 46–48; Gabriel 2017).41 Almost simultaneously, the government unveiled highly contentious plans to disband the elite Regiment for Presidential Security (RSP), which was accused of Zongo’s killing (see Banégas 2015). In April 2015, with elections looming in six months and popular frustration mounting, a large majority of the National Council for the Transition (NCT) then voted to amend the electoral code in order to create a new category of persons ineligible for election: namely, all those ‘having supported anticonstitutional changes which are an infringement on the principles of democratic change of government, notably to the principle of limited presidential term limits and have led to an insurrection or to any other form of uprising’ (Eizenga 2016, 53–56; Ouedraogo 2016, 198). Politically this provision was clearly aimed at Compaoré’s closest supporters. Yet many of the NCT’s civil society representatives were veterans of both national and Pan-African campaigns for term limits in the 2000s. Accordingly, they placed great emphasis on the new code’s constitutionality. The provision’s drafters therefore took its wording directly from Articles 23–25 of the 2007 African Charter on Democracy, Elections and Governance, and justified it in terms of new democratic norms.42 Nonetheless, just like Laurent’s Gbagbo’s supporters had after his own deposition, those loyal to Compaoré now seized upon an opportunity to expose the new authorities as hypocrites. They accused the NCT

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of acting like ‘World War II Nazis’. At the ECOWAS level, Ivorian President Ouattara started arguing that this ‘exclusion’ was illegal, while the US, in particular, pushed publicly for ‘inclusive’ elections.43 Within a month, potentially excluded members of Compaoré’s presidential majority had challenged the new code at the ECCJ, citing various international guarantees of civil and political rights.44 Burkina Faso’s legal team included the Bar President and a judge (Guy Hervé Kam) who had resigned his post to become a leader of the civil society opposition to Compaoré (see Harsch 2017, 167–168). In court, they did not merely raise procedural objections, as had become common practice for states at the ECCJ. Instead, they justified the new electoral code by reference to an ‘“anti-constitutional” … project’ pursued by sudden converts to rule of law values they had defended for decades.45 On 13 July 2015, the ECCJ dropped a bombshell, finding for the ex-majority and ordering Burkina Faso to remove ‘all obstacles’ to ‘free participation’ in elections. President Kafando almost immediately declared that Burkina Faso would comply as a ‘civilised nation … respectful … of its international engagements’. His government, however, would only promise to ‘examine’ the judgment with the ‘greatest attention’ (Ouedraogo 2016, 217, n. 72). And indeed, most jurists in or associated with the NCT quickly decided that the judgment had to be resisted as contrary to international law: it simply posed too great a threat to the transition’s legitimacy.46 A press conference held at the country’s best-known and best (donor) funded NGO – the Centre for Democratic Governance – criticised it as a ‘political decision’ that was too unclear to be implemented without interpretive clarification from other international courts (Paré 2015).47 The weeks that followed saw some Burkinabè and African jurists based around the world pen detailed criticisms of the judgment (Akandji-Kombé 2015; Amadou Amadou 2015; Hebie 2015). Although the CDP and (to a lesser extent) international donors used the ruling to amplify demands for an end to electoral exclusion, the Constitutional Council came under increasing popular pressure to prevent deputies from the ex-majority from running in October (interview with European donor officials, Ouagadougou, April 2016). In August, when the Council examined objections to candidates’ eligibility, the government continued making great play of legality, arguing that exclusion was actually legal if you followed the ECCJ’s reasoning but ignored its order.48 The Council

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itself was more direct. Noting that the state ‘has not implemented’ the CDP judgment, it granted the government and its supporters their wish: those most directly involved in the attempted amendment of Article 37 were barred from running in October.49 Alter (2014a, 60, 281) argues that in highly sensitive cases such as this, ‘following the clear letter of the law’ may actually be the ‘safest political strategy for legal actors’. This is because the ‘compliance constituencies’ needed to make governments implement international court judgments include ‘actors that are committed to the rule of law as an end to itself’. In CDP, however, many international donors and most of their preferred local partners – including those who had been at the forefront of rule of law struggles – ended up eventually siding with the resistance to the ECCJ.50 Most civil society pressures came from lawyers familiar with the ECCJ but removed from Burkinabè realities.51 At least one eminent West African constitutionalist wrote to a French official based in Burkina Faso to denounce the government’s ‘intolerable’ conduct.52 Femi Falana – the ECCJ’s most frequent user, and perhaps the most important figure in its 2005 transformation – also spoke in favour of the Court (Musari 2015). But such criticism left the government unmoved. In September, meanwhile, pressures to implement CDP disappeared almost overnight. The trigger was an abortive coup, one led by members of the RSP fearing the dissolution of their unit, and perhaps also investigation in connection with the Sankara and Zongo murders (e.g. Jaffré 2015). The putschists’ primary justification was, of course, legalistic: that constitutional order needed to be restored following the illegal exclusion of the ex-majority from the upcoming elections (e.g. Bjarnesen and Lanzano 2015, 3–4). And they soon managed to negotiate a draft political agreement with ECOWAS’ mediators (President Sall of Senegal and President Boni of Benin) that granted them amnesty and annulled the Constitutional Council’s decision not to implement CDP. This convoluted legalism scandalised defenders of the popular insurrection (Saidou 2018, 49–50). Within a week, the coup had been reversed thanks to a combination of (selective) international pressures and popular resistance (see also Banégas 2015; Harsch 2017, 218–220). ‘Excluded’ deputies who had been close to Compaoré suddenly lost all their remaining diplomatic support thanks to the manifest bad faith of

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those acting in their name. Resistance to the ECCJ became mainstream among international agencies. After the coup, CDP lost all its force. As the UN Special Representative for West Africa put it, bluntly: ‘at this point the candidates have been ruled on by the constitutional court of Burkina Faso and that is the legitimate constitutional body so we need to move on with its decision since it’s not appealable anyway’ (Reuters 2015).53 The controversial amendment to the electoral code was only revoked (for straightforwardly political reasons) in July 2018 (Koeta 2018). And in 2016, the President of the Constitutional Council was still happy to publicly defend his defiance of the Abuja court on the grounds that CDP was ‘unjust’ and that the ECCJ did not possess sufficient supranational authority.54 In Burkina Faso, in short, resistance could hardly have been more active or overt, even if the Executive never actually informed the ECCJ that it would ignore CDP. As elsewhere in the region, ‘feigned compliance’ and ‘weapons of the weak’ were only abandoned when legitimacy through legality came under threat. 6 Conclusion The ECCJ, like other international courts in West Africa, was originally the product of extraversion strategies. It was intended to signal the region’s adherence to new trade and integration orthodoxies promoted by international donors. Nevertheless, it was only in the early 2000s that these donors showed any interest in funding the ECCJ. And by then, the Court was already transforming into a human rights court. Lawyers and court reformers succeeded in expanding its jurisdiction by seizing upon a 2001 protocol devised by states to ‘coup-proof’ their regimes. West African leaders had thus ‘self-entrapped’. They then did nothing, however, to obstruct the ECCJ’s transformation (despite what international relations theory would lead us to expect). Instead, they appear to have embraced a new opportunity to position themselves as rule-of-law-respecting states. Early backlash by the Gambia, opposing the Court’s transformation, was not legitimated in terms of this or any other regional norm, and was rejected as a result. This rejection was not evidence, however, that West African states actually wanted effective human rights scrutiny. Although the ECCJ has developed the most impressive jurisprudence of any international court in Africa, it has struggled to obtain compliance with its rulings to an even greater degree

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than similar courts in their infancy. When its rulings have undermined ruling regimes’ domestic claims to legality, meanwhile, they have precipitated open resistance at the national level. Today, it appears as if the ECCJ’s authority hangs in the balance. It could just as easily be fatally eroded by endemic non-compliance as it could be inadvertently bolstered by states’ continued uses of it against their domestic opponents.

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| REGIONAL LEGACIES IN EAST AFRICA

1 Introduction In late 2006, and less than two years after receiving its first case, the East African Court of Justice (EACJ) faced backlash from the regional governments that created it: Kenya, Tanzania and Uganda. The Court was subsequently reformed through a set of amendments to its Constitutive Treaty. These amendments limited individual access, widened the ground for judges’ dismissal, and created an appeals division. The changes were initiated by Kenya, which reacted to an adverse ruling by mobilising the other two members of the East African Community (EAC) against the Court. The ruling had questioned Kenya’s purported election of members to the East African Legislative Assembly (EALA), a body with little political power or independent authority. The case nevertheless had great significance in Kenya as an act of political ‘lawfare’ (see generally Dezalay 2015, 14–15). It was taken to the regional court by members of the country’s ruling coalition who were mobilising against their president. The reaction of Mwai Kibaki’s government should be understood in the context of these volatile political dynamics. Kenya could not, however, reform the EACJ on its own. It needed the support of the other EAC member states. Backlash was only (partially) successful because Tanzania and Uganda were willing to negotiate, adopt and ratify the Treaty amendments. Any account of these developments must explain why the governments of Tanzania and Uganda went along with their Kenyan counterpart in limiting the independence and reach of the Court. The political survival of Mwai Kibaki’s government – an issue so important that it would take Kenya to the brink of civil war a year later – could not by itself, however, legitimate neutering the Court. Having an EACJ was more important to Tanzania and Uganda than was Kibaki’s political future. The Kenyan government thus had to marry

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this argument with another powerful legitimation strategy: appealing to a traumatic history of East African regionalism and arguing that the Court, in its current form, endangered the fragile compromises underpinning the Community’s survival. Keenly aware of earlier failed experiments in East African integration (1967–1977), the three states negotiated a solution to the crisis. Backlash against the EACJ has been understood as an effort to claw back sovereignty from the EAC (Alter, Gathii and Helfer 2016; Onoria 2010). And Kenyan politicians did indeed at least attempt to legitimise court reform this way, leading the Court to criticise their government for ‘still wish[ing] to remain sovereign while they subscribe to the integration objectives that require them to cede a certain amount of their sovereignty’ (Ruhangisa 2011, 33). Such explanations speak to the traditional tension between national and international authority. However, they leave us unable to explain why governments failed to react to the EACJ’s many sovereignty-curbing human rights-related decisions, and why they continually transferred sovereignty to the EAC. As this chapter argues, backlash was motivated by concerns over regime survival rather than national sovereignty. But it was legitimated with reference to both sovereignty and the need to protect a historically fragile EAC. Backlash poses a puzzle of origins: If court authority threatens political power, why build it in the first place? The same governments that challenged the EACJ’s authority had established the Court only six years earlier, equipping it with provisions for referrals by private persons and entities. Why had such a court initially seemed like a good idea? The answers to such questions illuminate governments’ attitudes towards the Court’s authority. East African integration has historical roots that are vital to explaining backlash. This chapter thus begins with a discussion of East African regionalism, before analysing the origins of the EAC and EACJ. It then turns to backlash, explaining Kenya’s attack on the Court and situating it in the broader context of East African political reactions to court decisions. Lastly, the chapter turns to the collective aspect of responses to the Court, seeking to understand why Tanzania and Uganda enabled Kenya’s backlash. This concluding section argues that traumatic narratives of the EAC’s collapse in 1977 created the impetus for reform that would preserve the Community while strengthening control over its judges.

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2 East African Integration The EACJ is the judicial organ of the EAC, which comprises Kenya, Tanzania, Uganda, Rwanda, Burundi and South Sudan. The last three countries, however, only joined the EAC after the Kenyan backlash took place, and therefore ratified an amended EAC Treaty. Tanzania is a member of both the EAC and the Southern African Development Community (SADC) (see Chapter 3, this volume), and thus party to two instances of backlash. The EAC is the revived form of an earlier regional community of the same name, established in 1967 and collapsing a decade later. This earlier EAC was a continuation of British colonial integration schemes dating back to the construction of the Kenya–Uganda Railway (1897–1901). Colonial integration in East Africa was largely ‘driven by financial and budgetary considerations’ (Bach 2016, 18). The first regional institutions were a 1901 Customs Collection Centre and, in 1905, an East African Currency Board and a Postal Union. The EACJ’s predecessor, the East African Court of Appeal (EACA), was established in 1909 and continued to operate until the EAC’s 1977 collapse. A 1917 customs union was followed by several joint institutions and a permanent Secretariat for the Conference of Governors of the three territories. In 1948, the British government established the East Africa High Commission to coordinate inter-territorial affairs, and transformed it into the East African Common Services Organisation after Tanzania’s independence. In 1967, the new republics of Kenya, Tanzania and Uganda replaced this organisation with the first EAC. In contrast to most regional integration projects in Africa today, including those in East Africa, the postcolonial EAC was a PanAfricanist project that was actually meant to integrate its member states (Nye 1967; Shivji 2010). In 1963, new leaders in Kenya (Jomo Kenyatta), Tanganyika (Julius Nyerere) and Uganda (Milton Obote) had announced an intention to create a political federation by the end of the year. An East African Federation was to be ‘a practical step towards the goal of Pan-African unity’ (Kenyatta, Nyerere and Obote, cited in Nye 1967, 4). Tom Mboya, Kenya’s Minister of Justice, explained: ‘to encourage regional cooperation first is bound to lead to wider [Pan-African] cooperation and politics’ (cited in Nye 1967).1

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Nyerere had famously offered to delay Tanganyika’s independence in 1961 in favour of a regional federation, but this proposal had yielded a guarded response from Kenyan and – particularly – Ugandan nationalists (Nye 1967). Federalism, however, proved too ambitious, and a Community took its place. This looser arrangement nonetheless provided for a highly integrated subregion where ‘plenty of sovereign rights were turned over to the community’ (Umbricht 1987, 1). The EAC had a joint parliament, a joint judiciary, and a range of joint assets of strategic importance to the region’s development and integration: East African corporations of railways, airways, harbours, post and telecommunications, a regional university, and regional research institutions. There were East African taxes and customs, a currency and a central bank. When the EAC was dissolved, it took more than nine years of inventory and negotiations to divide the assets and liabilities, including the pensions of over 100,000 former Community staff (Umbricht 1987; see also Ligami 2013). The first EAC suffered from uneven development and a high level of distrust between its three members. Different political economies shaped the diverging perspectives, expectations and incentives of the three states. Each thought that it was bearing an unfair economic burden within the Community (Onyango Ogola et al. 2015, 336). The Ugandan government had derailed the idea of an East African Federation in 1963, while Tanzania became increasingly frustrated with the Community. Comparatively underdeveloped, it argued that it would be unfair to treat the three countries as if they were at the same level economically (Onyango Ogola et al. 2015, 336). Kenyan officials saw their Tanzanian counterparts as wanting ‘to go their own way in isolation without losing the advantages of not being in isolation’ (Bailey 1993, 195). Having the most advanced private and industrial sector, Kenya saw little need for the Community’s redistributive functions. Much changed when Idi Amin ousted Obote in 1971. Nyerere gave sanctuary to Ugandan opposition forces and refused to attend EAC meetings with Amin, who pursued other alignments and joined the Organisation of Islamic Cooperation (OIC). In 1977, the three governments stopped paying their dues, Kenya grounded East African Airlines and recalled its EAC staff, and Tanzania closed its borders with Kenya. A year later, Ugandan forces invaded Tanzania, and were only expelled the following year by Tanzanian forces

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and Obote’s insurgent army. After years of negotiations, a 1984 tripartite Mediation Agreement brokered by the World Bank settled the distribution of liabilities and assets.2 When the EAC was formally dissolved in May 1984, many agreed with Nyerere (1984): ‘I cannot pretend that this is a very proud day for East Africa!’ The Community’s disintegration left a traumatic legacy that is reflected in public discourse about the second EAC. Pundits and politicians regularly discuss whether and how the ‘ghosts’ of the past influence integration today (Kahunga 2012; Oluoch 2013; see also Kayumba 2017; Kenya National Assembly 2007, 1354), while scholars warn of a ‘dangerous dance with the past’ (Kivuva 2014). The EALA refers to the ‘collapse’ of the first EAC in more than half of its public relations publications.3 And it is not uncommon to hear past and present presidents from Kenya, Tanzania and Uganda emphasise that ‘[w]e must learn from history where the first Community was bedevilled by challenges leading to its eventual collapse’ (Jakaya Kikwete, cited in EALA 2013, 12). Finally, widespread shock and outrage accompanied news that Kenya’s Attorney General had celebrated the breakdown of the first EAC with champagne – a dramatic indication of the violation of a regional norm (Kandie 2014; Mutua 2007).4 Clearly, the failure to integrate East Africa was a matter of widespread regret. 2.1 The Second EAC The idea of East African integration resurfaced in October 1991 as part of discussions between Kenya’s Daniel arap Moi, Tanzania’s Ali Hassan Mwinyi and Uganda’s Yoweri Museveni during a Commonwealth Heads of Government Meeting in Harare. The following month, they established a Committee of Ministers to develop a regional integration framework. And in November 1993, they created a Tripartite Commission to promote political, economic, social, cultural and security cooperation.5 This Commission was made up of ministers who had been given an ‘express directive’ to reactivate and deepen regional cooperation (Kessides 2012, 6). Kenya, Tanzania and Uganda discussed the nature of the EAC between 1993 and 1999, with the idea of a regional court emerging in 1997 (Panafrican News Agency 1997). In the first two years of negotiations, they would produce no less than seven different draft treaties.

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The final draft, adopted in November 1999 and entering into force in 2000, established an EAC court more akin to the European Court of Justice (ECJ) and Africa’s ‘new-style’ courts (Alter 2014a, 5–19; see also Chapter 1, this volume) than to its predecessor, the EACA. While the EACJ was officially framed as the revival of the latter, EAC states had in fact created a very different kind of institution. The EACA had been an apex court that heard appeal cases from British-ruled Eastern African territories and, later, the member states of the first EAC. It received cases from national high courts and was limited by national political authority insofar as each parliament determined its jurisdiction and powers. It could hear civil and criminal cases but was not granted jurisdiction over constitutional matters (and, in Tanzania, those relating to charges of treason) (Katende and Kanyeihamba 1973). The EACJ, by contrast, is accessible to private actors, who do not even have to exhaust domestic remedies before initiating complaints. It has compulsory jurisdiction to assess the legality of acts by member states and the EAC Secretariat, can give advisory opinions on questions of law stemming from the Treaty, and is empowered to rule on internal Community staffing matters. The constitutional review role is ‘perhaps the most controversial’ role an international court can have because it involves rejecting policies that may have been legally enacted (Alter 2014a, 16). It was such a conflict that led to backlash, as we shall see below. The EACJ is similar to the the Common Market for Eastern and Southern Africa (COMESA) Court of Justice, which the three East African states had helped establish in 1993. Both courts were framed as mechanisms for governing economic integration, but it nonetheless would be wrong to conclude that they were actually ‘established to ensure trade integration is rule based’ (Gathii 2018, 315; see also Times of Zambia 1997). In fact, they have rarely handled trade issues. The COMESA Court of Justice mainly settles employee issues pertaining to the common market, while the EACJ has become a sort of human rights court (Gathii 2013; 2016; 2018). Governments have not referred their trade disputes to the two regional courts but have preferred to settle them politically. Examples of this include the 2011–2015 Kenya–Uganda disputes over sugar, rice, beef and cigarettes and the 2017–2018 Tanzania–Kenya disputes over grain, livestock, cigarettes and petroleum (The East African 2015; 2018).

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Nor can it be argued, as Alter (2014a, 154) does, that the ‘key impetus’ behind the political support for international courts is ‘distrust of governments’. Regional integration in East Africa has been driven by ‘deals and transactions between national elites’ (Milej 2015, 579; see also Oloka-Onyango 2015). There was no parliamentary or popular call for the EACJ, and national assemblies and civil societies were involved only in a limited sense, if at all. As Kenya’s Dr Kituyi MP explained (Kenya National Assembly 1999, 2596): [T]he main driving force in this [Treaty] negotiations [sic] have been the Ministers, hereby called the council – the Ministers responsible for regional cooperation. The commission [of East African Co-operation] has been a domicile for negotiations, but the most critical work has been the docket of the Ministers, who constitute the council [of Ministers].

Some MPs in the respective parliaments took note of the EAC after dignitaries launched the EAC Secretariat in March 1996. In Kenya, the Committee on Foreign Relations met during 1998 and 1999 to discuss the draft EAC Treaty, but the EACJ did not attract their attention (e.g. see Kenya National Assembly 1999). In Uganda, parliament was simply informed that the EAC Treaty was ‘cleared by the three [East African] attorney-generals and on November 17 [1999] by the cabinet chaired by President Museveni’ (Matsiko 1999). Beyond parliaments, institutionbuilding was characterised by the ‘non-involvement of civil society and other non-state actors in conception, formulation and final packaging of the [EAC] treaty’ (Oloka-Onyango 2015; see also Kayanja 1999). The widespread regret accompanying the EAC’s collapse in 1977 did not, in other words, translate into popular calls for a new integration process. ‘Self-binding’ design features such as private access and compulsory jurisdiction (Alter 2008, 37) are often interpreted as indicating an ambition to ‘lock in’ future governments (Moravcsik 2000, 228). The EACJ and the COMESA Court of Justice bind member governments by means of administrative and constitutional review powers, but such features do not necessarily reveal why states established these courts. The creation of these powers may also be an unintended consequence of emulating European courts or aligning with new global orthodoxies. If East African governments really had aimed to self-bind, it certainly raises the question

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of why they so quickly failed to accept the rulings in Anyang’ Nyong’o (discussed later in this chapter). 2.2 Extraversion The EACJ and COMESA Court of Justice owe their creation to a strategy of extraversion by Eastern and Southern African governments in the late 1990s and early 2000s. This strategy was aimed at major donors such as the European Union (EU), the United States (US), the International Monetary Fund (IMF) and the World Bank. As a result, these external actors’ understandings of the subregions informed the way in which political actors explained the courts and the broader regionalisation processes to their parliaments and populations. This argument is made below with reference to East Africa and the EACJ. East African regionalisation was announced rather than discussed. It was presented to East Africans as an imperative that was imposed by hostile external processes. Tanzania’s Benjamin Mkapa thus portrayed the EAC as a ‘defense against the surging waters of globalisation’ (cited in Maliti 2003), while Moi argued that ‘[w]e must be united to cope with the challenges of globalization … There is no choice. What is important is to know that we need to unite’ (cited in Paul 2001). Mindful of the demise of the first EAC, the official line in the region was that ‘East Africa cannot afford to fail again’ (Redfern 1999). Mwai Kibaki, then leader of Kenya’s opposition, seemed resigned to the fact that ‘somehow along the process, we shall have to have a common court for East Africa’ (Kenya National Assembly 1999, 2600). In these statements, new institutions appeared as inevitable responses to the region’s marginal position in the global economy. As Kenya’s Minister for Tourism, Trade and Industry, Nicholas Biwott, explained, the EAC was ‘our attempt to become part of the globalized world’ (Kenya National Assembly 2000, 807). This discourse of survival amidst globalisation adopted a global script largely written by external powers (Bach 2016; Farrell, Hettne and van Langenhove 2005; Gibb 2009; see also Chapter 1, this volume). On this view, ‘[p]overty in Africa is not caused by globalisation but by marginalisation. The poorest are those who are unconnected to the global economy’ (Clare Short, Britain’s Secretary of State for International Development, cited in Redfern 2001). The Cotonou Agreement between the EU and African, Caribbean and Pacific (ACP) countries, adopted in June 2000,

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contained similar themes. It outlined a ‘partnership centred on … the gradual integration of the ACP countries into the world economy’ and their ability to ‘manage the challenges of globalisation’ (EU–ACP 2000, Article 34). It committed ACP countries to ‘sub-regional integration processes which foster the integration of the ACP countries into the world economy’, while the EU agreed to ‘encourage regional cooperation and progressive integration of macroeconomic and monetary policies’. It also committed the parties to active participation in the World Trade Organization (WTO) (see Article 39(1)), a requirement which the EAC Treaty acknowledged in its preamble. The impetus for East African integration thus derived from the wider regionalisation process promoted by donors, but not through aid conditionalities. Rather, states pre-empted the donor focus on market-driven integration, rule of law, good governance and human rights – part of a long history of successfully reading new trends in development thinking (see Chapter 1, this volume). This pre-emption was possible because key ministers (such as Biwott) were simultaneously engaged in drafting the EAC Treaty and negotiating the EU–ACP partnership agreement. Ministers for East African Cooperation visited the EU during the EAC Treaty drafting process (Jabweli 1998). Although prompted by external necessity rather than Pan-Africanist ideals, the design of the new EAC was nonetheless informed by the founding states’ earlier experiences with regionalism. Principles such as mutual trust, sovereign equality, good neighbourliness and the equitable distribution of benefits were written into the Treaty. Government control over the integration process remained an important priority.6 Executive power was vested in the Summit of Heads of State and the Council of Ministers. EALA laws were subject to approval by the Council and assent by the Summit. In contrast to most other African states, EAC states each created a ministry in charge of Community affairs and appointed ministers that were trusted by the presidents. Staff of the EAC Secretariat have the impression that ‘every act of the Community is subjected to sovereign interests and concerns of the partner states’ (Mwapachu, former EAC Secretary General, cited in Bach 2016, 117). The particular design features of the EACJ and the COMESA Court of Justice stemmed from extraverted strategies calculated to appeal to an EU that was ‘highly invested in promoting its own structures around the

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world, particularly in its [member states’] former colonies’ (Gray 2011, 9). To EU officials, ‘funding of these regional arrangements is a fairly generic policy point on which it is relatively easy to build member state consensus’ (Gray 2011, 7). The new-style design of the EACJ enabled Peter Anyang’ Nyong’o and ten associates to judicialise their conflict with the government. It is to this case and the resulting backlash that this chapter now turns. 3 Backlash The EACJ was reformed in the context of a set of rulings concerning the legality of Kenya’s election of members to the EALA. The case at the centre of the backlash related to the interpretation of Article 50 of the EAC Treaty governing the nomination and election of the Assembly’s representatives. It was initiated on 9 November 2006 by Peter Anyang’ Nyong’o and ten others, and filed against Kenya’s government, the EALA and the EAC.7 Anyang’ Nyong’o and his associates contended that both the election of Kenya’s nine EALA members and the Kenyan rules for EALA elections infringed the EAC Treaty. The EACJ agreed, ruling that Kenya’s parliament did not carry out an election within the meaning of the Treaty, and directed it to organise a new election process. This ruling followed a preliminary injunction barring the swearing-in of EALA members. Anyang’ Nyong’o’s complaint originated in a struggle between two factions of President Mwai Kibaki’s ruling National Rainbow Coalition (NARC). The rules governing Kenyan EALA nominations stipulated that different parties and party coalitions would propose a list of names to the House Business Committee of Kenya’s National Assembly, which would then table the names to parliament for ‘election’. In 2006, reflecting its parliamentary strength, the NARC could nominate five EALA members. Two opposition parties nominated the rest. However, a conflict soon broke out within the NARC over the question of who had the authority to nominate the regional representatives. The contenders were Charity Nguilu, NARC party leader and Minister for Health, and Moody Awori, the vice president, Minister for Home Affairs and Leader of Government Business. The disagreement resulted in the submission of two lists of EALA nominees from the NARC: one drawn up by Nguilu and another by Awori (Kenya National Assembly 2006a, 3216).

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The House Business Committee, led by Awori, decided to forward his list of names to parliament for endorsement, thereby excluding Nguilu’s nominees. Parliament complied, ‘electing’ Kenya’s EALA nominees on 26 October 2006 (Kenya National Assembly 2006a). Anyang’ Nyong’o MP, a former minister in Kibaki’s coalition government, immediately condemned the nomination process in the most dramatic terms imaginable: It will stand in the history of this nation as a shame to a Government that came to power saying its motto is democracy and empowerment. We all feel betrayed and the betrayal is total. While, indeed the mighty will have their way today, those who are not mighty will continue to fight for the right of all Kenyans. (Kenya National Assembly 2006a, 3218)

Another MP, Najib Balala, announced that ‘we will move to the highest court in East Africa, the East African Court of Appeal so that we can challenge all those illegalities that have been created by this House’ (Kenya National Assembly 2006a, 3221). Two weeks later, Anyang’ Nyong’o and ten others took the dispute to the EACJ, which quickly barred the swearing-in of Kenya’s EALA nominees. To Kibaki’s faction, the significance of Anyang’ Nyong’o derived from its claimants rather than its merits. Although apparently meaningless in formal political terms, the Court’s ruling ended up vindicating the ruling coalition’s internal opposition at the very moment that it had just formed a new party coalition – the Orange Democratic Movement (ODM) – to contest the 2007 elections and unseat Kibaki (Omari 2006). The split dated from 2005 and originated from a popular referendum on a new constitution that had been drafted by Kibaki’s government (Berman, Cottrell and Ghai 2009, 494–497). Members of the political elite, some of whom were formally still a part of the government, opposed Kibaki and recommended a rejection of the proposed constitution (Lynch 2006, 244). This Orange faction – a name derived from the symbol for voting ‘no’ – dealt a humiliating blow to Kibaki’s Banana faction: the majority of Kenyans sided with them and voted against the government’s proposals. The Orange campaigners included Ngilu and 11 cabinet ministers who had been dropped in a post-referendum cabinet reshuffle, among them Anyang’ Nyong’o, Balala, Kalonzo Musyoka and Raila Odinga.

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The ousted ministers ‘led a host of NARC MPs’ to make life for the government a ‘nightmare’ (The East African Standard 2007). Observers speculated that ‘the heat in Parliament could force the Government out before next year’ (Obonyo 2006). At the time of the first EACJ ruling, Kibaki and his supporters were thus struggling to stay in power. The referendum result had sowed doubt upon the president’s ability to be reelected in the upcoming December 2007 elections. Political parties were in ‘a state of fluidity’ that made party politics unpredictable and imposed personality-based alliances (Elischer 2013, 86; see also Berman, Cottrell and Ghai 2009). The EACJ’s interim and final decisions in Anyang’ Nyong’o legitimised the government’s adversaries. Among the 11 claimants were MPs and activists from parties affiliated with the new ODM, such as the Liberal Democratic Party, the Democratic Party and FORD–Kenya. The lawyer representing them before the regional court was Mutula Kilonzo, who had been a leading member of the Orange referendum campaign. The interim EACJ ruling thereby caused ‘great ire in Kenya’ (Nsekela 2009, 3). Kibaki and the Minister for the EAC, John Koech, accused the Court of interfering with decisions made by institutions in partner states (The East African 2006; Onoria 2010). They criticised the injunction as an affront to Kenya’s sovereignty. The Minister for Justice and Constitutional Affairs, Martha Karua, asserted that: We elected the [EALA] Members pursuant to rules made by this House [of Parliament]. We are not subject, as a Parliament, to the rulings of the court at the EALA. Even if the hon. Members we elected were rejected, we would return the same ones. This Parliament is not under the jurisdiction of the East African Court of Justice. (Kenya National Assembly 2006b, 4289)

Within days of the injunction, Kenya initiated its campaign against the Court. Alongside the regional negotiations to amend the EAC Treaty, the government tried to intimidate the Court’s two Kenyan judges. They were asked to disqualify themselves from hearing the case (Onoria 2010, 81). When they refused, the government filed a formal application to have them removed from the case because of bias and lack of impartiality (EACJ 2007). This application was dismissed by

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the Court, the judges taking the only course of action available to them to preserve their independence. 3.1 Regime Security Kenya’s attack on the Court fits within a broader pattern of East African governments’ objections to judicial interference. Decisions apparently threatening regime security have long generated adverse reactions. In this respect, Anyang’ Nyong’o resembles a number of other cases, adjudicated both nationally and regionally, that have elicited backlash. In November 2005, for example, Uganda’s paramilitary ‘Black Mamba’ squad stormed the High Court to seize 22 members of the main opposition party, the Forum for Democratic Change (FDC), who were being released on bail (Muyita et al. 2005). The government alleged that they and their leader, the presidential contender Kizza Besigye, belonged to a rebel group, and charged them with treason (Muyita et al. 2005). The matter reached the EACJ (James Katabazi and 21 Others), which found in early November 2007 that Uganda had violated the rule of law and the EAC Treaty by preventing the opposition activists’ release.8 By this time, however, the security of Museveni’s regime was no longer even remotely endangered: the activists had been released, the president had secured another term, the government was preoccupied with its hosting of a Commonwealth Summit a few weeks later, and compliance with the judgment required no further action by Uganda. A similar but much earlier case before the EACA had also seemingly threatened the security of Nyerere’s regime in Tanzania and led to curbs on the Court’s jurisdiction. In Republic v. Michael Kamaliza and Others (1970), the Court acquitted three prominent politicians convicted for treason by the High Court of Tanzania.9 They were rearrested upon their release and parliament soon precluded further action by the EACA when it passed a law that prohibited it from hearing appeals involving treason charges (Katende and Kanyeihamba 1973, 43). The Court’s design – in contrast to that of the treaty-based EACJ – allowed for unilateral changes to its jurisdiction in the relevant member state. Nyerere therefore did not have to persuade regional governments to support his changes. In the even earlier Grace Ibingira and Others v. Uganda (1966), the EACA had been more deferential and averted backlash.10 It determined

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that the arrest and detention of five ministers in Obote’s government was illegal and ordered their release. They were released and rearrested under a new law enacted by presidential decree. Upon ‘realising the Uganda Government’s feelings’, the Court refused then ‘on flimsy grounds’ to declare the second detention illegal (Katende and Kanyeihamba 1973, 43). The matter was of great importance to the regime: the ministers in question had allegedly tried to unseat Obote as prime minister but were foiled by the 1966 coup that made him president (Guweddeko 2013). More recently, in March 2016, the Rwandan government withdrew its provisions for private access to the African Court on Human and Peoples’ Rights (ACtHPR). This followed the Court’s decision to schedule the hearing of Ingabire Victoire Umuhoza v. Rwanda.11 Ingabire is a prominent, jailed opposition politician who had contested the presidency in the 2010 elections. In withdrawing individual access, Rwanda argued, in securitising terms, that it had: realized that the Declaration [accepting the competence of the Court to hear cases from non-governmental organisations (NGOs) and individuals], as it is currently framed, was being exploited and used contrary to the intention behind its making. Specifically, convicted genocide fugitives secured a right to be heard by the Honourable Court, ultimately gaining a platform for re-invention and sanitization [of the genocide] in the guise of defending the rights of the Rwandan People.12

Lastly, and as discussed in Chapter 2 in this volume, Burundi withdrew from the Rome Statute after the International Criminal Court (ICC), in October 2017, launched an investigation into violence targeting those ‘who opposed or were perceived to oppose the ruling party after the announcement … that President Pierre Nkurunziza was going to run for a third term in office’.13 This record should be contrasted with that of litigation by opposition politicians not understood as threatening to the regime. In 2013, for example, Christopher Mtikila won a judicial victory in the ACtHPR: judges upheld his claim that Tanzania violated the African Charter on Human and Peoples’ Rights (ACrHPR) by preventing individuals from running for office independently of a political party.14 This victory, however, did not represent a threat to the ruling Chama Cha Mapinduzi (CCM) party

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because Mtikila had neither power nor popular support. He had run for president in 2005, representing an insignificant opposition party, winning only 0.27 per cent of the vote (Lofchie 2014, 214). Those involved in Kamaliza, Ibingira, Umuhoza and Anyang’ Nyong’o, by contrast, were former cabinet ministers, politicians with real power bases, newspaper editors, and genuine presidential contenders. This focus on regime security helps to explain why governments in East Africa have not attempted backlash against the EACJ when it has criticised governments for human rights violations, even though the Court does not actually have any explicit human rights jurisdiction. EACJ judges have crafted this human rights mandate from ‘elastic’ and ‘teleological or purposive’ interpretations of the EAC Treaty (Gathii 2013, 252, 253). Since Katabazi and 21 Others, the EACJ has ruled in several human rights-related cases against member governments. An EAC protocol extending EACJ jurisdiction to include human rights was proposed in 2005 but was subsequently shelved by member states (Possi 2015). 3.2 Ugandan and Tanzanian Support Kenya’s efforts to constrain the Court only succeeded because Uganda and Tanzania agreed to some kind of reform. Within days of the EALA injunction, Kenya’s Attorney General had already begun ‘a behind-thescenes effort to kill the fledging court’ (Alter, Gathii and Helfer 2016, 302). Court staff worried that the EACJ would go ‘the SADC [Tribunal] direction’.15 This fate did not befall the EACJ, however, because Tanzania and Uganda supported the Court’s continuous existence. Tanzanian officials found the Kenyan approach ‘too extreme’, while the Ugandan government wanted to avoid initiatives that could bring about another EAC collapse (Alter, Gathii and Helfer 2016, 302). The trauma of EAC collapse gave Kenya leverage over these states and facilitated a negotiated solution. Both Uganda and Tanzania had an interest in avoiding the worst-case scenario: Museveni was widely understood to have ambitions to become President of an East African Federation, the stated goal of the EAC (Alter, Gathii and Helfer 2016, 302–303), while in Tanzania Nyerere’s earlier Pan-African commitment to regionalism still helped legitimate the ruling CCM party. The ungainly demise of the first EAC may thus have ultimately protected the EACJ from a fate similar to the SADC Tribunal (see Chapter 3, this volume).

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Simultaneously, other developments were increasing the premium on retaining some form of regional organisation. All three governments were (together with Rwanda and Burundi, who would soon join the EAC) in a process of forming an ‘EAC group’ to collectively negotiate an economic partnership agreement with the EU. EAC integration then achieved ‘new credibility’ when an EAC–EU interim agreement was signed a year later (Bach 2016, 105). According to the Chairman of the Council of Ministers, EU officials at a WTO meeting in October 2006 had described the Community as ‘the most successful illustration of regional integration on the African continent’ (cited in EALA 2007, 5). By mid-2007, he was describing EAC donor relations as having been ‘elevated to their highest level’ (cited in EALA 2007, 5). The budget for 2007/2008 was 26 per cent larger than the previous year. Instead of ‘killing’ the Court, the three EAC states arrived at a formula that clawed back some control over judges and limited court access by political adversaries and other private actors. This formula revised some earlier discussions of court reform. The idea of an Appellate Division, for example, had been discussed as early as 2000, but the idea gained new relevance after Anyang’ Nyong’o (Panafrican News Agency 2000). The Court’s eventual bifurcation was likely inspired by a restructuring of the COMESA Court of Justice in the intervening period.16 In May 2002, COMESA member states (including Kenya and Uganda) had split their subregional court into a First Instance and Appellate Division, providing governments with ‘a safety valve that guaranteed a right of appeal where they were unhappy with a decision of the First Instance Division’ (Gathii 2018, 327). Since then, governments have in fact made some use of the Appellate Divisions of both subregional courts.17 The Appellate Division has become a useful innovation in the eyes of EACJ staff, allowing issues to ‘cool off’ and ‘giv[ing] everyone time to think’.18 These negotiations surrounding the Court’s future began immediately following its issuing of an injunction in Anyang’ Nyong’o. Kenya’s EAC Minister (as Chairman of the Council of Ministers) argued before the Summit that the interim ruling posed ‘serious challenges to the East African Community’ (Koech 2006). The Council was ‘well seized of these challenges and their grave implications [for the EAC]’ and made ‘appropriate proposals’ to the Summit. In response, the heads of state directed that ‘the procedure for the removal of Judges from office provided in the

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Treaty be reviewed with a view to including all possible reasons for removal other than those provided in the Treaty’.19 They also decided that ‘a special Summit be convened very soon to consider and to pronounce itself on the proposed amendments of the Treaty in this regard’. The strong wording of the communiqué – the endorsement of ‘all possible reasons’ to remove judges – is perhaps illustrative of how far Kenya had succeeded in justifying its campaign against the Court, even as its more ‘extreme’ proposals were rejected. Following this meeting, the three attorney generals worked out the compromise that reformed the Court. As a sign of commitment to a negotiated solution, the three presidents adopted the amendments to the EAC Treaty at the earliest opportunity (on the sidelines of the International Conference on the Great Lakes Region in Nairobi in December 2006) and ensured their rapid ratification.20 Since the EALA was suspended and Kenya’s reaction was threatening to the EAC, compliance with Anyang’ Nyong’o became subject to regional deliberation. The Tanzanian and Ugandan members of the EAC’s Sectoral Council on Legal and Judicial Affairs disagreed with Kenya’s interpretation that the selection of EALA nominees was solely a sovereign prerogative. Uganda’s Minister for Justice and Constitutional Affairs, Freddie Ruhindi, argued that it would be ‘unlawful to swear in the very individuals whose selection has been found to be in contravention of the [EAC] treaty’, and Tanzania noted that it considered the judgment binding on all partner states (Mugonyi and Otieno 2007; see also Nyamboga 2007). Both states pressured the Kenyan government to comply with the ruling. It did so, asking parliament to amend the 2001 rules governing EALA elections so that they conformed with the EAC Treaty. Ultimately, however, in a fresh round of EALA elections, the NARC would defuse the situation by nominating only those individuals that had originally been on the vice president’s list. This choice by the coalition reflected the ethnic communities that Kibaki needed to mobilise in the 2007 elections. The NARC’s internal opposition thus formally won the dispute, but Kibaki’s faction ultimately prevailed on whom to send to EALA. 3.3 Legitimation Although regime survival motivated Kenya’s attack on the Court, it was not legitimated regionally in such terms. Kenya suggested, instead, that the EACJ endangered the EAC because the survival of

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the latter depended upon a delicate balance between EAC organs and state sovereignty. Initially, Kenya had tried to legitimate backlash with reference to sovereignty alone. Its Assistant Minister for the EAC and Regional Affairs, Bonny Khalwale, argued that states needed to prevent ‘mischief’ by lawyers who believed that the regional court had genuine supranational authority, when in fact the EACJ was not superior to national courts (cited in Oluoch 2007). Its Attorney General argued that ‘[t]he treaty under which EAC was established provides for sovereignty on certain matters. These include procedures in nominating candidates for EALA’ (cited in Ubwani 2006). Uganda and Tanzania disagreed with this interpretation, as we saw, but they still recognised the need to preserve the EAC given the fragility of earlier regional experiments. Those opposing the reform of the EACJ argued along the same lines, presenting themselves as protecting the EAC from collapse. The East African Law Society, which unsuccessfully challenged the amendments at the EACJ, argued that they ‘may paralyse the Treaty and the Court’ (Donald Deya, cited in The East African Standard 2007). Some Kenyan MPs advanced similar arguments in an effort to undo the Kibaki cabinet’s ratification of the amendments (which had bypassed parliament): [P]erhaps the reason as to why the initial East African Community collapsed in 1977 was lack of proper involvement of the citizenry in its deliberations. There was also the issue of mistrust and disagreement among the Heads of State … Given the central and prominent role that the Parliament of each country plays in governance, and Parliament being an institution of democratically elected representatives of the people, the citizens should be allowed to have a say in effecting such changes to the Treaty by having those changes brought to the National Assembly for ratification. (Mr Cheboi, cited in Kenya National Assembly 2007, 1354–1355) We have the summit of the three Heads of State passing a resolution that is supposed to address an inconvenience they have found in court. Instead of abiding by the court ruling and respecting the court, they go ahead and amend the Treaty … Kenya is actually, increasingly on the way to destroying the East African Community. I say so because, if we have a community that we want to nurture and be senior members of, we should not do the kind of things that Kenya is trying to do. (Mr Maore, cited in Kenya National Assembly 2007, 1372–1373)

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4 Conclusion The first EAC was distinctive because the leadership of its three member states felt a genuine sense of ownership. Regionalism was situated within a Pan-African discourse and organised around economic redistribution and a range of shared institutions. The collapse of the EAC in 1977 left a lasting legacy in the form of a ‘thin’ regionalism. It did not engender a popular call for an East African state, but produced a more limited sense that disintegration is regrettable and something to be avoided. The second EAC owes its existence to strategies of extraversion articulated by means of a global script on marginalisation amidst globalisation. Its court was not intended to self-bind, but still ended up providing for private access. This traumatic history of regionalism provides the normative backdrop for backlash in East Africa. When Kenya’s opposition faction got EACJ support for its ‘lawfare’ against the government, Kenya tried to legitimate neutering the Court with reference to state sovereignty. To Uganda and Tanzania, however, sovereignty alone could not justify actions that threatened to damage the EAC project, such as non-compliance with judicial decisions or ‘extreme’ measures against the Court. Only more limited backlash was successful, and was justified as a means of protecting the EAC from itself.

CONCLUSION

In this book, we have offered a new explanation for the African dimensions of the global backlash against international courts. In existing explanations, backlash is triggered by threats to sovereignty or regime interests and is constrained by civil society activism or institutional design. Our argument, by contrast, has focused on legitimation. States have initiated backlash for a variety of reasons, ranging from the selfinterested to the ideological. They have only been able to mobilise support, however, when court rulings have threatened regional and continental legitimation strategies. Regimes targeted by and opposed to the International Criminal Court (ICC) have thus successfully highlighted its incompatibility with African states’ postcolonial and sovereign equality commitments. Zimbabwean nationalist intellectuals failed to persuade Southern African Development Community (SADC) states to see backlash against the SADC Tribunal as a first step towards reclaiming sovereignty. But they nonetheless succeeded in neutering the Court thanks to the increasing power of a regional ‘liberation narrative’ governing land. In West Africa, meanwhile, the Gambia’s attempt to constrain the Court of Justice of the Economic Community of West African States (ECOWAS) failed because it could only be justified in narrowly authoritarian terms. Since then, no other state has sought to coordinate backlash. Active resistance by individual states has, however, been elicited by rulings challenging domestic legitimation through legality. Only in East Africa has backlash been justified in terms of sovereignty, and even here the (relative) success of Kenyan strategies is only understandable when shared memories of East Africa’s unique experience with integration is taken into account. These kinds of interpretive considerations have long been a feature of the study of international courts in Europe and Latin America, but largely absent from the first attempts to explain backlash in Africa or more generally (compare Huneeus 2010; Rasmussen 2008 with Alter, Gathii and Helfer 2016; Sandholtz, Bei and Caldwell 2018). As illustrated

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by the East African case, analysed in Chapter 5 in this volume, political actors can only perceive and prioritise interests thanks to cognitive shortcuts provided by analogies with past experience. They cannot reason in a vacuum or analyse each situation de novo (Breuning 2007, 53–84). States understood backlash against the East African Court of Justice (EACJ) through the lens of the collapse of the first East African Community (EAC). Negotiations about court design are thus ‘nested’ within shared political histories as well as within broader institutional frameworks (Aggarwal 1998). As illustrated by the West African example, therefore, the shared perceptions of those initiating backlash matter. The Gambia’s status as a subregional pariah thus limited its powers of persuasion in ECOWAS, while Zimbabwe’s campaign against SADC benefited from Robert Mugabe’s prestige as ‘elder statesman’ and stalwart of the liberation struggle. In the Council of Europe, similarly, backlash from dictatorships has undermined the human rights regime to a lesser degree than that coordinated by democracies (e.g. Madsen 2019, 14–15, 18–19). All of this is not, of course, to deny the importance of institutional design or activism in defence of courts. Exit from the ICC has, notably, been easier than exit from regional courts. In part, this is simply because withdrawal did not entail also having to leave a larger economic community. By contrast, the EAC’s consensus decision-making requirements obliged Kenya to negotiate with other member states and thus moderate its plans to neuter the EACJ. Similar requirements in SADC facilitated Zimbabwe’s own efforts to neuter the SADC Tribunal by allowing it to block judicial appointments. In West Africa, meanwhile, civil society activism not only helped save the ECOWAS Community Court of Justice (ECCJ) from Gambian backlash; it also proved vital for the Court’s transformation from a narrowly focused trade court into one of the continent’s most active human rights institutions. As we have argued, however, even these factors are themselves explicable in terms of regional norms. SADC’s decision-making rules, for example, were products of regime solidarity norms derived from the ‘liberation narrative’. Those of the EAC were based on a region-specific sovereignty norm protecting member states from actions by others that might endanger the Community. West African activists, finally, were only able to transform the ECCJ by

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exploiting ECOWAS states’ attempts to legitimate themselves in terms of legality. Our argument also helps explain why the ICC, in particular, has attracted such ferocious criticism. Unlike regional courts, its very constitution has violated the sovereign equality norm governing African international courts.1 Backlash against these other courts has had to be justified with more local notions of legitimate authority. We could have drawn a similar contrast between the ICC and the International Court of Justice (ICJ), an international court that has actually seen increased African engagement in recent years. The ICJ – to which only states can bring disputes, and then only with their consent – embodies sovereign equality. Accordingly, and as illustrated by the Habré case discussed in Chapter 4 in this volume, its rulings have elicited more compliance than other courts. Even ‘hot’ territorial disputes have been referred to the ICJ, such as that between Chad and Libya over the Aouzou Strip (1990/1994) and that between Cameroon and Nigeria over the Bakassi Peninsula (1994/2002), despite the risks associated with losing such contentious cases.2 The one period of coordinated African resistance to the ICJ is revealing in this respect. It came in the late 1960s and followed the decision in South-West Africa (1966) to not examine the legality of South Africa’s annexation of Namibia. For African states, the Court was now complicit in (Southern) Africa’s ongoing exclusion from international society by apartheid (Irwin 2012, 129–132). The next three years saw concentrated diplomatic action around this issue, eventually winning Africa a third guaranteed seat on the Court (Yusuf 2015, 612). In 1971, the ICJ responded by issuing a new and favourable advisory opinion in Namibia, which went out of its way to acknowledge former colonial territories as equal participants in the shaping of international law. The opinion acknowledged self-determination as a legal principle before noting that: The Court must take into consideration the changes which have occurred in the supervening half-century [since 1919], and its interpretation cannot remain unaffected by the subsequent development of law … In this domain, as elsewhere, the corpus iuris gentium has been considerably enriched, and this the Court, if it is faithfully to discharge its functions, may not ignore.3

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Namibia, like Western Sahara (1975), marked a ‘turning point’ in African relations with the ICJ (Yusuf 2015, 612–614). Since the 1970s, African states have made steadily greater use of the Court for adjudicating their disputes: a use they have steadfastly refused to make of those regional courts created thanks to the 1990s ‘rule of law revival’ (see Chapters 3–5, this volume). African states have also accepted the ICJ’s compulsory jurisdiction in far greater numbers than their Asian and Middle Eastern counterparts, an enthusiasm that largely preceded the end of the Cold War.4 More recently, African states have turned to the ICJ in an effort to oppose the violations of sovereign equality described in Chapter 2 in this volume. In the early 2000s – as they were busy ratifying the Rome Statute – the Democratic Republic of the Congo (DRC), Congo and Djibouti lodged complaints at the ICJ alleging that practices of universal jurisdiction by Belgian and French courts violated three important international principles: the ‘principle that a State may not exercise [its authority] on the territory of another State’, the ‘principle of sovereign equality’ among all United Nations (UN) members, and the diplomatic immunity of the indicted minister.5 In Arrest Warrant, the ICJ upheld these complaints by the DRC against Belgium, symbolically demonstrating that states were equal before the ICJ. More significantly perhaps, in 2018, the African Union (AU) took two decisions that confirmed the importance of the ICJ for continental politics. First, and following the ICC ruling on South Africa’s non-cooperation in the case against al-Bashir, the AU Assembly decided to involve the ICJ in its confrontation with the ICC. It decided to seek an advisory opinion from the ICJ on the issue of immunities of heads of state and government and other senior officials. Kenya initiated a process of mobilising the General Assembly to that end, successfully placing the issue on the agenda of the 73rd session (2018/2019) (UN 2018, 7). Second, and in an echo of the earlier anti-colonial agenda of the Organisation of African Unity (OAU), in March 2018 the AU Commission submitted its first ever written statement requesting an advisory opinion on the legal consequences of the 1965 separation of the Chagos Archipelago from Mauritius. The request was successful, and in February 2019 the Court found that the United Kingdom’s (UK) continuing administration

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of the Chagos Islands violates the principle of self-determination and has prevented the decolonisation of Mauritius.6 The AU has thus now begun to engage with the ICJ as an independent entity. Only a few years ago, these assertive African attitudes would have been hard to foresee. Few would have expected African states to adopt an antagonistic stance towards a totemic human rights institution such as the ICC. Only in 2013, for example, Stephen Hopgood (2013, 168) could write of how internal divisions within weak African states would ensure that the continent ‘remains Europe’s “moral laboratory”’. Yet, as described in the Introduction in this volume, a series of geopolitical shifts have combined to allow African states greater autonomy from such Western agendas. Some of the very poorest states, it is true, remain subject to an extraordinary array of interventions in their governance (e.g. Allouche 2017, 235–236; Chasukwa and Banik 2019, 107–108). But the rest have been able to negotiate with emerging powers who are less prescriptive (at least in this sense) and Western and international aid agencies who are increasingly keen to ‘repurpose’ governance and humanitarian aid for more traditional diplomatic functions (Hagmann and Reyntjens 2016; Mangala 2011). Two of the four largest African recipients of Organisation for Economic Co-operation and Development (OECD) aid are Ethiopia (never a party to the ICC) and Kenya (which has coordinated backlash against it) (OECD 2019, 6). Current United States (US) foreign policy orientations, although their prospects are uncertain, do, of course, also favour African states’ autonomy from rule of law scripts. Eduard Jordaan (2016, 498) has found that Obama administration diplomats stopped African states from finding ‘ways to obstruct scrutiny and criticism’ at the United Nations Human Rights Council (UNHRC), and he concludes that the liberal international order does, in this sense, depend upon American power. The Trump administration, however, could hardly have done less to champion international courts in Africa or elsewhere (Patrick 2019; Westcott 2019, 10).7 There are some loose parallels here with the geopolitical shifts that accompanied the last time African states coordinated demands for international legal change: the Third World’s campaign for a New International Economic Order (NIEO) in the 1970s. Then, as now, leaders such as Presidents Boumédiène of Algeria and Nyerere of Tanzania gave institutional access to proponents of radical ideas. Economists who advised Nyerere and his ministers, such as Samir Amin and Reginald

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Green, popularised ‘dependency theories’ that had been developed in Latin America since the 1930s (Dearden 2018; Helleiner 2006, 964; Serra 2014, 24–25). They sought to persuade African leaders that global economic governance had to be reformed before national development was possible (Shaw 1975). Meanwhile, international lawyers such as Mohammed Bedjaoui – later sent by Algeria to the ICJ – promoted new ‘anti-formalist’ theories of international law and sought to persuade African leaders that they could use the UN General Assembly as a kind of world parliament to demand redistribution (Bedjaoui 1979, 177–192; Özsu 2017, 336). Like today, therefore, the objective was not sovereignty per se. Algeria, in particular, however, could only contemplate coordinating these efforts thanks to geopolitical shifts that reduced Western influence. Its dramatically increased oil revenues after 1973, as well as the example of Organization of the Petroleum Exporting Countries (OPEC) cartelisation, inspired hopes that it could subsidise Third World activism elsewhere (see Mortimer 1984). This diffuse sense that a wholesale restructuring of international relations was possible, combined with more substantive material changes, gave the NIEO an air of plausibility in African politics (Gilman 2015). Today, radical voices beseech African leaders to follow this example, and to make the most of the renewed opportunities offered by a changed geopolitical landscape. They have seized upon backlash against international courts to demand reform or even rejection of international law more generally. These voices include that of Mahmood Mamdani, another intellectual once active in Tanzania during the heyday of the NIEO (cf. Mamdani 2018). His writings on the ICC connect a Mazruian critique of unequal responsibilities in the international system with a programme for reforming (rather than overturning) international law (see the discussion of both Mazrui and Mamdani in Chapter 1, this volume). The problem with the ICC, in Mamdani’s view, is not only that it affords the UN Security Council discretion over African politics. Rather, the vague humanitarian ideology that it promotes is responsible for making international law easier to manipulate by the Great Powers, and has thus ushered in a ‘new international regime of trusteeship’. Mamdani (2009, 274–276) asks African states to not be content with backlash against international courts, and instead to resist an ideological shift ‘from law to rights’ and from sovereignty to intervention. Eritrea, more boldly, which – thanks to

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its origins – has never been a friend of the AU, has also urged African states to ‘abandon short-term hair-splitting discussion’ about the technicalities of ICC membership in favour of a similar ‘long-term ... holistic and comprehensive’ approach to ‘global governance structures’ as a whole (Eritrea Mission to AU and UNECA 2013; for background, see Dias and Dorman 2019). In South Africa, finally, the African National Congress (ANC) government’s most radical critics have made similar use of its failure to arrest Sudanese President Omar al-Bashir. They have framed it as the first step on a road to ending neo-colonialism. If international law is a casualty of this process, then so be it: ‘national and continental interests must always supersede any other institution, legal or otherwise’.8 Yet what is striking about such perspectives, once commonplace in radical thought, is how marginal they remain in mainstream political discussion. Even South Africa’s Economic Freedom Fighters (EFF) – the first post-apartheid grouping of any significance to outflank the ruling ANC-led alliance on its populist left – has guarded against conflating backlash against the ICC with backlash against international law or rights more generally. For one thing, the law has simply proved too effective in struggles against the ANC itself (Brett 2018b, 70–73). In its comments on the al-Bashir saga, it restricted itself to radicalising the ANC’s own recently rediscovered language of sovereign equality. It thus wasn’t good enough, the EFF claimed, to simply criticise the Security Council’s referral powers, or to call for all states to be members of the ICC on an equal basis.9 A truly just court, rather, would not only arrest notorious violators of international law such as George W. Bush, Tony Blair and Benjamin Netanyahu. It would also come to South Africa and arrest (then) President Jacob Zuma for colluding with the Great Powers to bring down the Pan-African hero Muammar Gadaffi in Libya.10 By contrast, the liberal Democratic Alliance was ‘isolated’ during these debates and lacked any language of continental solidarity. In Somadoda Fikeni’s words, ‘[o]nce you raise the Omar alBashir issue, the African and Pan African issue stands up’ (Mataboge and Hunter 2015). Sovereign equality, in other words, remains the operative norm of African international relations, even in a country such as South Africa where it must compete with human rights-based international thinking (e.g. Beresford 2015; Jordaan 2010). Much contemporary African backlash simply makes this operative norm explicit. It has yet to evolve into a more comprehensive programme such as the NIEO.

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Any such radical programme would, in any case, now be subject to far greater constraints than its predecessors. In this book, we have focused on explaining backlash rather than assessing its scope and significance. As Alter, Gathii and Helfer (2016) have described, however, even the courts of relatively weak regional economic communities have proved hard to constrain. Neither the EAC, ECOWAS nor SADC are ‘post-national’ in the same sense as the European Union (EU), and none of their courts’ jurisprudence is remotely as bound up with everyday policymaking as, say, the European Court of Justice (ECJ) (see Krisch 2008). Yet even the governments coordinating the backlash against these weaker courts had to ‘expend considerable political capital and effort to achieve … [their] objectives, and … did not succeed immediately or in full’ (Alter, Gathii and Helfer 2016, 315). Sovereign control, meanwhile, is, of course, even harder to assert in the area of trade and investment. Quinn Slobodian (2018, 218–262) has recently described how ‘ordoglobalist’ neo-liberals based in Geneva reacted to the NIEO by seeking to ‘encase’ the global economy in international law. Trade and investment would thus be protected from capricious nationalisms and democracies (see Gill 1998; Hameiri and Jones 2016). Their efforts have contributed, alongside innumerable other factors, to the emergence of a ‘new terrain of international law’ over the last four decades; a fiercely complicated international and transnational legal landscape comprised of ‘new-style’ international courts, quasi-judicial arbitral panels, and a whole host of other ‘soft law’ mechanisms (Alter 2014a). None of this can be straightforwardly undone. The recent British experience is an eloquent testimony to the degree of political unity and bureaucratic capacity that would be required for the successful reassertion of sovereign control over trade policy, particularly in the most interdependent world regions. The internationalisation of the state and complexity of financial globalisation have, however, made such unity and capacity ever-more elusive. In some regions of Africa, they are little more than a distant dream (for an extreme form of this argument, see de Waal 2015). It may, of course, be true, as Slobodian (2018, 286) claims, that the ordoglobalists have now ‘overreached’, and that we are now living through a more generalised nationalist-democratic backlash. Scholars have, notably, identified a new ‘generation’ of more state-friendly bilateral investment treaties (Schneiderman 2014, 165–166, 175–178;

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Sornarajah 2015). Africa is certainly part of this global trend, as symbolised by the African Development Bank’s creation of an African Legal Support Facility to, inter alia, build states’ capacity in the negotiation of these agreements (e.g. Adams 2015, 2). In Chapter 3 of this volume, we described perhaps the world’s most serious campaign to date to protect states from arbitration hearings initiated by businesses: South Africa’s attempt to protect its Black Economic Empowerment policy. As this chapter also described, however, South Africa was alone among SADC states in having paid any systematic attention to this issue, and even it showed little interest in any broader programme of limiting the role that international law plays in its economic governance. In fact, even some of the most determined backlash by the world’s most powerful states has modified (or even multiplied) international court functions rather than displacing them.11 Canada, for example, has recently prevented President Trump from removing investor–state dispute settlement (ISDS) from the renegotiated North American Free Trade Agreement (NAFTA) (Baker and Keiser 2019, 8). At the time of writing, it remains very unclear how the British government can secure ‘frictionless’ trade with the EU without effectively replicating ECJ jurisprudence (Mariani and Sacerdoti 2019). And even the most radical Latin American states have refused to abandon ISDS entirely following (in)famous arbitration claims, notably relating to oil and gas nationalisations. The most they have proposed to date is a more state-friendly alternative to the Washington-based International Centre for Settlement of Investment Disputes (ICSID) (Grant 2015; Gray forthcoming, 16–17). As Mazower (2012, 377) has written, contemporary backlash against the legal aspects of ‘neo-liberal’ globalisation should thus not be confused with ‘going back to … the days of Third World solidarity’. Such a shift is simply ‘not on the cards’ even if ‘proponents of free markets … can no longer count on sweeping all before them’ (see also Faundez 2018). Sovereign equality may thus be a realistic utopia, but more substantive forms still appear harder to reach. What is clear, above all, is that backlash in Africa has not been against international law as a whole. Historically, most African states, like many others in the old Third World, owed it their very creation and survival.12 Only a few, such as Eritrea, were born in blood (Dias and Dorman 2019, 396–397).13 Their sovereignty has had to be continually performed in the international arena (see Introduction, this volume) and an underlying

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allegiance to the international legal order has had to be continually reinforced. In Reus-Smit’s (2014, 281) words: At the heart of the modern international legal system lies a set of customary norms that uphold the legal equality of all sovereign states … non-Western states have been among the most vigorous proponents and defenders of these cardinal legal norms, and their continued survival as independent political entities depends upon the continued salience of these ideas.

It is hardly surprising, then, that backlash has been expressed internationally in terms of an international legal principle: sovereign equality. Even Russia, indeed, has generally framed its own recent challenges to the status quo in terms of another cardinal principle: self-determination (Borgen 2015; Hetherington and Noble 2018). Of the Great Powers, the US is now perhaps the most vocal in asserting the primacy of ‘righteous might’ over legal order (Bolton 2018; cf. Burnay 2018). And even this may be more of an aspiration than the ‘clear-eyed’ view of international affairs that its proponents take it for (Crawford 2018, 3). James Crawford, a judge at the ICJ, has tried to capture this using the image of international law ‘as a sedimentary formation’. States, he argues: [C]an withdraw from some of its layers of sediment more easily than others. Of course, sediment in time turns to rock, if there is enough of it and it is not eroded. So too with international law. At its base is a solid set of principles, norms and institutions: the fundamentals of the postWar global legal structure. It would be difficult for any state to effect a wholesale withdrawal from this solid base. (Crawford 2018, 21)

Sovereign equality’s resonance cannot, however, be reduced to African states’ need to merely survive. We have argued in this book that it should be understood first and foremost as a function of what Mazrui once labelled a ‘cult of participation in world affairs’. It derives, that is, from a ‘bundle of complexes, aspirations, fears, and values’ born out of Africa’s lengthy and unparalleled exclusion from international society (Mazrui 1964, 499). The primacy of this ‘cult’ can be easily demonstrated with the example of anti-apartheid. South Africa was in no sense a Great Power, and it possessed none of the hegemonic privileges afforded to the Security Council.

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Yet during the Cold War, it and other states under white minority rule were continually singled out for extraordinary criticism of their international arrangements (Donnelly 1988). As Irwin (2012, 5) has written, indeed, ‘the fight against apartheid gave form to the political project known as the Third World’. This project, seemingly incompatible with sovereign equality, becomes easily understandable once seen in terms of an underlying moral imperative that has made the legal principle itself so important. As Young (1987, 425; 1992, 272) noted at the time, apartheid South Africa was hardly unique in its brutality or even in its maintenance of legalised discrimination. For Africans, rather, it was an intolerable ‘racial affront, a permanent question mark over their full membership of the modern world’ (Young 1987, 426). We have argued that the ICC’s exclusive prosecution of African crimes has represented an affront of the same kind, albeit to a much lesser degree. For Africa, even the NIEO, although more detailed and systematic than any other such radical programme, was ultimately rooted in the same quest for recognition by international society. In Hedley Bull’s (1984, 219, 226) words, it represented the latest stage in a gradually unfolding ‘revolt’ against ‘the spiritual or psychological supremacy of the West’ that had characterised anti-colonial politics throughout the twentieth century. These moral underpinnings have become visible in the most unlikely of places. In 1974, for example, Reginald Green managed to conclude a highly technical article on the NIEO’s monetary aspects – written while working as an advisor to the Tanzanian Treasury – with the following extraordinary passage: [T]he starting point on the part of polities with low levels of productive forces and high levels of dependence must be to assert, and to believe: the beauty, and the worth, of themselves, their people, and their selfdetermined aspirations; the legitimacy of defending oneself, by any means including violence; the irrelevance of integration into the world socioeconomic order for the poor and the self-loathing implied by begging for it. (Green 1974, 268) [emphasis in original]

The emotional resonance of these arguments has, of course, made them easier for elites to deploy for their own ends. The ICC example showcases a wide range of motivations behind backlash that we have never sought

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to deny. But we would argue that this deeply unsurprising fact is by itself no justification for refusing to take African states’ reformist demands seriously. As Brad Roth (2011, 88) has argued, sovereign equality is ‘not moral relativism, either in rationale or in effect’. For one thing, it still provides a necessary bulwark against all forms of aggression and territorial expansion, and thus ensures that ‘states can no longer claim, in the name of sovereignty, a freedom to behave in ways that contradict the very purposes for which the international community respects and protects sovereignty’ (Roth 2011, 55; see more generally Gotberg 2009). While aggression had been the international crime at Nuremberg and Tokyo, from the 1970s international lawyers and humanitarians turned their attention to atrocity crimes instead (Moyn forthcoming). For African states, however, aggression would remain an intolerable threat to sovereign equality. Between 1993 and 1997, during the initial negotiation of the Rome Statute, ‘aggression was the crime mentioned most frequently by African states, more often than genocide, crimes against humanity, war crimes and apartheid’ (Gissel 2018b, 743). During the negotiations that finally added this crime to the Statute, ending at Kampala in 2010, the African Group strongly opposed all proposals that the Security Council be allowed prior approval over ICC jurisdiction, and argued against vague ‘threshold’ provisions that threatened to politicise determinations of whether aggression had taken place (Stemmet 2010, 6, 10; Wako 2010). The AU’s Malabo Protocol, meanwhile, defines the crime expansively so that it also targets military alliances such as the North Atlantic Treaty Organization (NATO) (Jalloh 2019, 245). Once again, Africa has thus proved itself to be sovereign equality’s most determined champion. Western leaders, it is true, paid little attention to events at Kampala (Kaul 2011, 5–6). Threats to territorial integrity were simply not pressing concerns in liberal circles when Russia and China were still considered ‘status quo powers’. Since Crimea, however, there has been clear evidence that a serious rethink is now underway (e.g. BBC World Service 2018; Lind and Wohlforth 2019; Wuerth 2018). Those principles that African states have long advocated to protect the weak from the strong may therefore yet be rediscovered in order to protect the strong from their rivals. Sovereign equality, finally, is as much about justice as it is about order (cf. Bull 1971). As Reus-Smit (2013) and others have argued, waves of decolonisation have always been driven by new ideas about

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individual rights. New states have only been granted sovereignty when new sections of humanity have successfully demanded equality. In the words of the Somali president of the ICJ, African leaders argued during decolonisation for: new rules and principles of international law which would put to an end the subjugation and domination of a people by another, be it in the name of a ‘civilizing mission’ or other pretexts based on implied inequality of peoples or imperial expansion. (Yusuf 2015, 611)

Allegations that a neo-colonial agenda lurks behind (some) international legal institutions do, of course, provide authoritarianism with an alibi. But the persistent power of these arguments shows how they have always been more than just that.

NOTES

INTRODUCTION 1  The Central American Court

5  See the comments on Mazrui in

of Justice (1907–1918) – the first ever

Adem (2011, 506–507, 520). For Tieku’s

permanent international court with

debt to Mazrui, see Tieku (2012, 42).

compulsory jurisdiction and individual

This is not to suggest that both authors

access – perished as an indirect result of

have only ever adopted one approach.

rulings against Nicaragua (Cortado 2013). 2  These figures were derived by

Mazrui’s enormous oeuvre was famously heterogeneous, while Tieku’s (2004)

Google Scholar searches for mentions of

empirical work on the AU, for example,

these courts since their creation (1998

does not entirely reflect the approach

for the ICC and 1993 for the ECCJ). These

outlined in Tieku (2012).

searches were conducted on 16 August

6  In some versions of these theories,

2018, two months after the conviction of

of course, language and identity can

Jean-Pierre Bemba (who figures on the

supervene under certain conditions

cover of this book) was overturned.

to reconfigure interests. The sudden

3  Bower (2019) and Mills and

emergence of human rights activism in

Bloomfield (2018) ignore states’ own

‘agentic constructivism’ is an example of

justifications for backlash against the ICC,

this (Sikkink 2011, 235–237).

assuming they primarily challenge the

7  Elsewhere, these authors argue

Court’s anti-impunity norm. International

that states can only be the sources of

normative contexts are ignored in

‘regime-based counter-discourses’ that

Sandholtz, Bei and Caldwell (2018) and

block the spread of rights ideas based

systematically downplayed in Alter, Gathii

on the individual (Risse and Ropp 2013,

and Helfer (2016). Madsen, Cebulak and

15–21). As illustrated below, we are not so

Wiebusch (2018) focus on conceptual

sure that ‘regime-based’ ideas are such a

clarification and the listing of possible

distinct category for analytical purposes.

explanatory mechanisms. 4  We therefore agree with Madsen,

8  Hence, the common phenomenon of indicted leaders such as Laurent

Cebulak and Wiebusch (2018, 199–201)

Gbagbo achieving higher levels of

that much of the existing literature has

popularity outside than inside their own

been ‘state-centric’, in the sense that

countries (see below). There are similar

it has downplayed the importance of

themes in Branch (2011).

‘broader societal cleavages’ legitimating backlash.

9  Grovogui (2011) notably describes how African states denounced the

148 | N OT E S manipulation of open-ended Security

unconvincing claims about post hoc

Council resolutions during the ‘Congo

rationalisation by the Security Council

Crisis’ in the early days of independence.

as its justification. In Southern Africa,

These events did much to determine

meanwhile, 1998 also saw enforcement

subsequent attitudes and help explain

actions launched without Security Council

responses to more recent events in Libya.

mandates: a Zimbabwe-dominated SADC

In 2009, when Muammar Gadaffi was AU

mission to the Democratic Republic of

President, he branded the UN Security

the Congo (DRC) and a South Africa-

Council a ‘terror council’ at the General

dominated SADC mission to Lesotho. By

Assembly, and elicited applause from

2001, however, a weakened Nigeria had

African delegates by calling for the AU to

begun to coordinate its peacekeeping

be permanently represented alongside

activities with the UN, and SADC had

the Permanent Five (Nasaw and Gabbatt

made prior authorisation by the Security

2009). Such appeals were calculated

Council a requirement for enforcement

to help Gadaffi rebuild relationships

action (de Wet 2014, 361–369).

with African states damaged by his interventions in the 1980s. 10  African elites’ consistent preference for the Charter over the

12  Elsewhere, Bull (1984) himself displayed an acute understanding of the African position. 13  This was, of course, also a

UDHR is a theme of Nat Rubner’s (2011)

favourite theme of Frantz Fanon,

important – but as yet unpublished –

another author whose work proved

history of the African Charter on Human

popular with new African elites. Some

and Peoples’ Rights (ACrHPR).

of decolonisation’s under-investigated

11  As many commentators have noted, for example, the Act was remarkable in seemingly permitting enforcement action to prevent war crimes,

psychological dimensions have been explored in Gallagher (2018). 14  The latter is analysed in much more detail by Rubner (2011).

genocide and crimes against humanity

15  Our agreement with Tieku that

without the need for Security Council

such a worldview exists does not entail an

authorisation. This has usually been

endorsement of his attempt to explain it in

understood as a response to the failure

terms of the values underpinning African

of the Security Council to authorise

traditional ways of life.

intervention in Rwanda (e.g. Durward 2006, 359; Omorogbe 2012, 143; de Wet

16  This trend is, of course, both part of and larger than a broader

2014, 354). But as Tieku (2004, 255–260)

rapprochement between politicians

has shown, it also reflected lobbying

and celebrities. There are interesting

of the AU by Nigerian leader Olusegun

discussions of its African dimensions in

Obasanjo during the 1990s. In this period,

Armstrong (2007) and Njororai (2014).

Nigeria, the West African hegemon, had

17  The president of Africa’s largest

intervened in Liberia and Sierra Leone

country (Nigeria) congratulated his country’s

under multilateral cover and with only

2015 World Scrabble Champion by phone,

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| 149

while the head of the Pan-African Scrabble

(2016) define backlash according to its

Federation declared that ‘the whole of Africa

outcomes.

is celebrating this success’ (BBC News 2015).

21  The definition of courts’ authority

The year 2004, meanwhile, saw the death

is discussed at length in Alter, Helfer and

of Power Mike, a Nigerian wrestler who had

Madsen (2018). Our own understanding

become famous during the decolonisation

is the orthodox one that HLA Hart (2012,

era for defeating Europeans in symbolically

82–90) borrowed from Max Weber (1954, 3)

loaded tests of strength. His funeral saw

(see Lacey 2004, 230).

President Obasanjo praise a man who had

22  These authors deploy this

‘brought honour, dignity, and recognition

distinction to distinguish between

to this country and to Africa’, while his

backlash and ‘pushback’, while Sandholtz,

biographer lauded him for doing nothing less

Bei and Caldwell (2018) – like us – use it

than bringing ‘enduring honour to the Black

to distinguish backlash from resistance.

Race, whose full humanity has been viciously

23  This paragraph explains why

tainted by the institutions of slavery,

we do not adopt Madsen, Cebulak and

colonialism and neo-colonialism’

Wiebusch’s (2018) understanding of

(Maduka 2013, iii, 233).

pushback short of backlash as being

18  This argument has sometimes

directed against law rather than

been mischaracterised: Jackson and

institutions. Chapter 4 of this volume

Rosberg (1982, 17) combine a stress on the

describes tacit resistance within the

interests of weak states with a claim about

bounds of the system that nonetheless

the importance of Pan-African ideology.

reflects an underlying rejection of court

19  Sandholtz, Bei and Caldwell (2018, 160) associate their definition with that in Alter, Gathii and Helfer (2016), but in fact

authority rather than dissatisfaction with any particular judgment. 24  This is Chayes and Chayes’ (1995)

include unilateral initiatives excluded by

‘managerial’ approach, which Risse, Ropp

the latter.

and Sikkink (2013) have used to examine

20  We see little evidence for the

international law in areas of ‘limited

claim in Madsen, Cebulak and Wiebusch

statehood’ (see Risse and

(2018, 201) that Alter, Gathii and Helfer

Ropp 2013, 15).

ONE 1  São Tomé and Príncipe and Somalia

2  For important work on Africa’s

are not subject to any international court

international criminal tribunals, see

with compulsory jurisdiction. They have

Carlson (2018) and Hicks (2018) on the

been parties to the International Tribunal

ExAC and Kelsall (2009) on the Special

for the Law of the Sea (ITLOS) since 1987

Court for Sierra Leone (SCSL).

and 1989, respectively, but the Tribunal

3  These courts exhibit differing

only has compulsory jurisdiction when

degrees of ‘hybridity’, with a varying mix

this is granted by a special declaration by

of international and national elements

member states.

such as origins, jurisdiction, staffing

150 | N OT E S and financing. The SCSL is the most

8  African states provided 51 out

internationalised while the CAR’s SCC

of the UN’s 154 members in 1980 and 53

is the least internationalised. (With

out of 192 members in 2009 (Adebajo

no national features, the International

2009, 7).

Criminal Tribunal for Rwanda (ICTR) was

9  See the lists of representatives

not a hybrid, but an ‘ad hoc’, court.) For

in WTO docs MTN.GNG/NG13/INF/1

discussions of hybridity, see

(21 September 1987), MTN.GNG/NG13/

Carlson (2016).

INF/2 (28 September 1989) and MTN.

4  The ITLOS does not have automatic

GNG/NG13/INF/3 (7 February 1990)

jurisdiction over sea-related disputes

for the negotiating group on dispute

pertaining to its states parties. States

settlement and MTN.GNG/NG5/INF/1

parties must make a declaration giving the

(26 October 1987), MTN.GNG/NG5/INF/2

Tribunal jurisdiction.

(25 September 1989), MTN.GNG/NG5/

5  These figures are derived from the

INF/3 (19 December 1989) and MTN.GNG/

WTO (www.wto.org), the ICC (www.icc-cpi.

NG5/INF/4 (26 February 1990) for the

int) and the UN Treaty Collection (https://

negotiating group on agriculture.

treaties.un.org). They were up to date on 17 January 2019. 6  These figures define Asian,

10  See the lists of representatives in WTO docs MTN.GNG/NG6/INF/1 (10 October 1987), MTN.GNG/NG6/INF/2 (19

Pacific and Middle Eastern states as the

October 1989) and MTN.GNG/NG6/INF/3

55 members of the UN’s Asia-Pacific

(8 February 1990).

Group (see www.un.org/depts/DGACM/

11  Malawi and Tanzania, similarly, have

RegionalGroups.shtml). If we focus

consistently refused to submit their long-

instead on the 34 members of the Asia

standing dispute over Lake Nyasa/Malawi

Cooperation Dialogue (thus including

to the SADC Tribunal, despite widespread

most Asian and Middle Eastern states,

expectations among international

but not Jordan, Iraq and Syria), the

observers that they would eventually do

coverage is 71 per cent (24 states) for

so (see Chapter 3, this volume). Contrast

ITLOS, 91 per cent (31 states) for the

this attitude with African states’ relative

WTO Appellate Body and only 24 per

enthusiasm for the ICJ as a mechanism for

cent (8 states) for the ICC (see www.acd-

resolving similar disputes, as described in

dialogue.org).

the Conclusion to this volume.

7  These data are derived from the

12  Western Sahara (or the Sahrawi

UN Treaty Collection (https://treaties.

Arab Democratic Republic) is a disputed

un.org) and the ICC (www.icc-cpi.int), and

territory claimed by Morocco. It has an

are based on membership of the UN’s

independent membership of the AU but not

Asia-Pacific Group. Some 74 per cent of

the UN. The AU support for Western Sahara

the Tribunal’s Asia-Pacific members joined

caused Morocco to leave the regional

after 1991, while 67 per cent of the ICC’s

organisation in 1984, only to rejoin in 2017.

Asia-Pacific members (12 states) joined

The AU thus has 55 members, although

before 2003.

Africa consists of 54 recognised states.

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| 151

TWO 1  High Court of South Africa, ‘Interim

the ambiguous and flexible wording of

order. The Southern Africa Litigation

Resolution 1973 but went ahead to support

Centre v. the Minister of Justice and

it (de Waal 2013, 368). Later, he told the UN

Constitutional Development and Others’,

Security Council that Resolution 1973 was

Case No. 27740/15, 14 June 2015.

‘largely abused in some respects’ (cited in

2  In June 2015, the AU Assembly

de Waal 2013, 367). South Africa’s critique

established the Open-Ended Committee

echoed that of an earlier Brazil, Russia,

of Ministers of Foreign Affairs on the

India, China and South Africa (BRICS)

International Criminal Court, composed of

Summit in April 2011 (Reuters 2011).

15 states parties and 13 non-states parties.

8  In ICC, ‘Decision pursuant to

Once Burundi’s exit took effect in October

Article 87(7) of the Rome Statute on

2017, the Open-Ended Committee included

the failure by the Republic of Malawi to

an equal number of states parties and non-

comply with the cooperation requests

states parties.

issued by the Court with respect to the

3  The Contact Group was composed

arrest and surrender of Omar Hassan

of states parties Burundi, Namibia and

Ahmad Al Bashir’, ICC-02/05-01/09,

Uganda and non-states parties Ethiopia

12 December 2011, p. 7 [underlining

and Mauritania.

in original].

4  Argentina, Benin, Denmark, France,

9  Although throughout this

Greece, Japan, the Philippines, Romania,

chapter we try to avoid homogenising

Russia, the UK and Tanzania were in favour

the African position, it is nonetheless

of the referral. None were against. Algeria,

remarkable that only one states party

Brazil, China and the US abstained the

(Chad) formally dissented against the AU

vote. See UN (2005, 2).

Assembly’s first resolution committing

5  ICJ, ‘Arrest warrant of 11 April 2000

members to not cooperate with the

(Democratic Republic of the Congo v. Belgium)

ICC in its case against al-Bashir. Chad’s

(Merits), judgment’, 14 February 2002.

reasons for such a bold move related to

6  The P3 and five ICC states parties

its proxy war with Darfur rather than

(Argentina, Australia, Guatemala,

support for the ICC. Subsequent

Luxembourg and South Korea) abstained

non-cooperation resolutions saw no

the vote (in effect opposing the draft

formal opposition from states.

resolution), while Azerbaijan, China, Morocco, Pakistan, Russia, Rwanda and Togo voted in favour of it. The proposal

10  Chad, the DRC, Djibouti, Kenya, Malawi, Nigeria, South Africa and Uganda. 11  Democratic Alliance v. Minister of

was sponsored by Burundi, Ethiopia,

International Relations and Cooperation

Gabon, Ghana, Kenya, Mauritania,

2017 (3) SA 212 (G.P) (S. Afr.). See also

Mauritius, Morocco, Namibia, Rwanda,

Boehme (2016).

Senegal, Togo and Uganda. 7  President Zuma had been warned by his Ministry of Foreign Affairs against

12  The proposal to withdraw from the Rome Statute was approved by 94 of Burundi’s 110 National Assembly

152 | N OT E S members; thereafter, the decision was

‘international penal court’ for apartheid

unanimously approved by the Senate

because of previous demands for an

(see http://foreignpolicy.com/2016/10/12/

African criminal chamber. We would like

washington-is-unhappy-that-burundi-is-

to thank Nat Rubner for guidance here.

very-happy-to-be-leaving-the-icc/).

Rubner will expand his 2011 PhD thesis

13  A human rights court was first

on the Charter’s actual origins in

floated at the 1961 African Conference on

a forthcoming book that expands

the Rule of Law in Lagos. As described

these points.

in the previous chapter, however, Kéba

14  Benin, Chad, Comoros, Congo,

M’Baye and others worried that renewed

Ghana, Guinea-Bissau, Kenya, Mauritania,

demands in the 1970s would endanger

Sierra Leone, São Tomé and Príncipe,

the already fragile political compromise

and Uganda.

underpinning an African Charter. There is no evidence that M’Baye referred to an

15  Benin and Tanzania in 2005, and Gabon, Nigeria and South Africa in 2011.

THREE 1  These speculations may have

2  The most analytically serious

originated with Jeremy Gauntlett

of the other analyses of the Tribunal’s

(the lawyer who argued the Campbell

demise is Alter, Gathii and Helfer (2016,

case, which led to the Tribunal being

306–314). This acknowledges the relevant

suspended) (see Gauntlett 2012). Jonas

legitimation contexts in passing but

(2013, 312–313) presents Gauntlett’s

argues that the relative weakness of civil

Malawian speculations as his firm ‘view’

society and the Secretariat was primary.

and Botswanan fears of indigenous

Its conclusions are based on interviews

rights lawsuits as a ‘fact’. Fabricius (2013)

with SADC officials, rather than analysis

attributes to Nicole Fritz – Director of the

of different member states’ positions. We

Southern Africa Litigation Centre – the

highlight differences with our account

mistaken view that the SADC Tribunal

below. After the first draft of this chapter

had in fact ‘adjudicated a complaint

was complete, we also became aware of

from … [Botswana’s] San people about

Achiume (2018). This impressive analysis

being pushed off their land’. Hulse (2012)

comes close to our own on many points

finds authoritarian states’ opposition to

and arrived independently at conclusions

the Tribunal unsurprising, but explains the

already outlined in Brett (2015a; 2015b).

puzzling behaviour of a democracy such as Botswana by repeating the speculations in Gauntlett (2012). These speculations may or may not be correct, but my inquiries with those responsible for them have

3  See also the remarks reported by Fabricius (2013). 4  This section draws on Brett and Gissel (2018). 5  This historical context and

failed to turn up any more

background to Campbell reproduces

substantive rumours.

material from Brett (2018b, 140–150).

N otes

6  See para. 92 of the judgment, available at: www.worldcourts.com/sadct/ eng/decisions/2008.11.28_Campbell_v_ Zimbabwe.htm (accessed 7 January 2010). 7  Compare the stronger support

| 153

the 2012 Summit (Law Society of Namibia 2013–2014; Sasman 2011c; 2012a). 14  The Tribunal was supported by activists, well-known political scientists and Namibian representatives at the

from Minister of Justice Benvinda Levy

embryonic SADC Parliamentary Forum

described in AIM (2012).

(New Era 2018; Sasman 2012c).

8  Hansungule (2013, 138) has also

15  Kabila’s public statements on the

described how a senior GOZ official

Tribunal were carefully guarded, although

declared at an early Tribunal workshop

his government was rumoured in 2011 to

that its nominated judge (Antonina

be exploring the possibility of adding a

Guvava) was ‘too junior to “overrule” the

new appeals chamber (Le Palmarès 2009;

Supreme Court of Zimbabwe while sitting

Sasman 2011b).

at the SADC Tribunal’, despite her actual

16  See https://investmentpolicyhub.

seniority in the rational–legal hierarchy.

unctad.org/IIA/CountryBits/233 (accessed

9  But see also the comment on the late Zambian President Levy Mwanawasa in Ndlovu–Gatsheni (2011, 17, n. 8). 10  Tanzania did, however, host the Court, and its relations with it have been

20 March 2019). 17  See https://wits.worldbank.org/ CountryProfile/en/ZWE (accessed 20 March 2019). 18  In light of recent developments in

strained (see Daly and Wiebusch 2018;

South African politics, it should be noted

de Silva 2019).

that this review predated most of what

11  ‘White flight’ made transitions in Mozambique and Angola very different. 12  The ‘liberation narrative’ might

later became known as ‘state capture’ under President Zuma. It was not primarily or straightforwardly motivated to protect

perhaps be understood as an example

expropriation powers as patronage

of what Risse and Ropp (2013, 15–21)

resources.

describe as a ‘regime-based counter-

19  Some authors also talk of an even

discourse’ to human rights, but only

earlier ‘first generation’ of BITs, referring

with the significant proviso that it both

to those few – comparatively limited in

predates its current liberal rival and

scope – that had been signed during the

enjoys more popular appeal.

geopolitical stasis of the Cold War (e.g.

13  Kawana argued in parliament that individuals should not be allowed to overrule

Finbow 2016, 64–65). 20  Elsewhere in the region, there

national constitutions, and he told the Law

have been changes more limited in scope.

Society that the Tribunal ‘was never created

Mauritius has conducted its own policy

as a human rights institution. It was created

review, Lesotho has been working on

to resolve issues between countries’. The

new investment policies, and Namibia

current Attorney General, Sackey Shangala,

has been revising existing ones (Ngobeni

then with the Law Reform and Development

and Fagbayibo 2015, 177). It should be

Commission, supported the Tribunal before

noted that in Namibia, Black Economic

154 | N OT E S Empowerment has been – if anything – even more central to ruling party ideology (and interests) than in South Africa (see Melber 2014, 143–160). 21  See also paragraphs 7–26 of the 2017 judgment of the Singaporean

22  See paragraphs 46 and 48 of the judgment cited in the note above. 23  Ministries of Finance have thus appointed their own SADC FIP Implementation Coordinators. 24  For the Finmark Trust’s funding,

High Court (SGHC 195) discussed below,

see https://finmark.org.za/tor-financial-

available at: www.italaw.com/sites/

inclusion-specialist/ (accessed 22

default/files/case-documents/italaw9263.

March 2019).

pdf (accessed 20 March 2019).

FOUR 1  The World Bank, in particular,

perhaps only differs in its understanding

favoured more unilateral liberalisation

of why democracies sought to ‘lock in’

measures (see Diop and Lavergne 1993,

domestic democratic development.

5–6; World Bank 1991, 107–108). 2  The number of cases heard by international courts is shown in the pullout chart included with Romano, Alter and Shany (2014). 3  In 1990, four of the ten states

6  We do not argue here that such narratives do in fact unite divided nations (see Lonsdale 2013, 333). 7  Tull and Simons (2017, 88, 95) also highlight the particular prominence of constitutional engineering around term

ranked lowest in the United Nations (UN)

limits in francophone states – in both

Human Development Index were from the

West and Central Africa – and draw

subregion. In 2018, the number was five.

attention to at least one spectacular

4  Guinea perhaps had its own motives for (limited) action (Ellis 1999, 179; Wippman 1993, 168). 5  Hartmann and Striebinger (2015)

example from the Great Lakes: Burundi (Vandeginste 2016). 8  In line with the common African pattern, the Court has not received any

make an argument about this Protocol

inter-state applications or contentious

that is similar in some respects to ours

applications from community institutions

about the PDGG in this paragraph.

(Ebobrah 2018, 84, n. 10).

Autocratic states, in their view, initially

9  The East African Court of Justice

signed it as an exercise in (international)

(EACJ), analysed in the next chapter, is an

legitimation, expecting that it never

exception to this rule.

would be enforced. Subsequently,

10  Ebobrah (2018, 86, 89) describes

however, the new mechanism began

how the Court’s own jurisprudence

to perform important functions, and

quickly sought to constrain this

ECOWAS (very unusually) now regularly

‘practically unlimited’ jurisdiction by

threatens member states with military

making the African Charter its primary

intervention. Our account of the PDGG

source of rights. It also details the

N otes

Court’s refusal to create a requirement to exhaust domestic remedies. 11  The new powers granted to the Commission in 2012 are described

| 155

14  The background was discussed in a famous open letter written by Obasanjo in 2004 (reproduced in Smith 2007, 235). 15  McCully also reported that 110

in ECOWAS’ Supplementary Act (A/

journalists had fled the Gambia since 1994,

SA.13/02/12) and were recently applied

while none had done so previously – a

in Guinea-Bissau (ECOWAS 2018). It is

periodisation that dovetails with that in

rumoured among court observers in

Hultin (2007).

Abuja that direct applicability provisions

16  For the African Court, see www.

were discretely removed from earlier

acdhrs.org/2018/11/the-gambia-african-

versions of this additional protocol

court-directly/ (accessed 20

(interviews, July–August 2016). Gambian

February 2019).

backlash is described below. 12  The eight states are Benin, Burkina

17  Hultin (2007) argues that Gambian support for comparatively

Faso, Côte d’Ivoire, the Gambia, Ghana,

stringent forms of media regulation

Malawi, Mali and Tunisia (https://ijrcenter.

has been grounded in popular

org/regional/african/#African_Court_on_

developmentalist rather than merely

Human_and_Peoples8217_Rights, accessed

authoritarian attitudes. (He does not

20 February 2020). Rwanda and Tanzania

argue that any sizeable constituency

initially granted this access, but withdrew

favours torturing or harassing

it in February 2016 and November 2019,

journalists.)

respectively. 13  Until 2000, Nigeria’s rivalry with

18  Materials relating to Federation of African Journalists (FAJ) and others v

France/Côte d’Ivoire had ensured that

The Gambia are collected at: https://

most EU funding had gone to WAEMU.

globalfreedomofexpression.columbia.edu/

That year’s Cotonou Agreement, however –

cases/federation-african-journalists-

formalising new regionalist orthodoxies –

faj-others-v-gambia/ (accessed 25

soon ensured that a ‘substantial

February 2019).

envelope’ was ‘earmarked to support

19  Compare paragraph 4(1) of

ECOWAS’ (Piccolino 2016, 15). The

the EECJ judgment (pp. 31–32) with

2002–2007 Regional Strategy Paper

paragraph 43 (pp. 15–16) of that of the

identified the ECCJ, for the first time,

Supreme Court. The former is at: https://

as eligible for support from the €118

globalfreedomofexpression.columbia.

million set aside for promoting trade

edu/wp-content/uploads/2016/04/FAJ-

and economic integration (EU 2002,

and-Others-v-The-Gambia-Judgment.

33–34). This, meanwhile, was at a time

pdf (accessed 25 February 2019). The

when member states’ own financial and

latter is at: www.mediadefence.org/

policy commitments to ECOWAS were so

news/gambia-mixed-result-supreme-

weak that Daniel Bach (2004, 74) could

court-delivers-judgment-important-

talk of its ‘de facto transformation into a

constitutional-challenges-free (accessed

multisectoral development agency’.

25 February 2019).

156 | N OT E S 20  Again, we do not mean to suggest

27  Ayika v Liberia, Case No. ECW/CCJ/

by this that African states are immune

APP/07/11, Ruling 19 December 2011. For

from ideological or normative influence.

the framing of property disputes in rights

Mitchell (1990) has accused Scott of

terms, see also Alter, Gathii and Helfer

characterising Malaysian peasants

(2016, 774) and the Ghanaian litigation

this way.

alluded to later in this paragraph.

21  Most of the impact Adjolohoun identifies is jurisprudential. 22  Adjolohoun (2014, 184) manages to calculate an ‘overall compliance’ rate

28  We are very grateful to Cajetan Osisioma for his assistance with Mba v Ghana. 29  Moyn (2010) agrees with Madsen

of 66 per cent with the ECCJ’s early

(2007) on the ECtHR’s genesis but

decisions – higher, strikingly, than that of

explains its transformation differently.

the ECtHR and Inter-American Court of

Alter, Helfer and McAllister’s (2013, 777)

Human Rights (see Hillebrecht 2014, 11,

comparison with the Inter-American

48–51). But by assessing particular cases

Court of Human Rights is perhaps more

differently, and by refusing to count

to the point. This was created in 1979 and

‘situational compliance’ (see below),

steadily became more active thereafter,

Ukaigwe (2016, 99, n. 309) calculates a

even if the 1960 Convention it applies

rate half that of Adjolohoun’s

was originally – to a large extent – a

(cf. Ebobrah 2018, 93, n. 67).

product of Cold War anti-communism

23  The judgment in Alade v Nigeria (2012) is available at: www.

(e.g. Sikkink 2017, 241–243). 30  Unless otherwise indicated, the

opensocietyfoundations.org/litigation/

paragraph below draws on Hicks (2018,

alade-v-federal-republic-nigeria (accessed

59–67). But see also Adjolohoun (2014,

20 March 2019).

172–176) and Gibert (2016).

24  Although Court officials

31  He was sentenced to six years in

frequently bemoan states’ failure to

prison in 2015 but received a presidential

designate a national implementing

pardon the following year (Le Monde 2016).

authority, it is not formally a condition for implementing judgments. 25  An additional source of confusion

32  She also claimed that the ECCJ order to lift restrictions preventing the Wade clan from leaving Senegalese

is the francophone practice of not

territory could be easily sidestepped by

providing writs of execution – a formule

retrospective legalisation. For the order,

exécutoire is simply added to the end of

see Afrique Asie Confidentiel (2013).

the judgment. 26  Various interviewees suggested

33  The unusual symbolic depth of the Senegalese state has often been noted. As

that different leadership of the West

Chabal (2004, 645) once put it, however,

African Bar Association – similar to Femi

‘Senegal is not Africa’.

Falana’s tenure in 2005 – would be the

34  Unless otherwise indicated, the

single change most likely to bring about

next two paragraphs draw on Baudais and

such mobilisation.

Chauzal (2011).

N otes

35  CDD and CDDHDA v Tandja and

| 157

towards the new authorities. In line

Niger, Decision No. ECW/CCJ/JUD/05/11,

with the general regional pattern, the

Ruling 9 May 2011.

government announced an intention to

36  Tandja v Niger, Decision No. ECW/ CCJ/JUD/05/10, Ruling 8 November 2010, para. 19.1. 37  In November 2010, and in the immediate aftermath of judgment, the government declared that it would appeal,

comply without yet actually doing so (Kioko 2019, 58, n. 93). 40  See Brett (2018a) for difficulties in assuming that courts protect their institutional interests. 41  The transitional government

even though there was actually no such

also went a long way towards complying

process. In January 2011, Tandja’s immunity

with an almost simultaneous judgment

was lifted and he was transferred to prison

by the Arusha Court concerning the

after being informed of new corruption

imprisonment of another journalist: Lohé

charges. In April, he was released for 20

Issa Konaté (compare Kioko 2019, 58, n. 93

minutes and then rearrested. He would

with Sawadogo 2015).

only be free definitively in May thanks

42  This ‘direct echo’ has been noted by

to the end of the military regime: a clear

Ouedraogo (2016, 230), and that this echo

case of so-called ‘situational compliance’

was intentional was confirmed in interviews

(Agence de Presse Africaine 2010; Diallo

with former NCT members in April 2016.

2011). The ECCJ’s position was that

Those responsible for the new electoral

judgments could only be revised when

code’s provisions did not then believe it was

new facts were introduced (see David w

yet safe for their identities to be made public.

Uwechue, Decision No. ECW/CCJ/ RUL/-/ 11, Ruling 7 July 2011, para. 12). 38  For the debates about ‘victor’s

43  Ambassador Mushingi of the United States (US) later supported NCT positions and distinguished his

justice’, see Bovcon (2014, 191–194) and

priorities from French ones – an unusual

Jones and Djané (2018, 138). For Simone and

example of proactive US African policy

Michel Gbagbo and the ECCJ, see Rainfroy

under Obama. This account of the

(2016) and Gbagbo v Côte d’Ivoire, Decision

April–May period (in Bernard 2015) was

No. ECW/CCJ/JUD/03/13, Ruling 22 February

corroborated by our April 2016 interviews

2013, paras 4, 5, 39, 41, 99.

with EU and government officials, as

39  The African Court in Arusha,

well as with one member of the former

Tanzania, has not, however, been so

parliamentary majority who had written

reticent. In APDH v Côte d’Ivoire (2016),

pseudonymously on this issue in the

it did what the ECtHR has consistently

national press.

refused to do, and ordered a states party

44  CDP v Burkina Faso, Decision

to amend its electoral law. Poignantly, in

No. ECW/CCJ/JUD/16/15, Ruling 13 July

view of the events that had led to Laurent

2015, para. 8.

Gbagbo’s deposition, it ruled that Côte

45  CDP v Burkina Faso, Decision No.

d’Ivoire’s 2014 electoral law imbalanced

ECW/CCJ/JUD/16/15, Ruling 13 July 2015,

the Independent Electoral Commission

paras 9–12.

158 | N OT E S 46  Abdoulaye Soma and (to a lesser

50  This may be because global

extent) Luc Marius Ibriga advocated a

liberalism’s attachment to the rule of law

different stance.

(like rights or any other specific belief) is

47  Most uncertainty surrounded the scope of the ECCJ’s use of the term ‘leaders’ (dirigeants) to refer to those

only ever instrumental. For that argument, see Young (1995). 51  Here, we ignore those (many)

excluded for supporting unconstitutional

NGOs functioning as transparent fronts

changes of government. For the CDP,

for political parties.

it was ‘clear as spring water’ that this did not apply to the ECCJ plaintiffs (Sou 2015). 48  See p. 3 of the Council’s ruling

52  We were shown this message by another French official in April 2016. 53  Our own interviews with European diplomats in April 2016 confirm that this

on Ambaterdomon Dabire’s appeal

was a consensus position adopted even

against his ineligibility (Decision

by France.

No. 2015-021/CC/E), available at:

54  This position was outlined during

https://burkina24.com/wp-content/

a question-and-answer session organised

uploads/2015/08/D%C3%A9cision-du-

by Point Sud for a group of 20 researchers

Conseil-constitutionnel.pdf (accessed

participating in a workshop at the Centre

27 April 2017).

for Democratic Governance: ‘African

49  See p. 5 of the ruling cited in the

Courts: Institutional Developments and

note above. For a detailed report on the

Governance II’, 20–23 February 2016

outcome, see Siguire (2015).

(authors’ field notes).

FIVE 1  Ghanaian officials were nonetheless largely correct in understanding this ‘stepby-step’ approach as a means of fending

4  Informal conversation with staff at Gulu University, Copenhagen, June 2019. 5  Agreement for the Establishment

off President Nkrumah’s more ambitious

of a Permanent Tripartite Commission for

plans for ‘Union Government Now’ (see

Co-operation Between the Republic of

Serra 2014, 24, n. 50).

Kenya, the United Republic of Tanzania

2  The Mediation Agreement is reproduced in the first schedule of Kenya’s East African Community Mediation Agreement Act 1987, no. 7 of 1987. Available at: www.uaipit.com/en/documentsrecord?/4430 (accessed 19 June 2019). 3  See the Assembly’s magazine,

and the Republic of Uganda (1993), Article 1 (agreement on file with the authors). 6  Phone interview with official of EAC Ministry, June 2018. 7  Prof. Peter Anyang’ Nyong’o and ten others vs. Attorney General of Kenya, Clerk of the East Africa Legislative Assembly

Bunge la Afrika Mashariki, at: www.eala.

and Secretary General of the East African

org/media/resources/category/magazine

Community, EACJ ref. 1 of 2006, Ruling 30

(accessed 3 January 2020).

March 2007.

N otes

8  James Katabazi and 21 Others v. the Secretary General of the East African Community and the Attorney General

| 159

republic-of-tanzania-details (accessed 23 June 2019). 15  EACJ staff to Kerstin Carlson,

of the Republic of Uganda, EACJ ref. 1 of

interview, March 2019, in Arusha. See

2007, Ruling 11 November 2007. Available

Carlson (forthcoming, 2020).

at: https://africanlii.org/node/1970 (accessed 25 June 2019). 9  Republic v. Michael Kamaliza and

16  Compare the almost identical new Articles 23(2)(3) and 24(4)(5) of the EAC Treaty with Articles 19(2) and

Others, East African Court of Appeal, EAC

20(4)(5) of the Treaty Establishing

ref. 103 of 1970.

the Common Market for Eastern and

10  Grace Stuart Ibingira and Others v. Uganda, East African Court of Appeal, EAC ref. 306 of 1966. 11  Ingabire Victoire Umuhoza v. Republic

Southern Africa. 17  See, for example, EACJ Appeal 3/2014, The Attorney General of Tanzania vs African Network for Animal Welfare;

of Rwanda, ACtHPR, no. 3 of 2014. Available

COMESA Court of Justice Appeal 1/2016,

at: http://en.african-court.org/index.

Government of the Republic of Malawi vs

php/56-pending-cases-details/867-app-no-

Malawi Mobile Limited.

003-2014-ingabire-victoire-umuhoza-v-

18  EACJ staff to Kerstin Carlson,

republic-of-rwanda-details (accessed 23

interview, March 2019, in Arusha. See

June 2019).

Carlson (forthcoming, 2020).

12  The Ministry of Justice of the

19  Excerpt from the Communiqué

Republic of Rwanda, ‘Clarification’,

of the 8th EAC Summit (30 November

n.d. Available at: www.minijust.gov.rw/

2006), in East African Law Society

fileadmin/Documents/Photo_News_2016/

and 4 Others vs. The Attorney General

Clarification2.pdf (accessed 23 June 2019).

of the Republic of Kenya and 3 Others,

13  Information on the investigation

EACJ, no. 9 of 2007, p. 3. Available

of the situation in Burundi, n.d. Available

at: http://eacj.eac.int/?cases=eacj-

at: www.icc-cpi.int/burundi (accessed 23

application-no-9-of-2007 (accessed 23

June 2019).

June 2019).

14  Reverend Christopher Mtikila v. The

20  Kenya, Uganda and Tanzania

United Republic of Tanzania, ACtHPR, no.

deposited their instruments of ratification

11 of 2011, Ruling 14 June 2013. Available

of the amendments to the EAC Treaty

at: www.african-court.org/en/index.

with the Secretary General of the EAC on

php/55-finalised-cases-details/843-app-no-

8 January 2007, 26 February 2007 and 19

011-2011-rev-christopher-r-mtikila-v-united-

March 2007, respectively.

CONCLUSION 1  It could be argued that the ECCJ’s

core presumptions, namely that ‘a

claim that its rulings have ‘direct effect’

state’s obligations, while fully binding

violates one of sovereign equality’s

internationally on the state as a corporative

160 | N OT E S entity, are presumed to have legal effect

8  Speech by Nelson Godi,

within the state only to the extent that

Member of the South African National

domestic law has incorporated them’ (Roth

Assembly for the African People’s

2011, 67). This may prove to be a weakness

Convention, during a special sitting

for the ECCJ in the long term, but to date – as

of parliament to debate al-Bashir’s

described in Chapter 4 in this volume –

non-arrest, 23 June 2015. Available

West African states have generally preferred

at: www.youtube.com/watch?time_

to believe, or at least be seen to believe, that

continue=17241&v=sLIOTcmBdUY

its rulings do not have this effect.

(accessed 28 May 2019).

2  It should be noted, however,

9  Contrast the speech by

that both Nigeria and Cameroon have

Obed Bapela, Deputy Minister of

accepted the ICJ’s compulsory jurisdiction

Cooperative Governance and Traditional

(see below). For the Libyan acceptance

Affairs, during a special sitting of

of ICJ jurisdiction in the context of its

parliament to debate al-Bashir’s

normalisation of relations with Sub-

non-arrest, 23 June 2015. Available

Saharan Africa, see Huliaras (2001, 9–11).

at: www.youtube.com/watch?time_

3  See para. 53 of the opinion, available at: www.icj-cij.org/files/caserelated/53/053-19710621-ADV-01-00-EN.pdf (accessed 25 May 2019). 4  Only 5 of the 34 countries

continue=17241&v=sLIOTcmBdUY (accessed 28 May 2019). 10  Speech by Floyd Shivambu, Member of the South African National Assembly for the Economic Freedom

participating in the Asia Cooperation

Fighters, during a special sitting

Dialogue, which federates Asian and

of parliament to debate al-Bashir’s

Middle Eastern states, have accepted this

non-arrest, 23 June 2015. Available

jurisdiction. In late 2018, this compared

at: www.youtube.com/watch?time_

with 22 countries in Africa, 17 of which had

continue=17241&v=sLIOTcmBdUY

accepted it before 1990: www.icj-cij.org/

(accessed 28 May 2019).

en/declarations (accessed 25 May 2019). 5  ICJ (2000) Application instituting

11  More generally, Perrone (2016, 607) argues that none of the new

Proceedings, Arrest Warrant of 11 April

apparently more state-friendly forms of

2000 (Democratic Republic of Congo v.

arbitration ‘reduces the use of contractual

Belgium), 17 October 2000, 3.

techniques, nor changes the transactional

6  ICJ (2019) Legal Consequences of

paradigm in the relations between foreign

the Separation of the Chagos Archipelago

investors and host states’. They thus

from Mauritius in 1965, advisory opinion,

represent ‘continuity’, not ‘rupture’, with

25 February.

neo-liberal constitutionalism.

7  The rule of law is, however, still

12  As noted in the Introduction

cited alongside regional integration as

to this volume, we thus endorse the

part of ‘the usual “doing business” criteria’

famous argument of Jackson and

(Westcott 2019, 8).

Rosberg (1982) once its emphasis on the

N otes

| 161

power of Pan-Africanism has

Terretta (2014). Accepting this point does

been acknowledged.

not entail denying that armed struggle

13  Former white settler colonies are

in a minority of states was central to the

the best-known exceptions to this rule,

decolonisation of the majority (e.g. Cooper

but see also the case of Cameroon in

1996, 389–391).

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INDEX

Note: For abbreviations and acronyms see the full listing on pages xv–xvii. Page numbers in bold indicate tables or figures and n following a page number refers to an endnote with relevant number. ACrHPR see African Charter on Human and Peoples’ Rights ACtHPR see African Court on Human and Peoples’ Rights Adebayor, Emmanuel, 8 Adedeji, Adebayo, 87 Afolabi v Nigeria (2003), 93 African Charter on Human and Peoples’ Rights (ACrHPR), 31, 51 African Court on Human and Peoples’ Rights (ACtHPR): background, 19; creation, 21–2, 31–2; individual, business and NGO access, 18, 71, 94, 98; merger with African Court of Justice, 51; private access backlash, 2, 128; regional criminal chamber, 51–2; Rwanda backlash, 2, 128; Tanzania, 71, 128–9; Zongo v Burkina Faso, 110 African Court of Justice and Human Rights, 51–2, 157n39 African Development Bank, African Legal Support Facility, 142 African Union (AU): and al-Bashir prosecution, 43; challenge to ICC, 4; Contact Group, 37, 151n3; Habré case, 104–5; and ICC, 6; and ICC creation, 27; ICC Withdrawal Strategy, 2, 45, 48–50; and the ICJ, 137–8; Malabo Protocol, 51–2, 54, 145 African Union Assembly: and the ICC, 43–4, 47, 53, 137; and the ICJ, 137; non-cooperation with European courts, 48–9; Open-Ended Committee on the ICC, 37, 49, 52, 151n2 African Union Commission, 43, 52, 137–8

African Union Contact Group, 37 African Union Peace and Security Council, 39 aid: extraversion strategies, 11, 22–3, 57, 58–62; and market integration, 30; rule of law reform programmes, 24–5; trust funds and technical assistance, 27–8; see also donors Alden, C., 73, 76 Algeria, 39, 53, 139 Alter, K.J., 3–4, 18, 21, 66, 67, 69, 72, 84–5, 87, 90, 93, 112, 141 Amin, Idi, 118 Amin, Samir, 22, 139 Anseeuw, W., 73, 76 anti-colonial strategy (patriotic history), 63, 64, 65, 72 anti-imperialism, 68, 69–70 anti-impunity norm, 35, 53–4 Anyang’ Nyong’o case (2007), 115, 124–6 Arab League, 43 Arrest Warrant case (ICJ), 41, 46–7, 137 AU see African Union Awori, Moody, 124–5 Ayika v Liberia (2011), 101 backlash: ACtHPR, 2, 128; compared with resistance, 13; definition, 12–13, 47; East African objections to judicial interference, 127–9; Gambia and the ECCJ, 3–4, 84, 94–5, 96–8; justifications by African states, 2–4; Kenya and the EACJ, 126–7; regional courts, 3–4, 135–6; three types, 47; trade and investment, 141–2; see also

INDEX

East African Court of Justice backlash; International Criminal Court backlash; Southern African Development Community Tribunal backlash Balala, Najib, 125–6 Banda, Joyce, 48, 76 Barrow, Adama, 95, 98 al-Bashir, Omar: arrest, 15; AU request for prosecution deferral, 43, 48, 49; hosting by African states, 48, 140; ICC indictment, 9–10, 34, 38, 40, 41, 42, 51–2, 54; Malawi’s non-arrest, 36, 46, 48 Bayart, J.-F., 11, 12, 22 Bedjaoui, Mohammed, 139 Belgium, ICJ Arrest Warrant case, 41, 46–7, 137 Benin, 39, 41, 49 Biafra, 84, 86, 102 bilateral investment treaties (BITs): long-term consequences, 78; nationalist-democratic backlash, 141–2; proliferation, 78; revision of terms, 57–8; SADC Model BIT (2012), 80–1; scandals, 78–9; terminations, 77 Biwott, Nicholas, 122, 123 Blondy, Alpha, 9 Bossa, Solomy Balungi, 52 Botswana: criticism of Zimbabwe, 71; and ICC withdrawal, 49; indigenous rights, 57, 77; and SADC, 62, 66, 68; and Zimbabwe, 70, 71 Boumédiène, Houari, 138–9 Bull, H., 7, 144 Burkino Faso: abortive coup (2015), 112; coup (2014), 91; and the ECCJ, 103; election (2005), 109; electoral code amendments, 110–11, 113; and ICC withdrawal, 49; on international law, 26; limited legitimate authority, 108–9; poverty, 92; presidential term limits, 109, 110; resistance to ECCJ’s CDP ruling, 108, 111–13; Sankara’s assassination, 109, 110; transitional government, 110; urban politics, 108; Zongo murder, 109, 110

| 211

Burundi, 5, 34, 49–50, 128 Buzan, B., 6 Caholo, Joao, 72–3 Campbell v Zimbabwe (2008), 2, 57, 62–3, 64–5 Canada, NAFTA, 142 Carothers, T., 24 CDP (Congrès pour la Démocratie et le Progrès) (2015) ruling, 108, 111–13 Central American Court of Justice, 56 Chad: Habré trial, 57, 103–4; hosting of al-Bashir, 48; and the ICC, 36, 48, 54; relations with Sudan, 36, 40; and Syrian conflict, 54 Chagos Archipelago, 137–8 China, 11, 32 Chinamasa, Patrick, 65, 66 civil society, 8, 21–2, 111, 112 civil wars: Nigeria, 84, 86, 102; West Africa, 90–1 Clinton, Hillary, 99 Coltart, David, 61 Common Market for Eastern and Southern Africa (COMESA), 29, 30; Court of Justice, 19, 120, 121, 130 Communauté économique de l’Afrique de l’Ouest (CEAO), 86, 88 Compaoré, Blaise, 106, 109–10, 111 compensation payments: ECCJ rulings, 95, 99, 100; for land expropriation, 64–5, 75, 78 Congo, 137 constitutional reform, 24; African Charter on Democracy, Elections and Governance (2007), 110; Burkino Faso, 109, 110–11; presidential term limits, 92, 105–6 constructivism, 21–2, 74 Côte d’Ivoire: and Biafra, 86; civil war, 107; double standards in relation to ECCJ, 107–8; elections (2010), 107–8; electoral laws, 107–8, 157n39; Front Populaire Ivoirien (FPI), 107; Gbagbo’s ICC indictment, 9, 10–11, 15, 97, 108; Gbagbo’s removal, 97; and ICC

212 | I N D E X withdrawal, 49; legitimacy through legality, 92; Liberian conflict, 90–1 Cotonou Agreement (2000), 30, 122–3, 155n13 coups, 91–2, 105, 106 Crawford, J., 143 Darfur, ICC referral, 37, 38–9, 44 Dasuki, Sambo, 102 Déby, Idris, 39 decolonisation, 7, 36–7, 42, 145–6 Democratic Republic of the Congo (DRC): hosting of al-Bashir, 48; and the ICC, 41, 49; ICJ Arrest Warrant case, 41, 46–7, 137; and Zimbabwe, 61, 76 Diouf, Mbaye, 87 Djibouti, 49, 137 Doe, Samuel, 90–1 donors: East African regionalisation, 122–4; ECOWAS, 89–90; emerging donors, 11; extraversion to pre-empt donor pressures, 11, 57, 58–62; governance interventions, 138; post-Cold War decline, 23; rule of law reform projects, 24–5; SADC Tribunal, 57, 61–2, 70 DRC see Democratic Republic of the Congo (DRC) Drogba, Didier, 8 dualism, 101 EAC see East African Community (EAC) EACA see East African Court of Appeal (EACA) EACJ see East African Court of Justice (EACJ) EALA see East African Legislative Assembly (EALA) East Africa, 115–33; legitimation strategies, 92, 115–16, 131–2; regime security cases, 127–9; trade disputes, 31, 120 East African Community (EAC): collapse of first EAC, 118–19, 133; Council of Ministers, 123; establishment of second EAC, 119–22, 133; federal plans, 117–18, 129; historical roots, 117–19; Mediation Agreement, 119; membership, 117;

regionalisation promoted by donors, 122–4; and rule of law, 29; sovereignty tensions, 116; Summit (2006), 130–1; Tripartite Commission, 119 East African Court of Appeal (EACA), 117, 120, 127–8 East African Court of Justice (EACJ), 19; Appellate Division, 130; backlash see below; extraversion strategies to please donors, 122–4; human rights issues, 116, 120, 129; Kenya’s EALA members (Anyang’ Nyong’o) (2007), 115, 124–6, 130–1; non-involvement in trade conflicts, 31; Obote’s government ministers (Ibingira) (1966), 127–8; private access and compulsory jurisdiction, 121–2; reforms, 115, 129–32; role and powers, 120; Uganda’s opposition activists’ bail (Katabazi), 127 East African Court of Justice backlash: Kenyan judges, 126–7; Kenya’s legitimation, 115–16, 131–2; opposition to reform, 132; political background, 124–7, 135; sovereignty issues, 14, 132, 133; support for Kenya from Uganda and Tanzania, 129–31 East African Legislative Assembly (EALA): and collapse of first EAC, 119; compliance with Anyang’ Nyong’o, 131; EACJ ruling on Kenya’s members (Anyang’ Nyong’o), 115, 124–6 Ebobrah, S., 102 ECCJ see ECOWAS Community Court of Justice (ECCJ) ECJ see European Court of Justice (ECJ) Economic Community of Central African States (ECCAS) Court of Justice, 19 Economic Freedom Fighters (South Africa), 75, 140 ECOWAS (Economic Community of West African States): academic articles, 2; Commission’s enforcement powers, 94; early ineffectiveness, 85, 86–7; failure to attract EU funding, 89; governance reforms and international donors, 89–90; Monitoring Group (ECOMOG),

INDEX

90–1; Protocol ... for Conflict Prevention ... Peace-Keeping and Security (1999), 91, 154n5; Protocol on Democracy and Good Governance (PDGG) (2001), 84–5, 91–2, 93, 105; revival, 30 ECOWAS Community Court of Justice (ECCJ), 84–114; Afolabi v Nigeria (2003), 93; avoids challenging new Ivorian government, 107–8; background, 19; CDP (Congrès pour la Démocratie et le Progrès) (2015) ruling, 108, 111–13; compensation payments, 99; creation, 87–8, 89; free movement issues, 93; funding, 94; Gambian media lawsuits, 96; Gambia’s failed backlash, 3–4, 84, 94–5, 96–8, 135; human rights scrutiny, 90, 93, 96–7, 113; individual access, 93; Koraou slavery case, 99; lack of national implementing authorities, 100; non-compliance, 13, 14, 85, 95, 98–102, 156n22; politically contentious cases, 84, 96; reform suggestions, 96; refusal to intervene on electoral issues, 95–6, 105; and sovereign equality, 159n1; West African rulers’ double standards, 105–6, 107–8 ECtHR see European Court of Human Rights (ECtHR) Englebert, P., 23 English School, 4–5, 7 Eritrea, 139–40, 142 Ethiopia, 42, 53, 138 Eurasian Economic Union (EAEU), 1 European Court of Human Rights (ECtHR), 1, 101, 102 European Court of Justice (ECJ), 1, 98–9, 141 European Union (EU): and Burkino Faso, 111; Cotonou Agreement, 30, 122–3, 155n13; East African regionalisation, 122–4, 130; ECCJ and aid conditionalities, 87–8, 155n13; and regional integration, 29–30; SADC establishment and aid conditionalities, 59, 60, 61, 62; Transatlantic Trade and Investment Partnership, 80

| 213

Extraordinary African Chambers (ExAC), 17, 20 extraversion: definition, 22–3; EACJ and COMESA Court of Justice creation, 122–4; ECCJ creation, 85, 87–8, 113; ICC creation, 16; international courts creation, 11, 22–3; SADC Tribunal creation, 57, 58–62; to pre-empt donor pressures, 11, 57, 58–62 Falana, Femi, 112 Finance and Investment Protocol (FIP) (2006), 81–3 Foccart, Jacques, 86 football, 8 Foresti v South Africa (2007), 79 France: and Burkino Faso, 108, 111; and Darfur, 37; influence in West Africa, 86, 88 Freeth, Ben, 64 Fritz, N., 68 Gadaffi, Muammar, 34, 40, 140, 148n9 Gambia: failed ECCJ backlash, 3–4, 84, 94–5, 96–8; ICC withdrawal, 2, 34, 49; journalists’ ECCJ lawsuits, 96, 98, 103; media regulation, 96, 98; pariah status, 4, 97, 97–8, 135 Gathii, J.T., 3–4, 66, 67, 69, 72, 141 GATT (General Agreement on Tariffs and Trade), 25, 28–9 Gbagbo, Laurent, 9, 10–11, 97, 107–8 Geingob, Hage, 68 Ghana, 101 Gibb, R., 12 global courts, 18, 20 globalisation, 122–3, 142 governance: dependency theories, 138–9; Protocol on Democracy and Good Governance (PDGG) (2001), 84–5, 91–2, 93, 105 Green, Reginald, 139, 144 Habré, Hissène, 51, 103–4 Hartmann, C., 89–90

214 | I N D E X Helfer, L.R., 3–4, 66, 67, 69, 72, 84–5, 87, 90, 93, 141 Hillebrecht, C., 13 Höhn, S., 8 Hopgood, S., 138 Houphouët-Boigny, Felix, 86, 88, 91 human rights: EACJ, 116, 120, 129; ECCJ, 90, 93, 96–7, 113; ECOWAS Protocol on Democracy and Good Governance (PDGG), 84–5, 93; instruments, 25, 26; Southern Africa, 2, 60–1, 67 Hydara, Deyda, 98 Ibingira case (1966), 127–8 ICC see International Criminal Court (ICC) ICJ see International Court of Justice (ICJ) ICTR see International Criminal Tribunal for Rwanda (ICTR) ICTY see International Criminal Tribunal for the Former Yugoslavia (ICTY) Iivula-Ithana, Pendukeni, 74 immunities, 4, 45–7, 53, 54, 137 Ingabire, Victoire, 128 Intergovernmental Authority on Development (IGAD), 30 Intergovernmental Authority on Drought and Development (IGADD), 30 International Commission of Jurists, 66 International Court of Justice (ICJ), 18, 20, 41; African relations, 136–7, 160nn2, 4; Arrest Warrant case, 41, 46–7; Chagos Archipelago, 137–8; and status of immunities, 53 international courts: creation explanations, 21–3; global courts, 18, 20; legitimacy for African states, 25–7; proliferation, 17–21, 19–20; to shore up fragile states, 11–12 International Criminal Court (ICC), 34–55; academic articles, 2; adverse impact on peacemaking and stabilisation, 38–40, 52–3; African state officials, 45; Africa’s extraversion strategies, 16; background, 20; backlash see below; al-Bashir’s indictment, 9–10, 15, 34, 38, 40, 41, 42, 51–2, 54; bias against Africa, 40–2; critique, 36–47, 139–40; Darfur referral,

37, 38–9, 44; early African enthusiasm, 18, 31–2, 35; Gbagbo’s indictment, 9, 10–11, 97, 108; Office of the Prosecutor, 52–3; prosecution deferral requests, 42–5; prosecution of non-party states, 45–6; reasons for support, 21; reform proposals, 52–3; and the rule of law, 27; self-entrapment to discredit political opponents, 9–11; and sovereign equality, 16; Syrian conflict referral, 54; UN Security Council involvement, 8, 10, 27, 42–5, 53, 139, 140; see also Rome Statute International Criminal Court Assembly of States Parties, 42, 45, 48, 52, 53, 54 International Criminal Court backlash: crisis in Africa, 34–5; exposure of politicisation, 47–8; justification, 4, 8, 36–7, 48; non-cooperation, 48, 54; Philippines withdrawal, 1; summary, 1–2; withdrawal strategies, 2, 5, 34, 45, 49–50, 54–5, 98 International Criminal Tribunal for the Former Yugoslavia (ICTY), 25–6 International Criminal Tribunal for Rwanda (ICTR), 17, 19, 26, 38 International Institute for Sustainable Development, 80 international law: African allegiance to, 25–7, 142–3; compulsory jurisdiction and adjudication, 25; ICC negotiations, 27; long-term reform, 139–41; postCold War reforms, 23–9; and sovereign equality, 140, 143, 145–6 International Monetary Fund (IMF), 122 international society, 7–8 International Tribunal for the Law of the Sea (ITLOS), 18, 20, 149n1, 150n4 investor-state dispute settlement (ISDS), 77, 80–1, 82; Foresti v South Africa, 79; international backlash, 142; see also bilateral investment treaties (BITs) Italy, South African mining investments, 79 Ivory Coast see Côte d’Ivoire Jammeh, Yahya, 95, 96, 97–8 Jaycox, Edward, 58

INDEX

Jordaan, E., 138 journalists, lawsuits, 96, 98, 103 Kabila, Joseph, 49, 76 Kagame, Paul, 42 Kamaliza case (EACA), 127 Kanu, Nnamdi, 102 Karim Wade v Senegal (2013), 104–5 Karua, Martha, 126 Katabazi case (EACJ), 127, 129 Kawana, Albert, 74 Keita, Salif, 8–9 Kenya: African Court of Justice, 51; compliance with Anyang’ Nyong’o, 131; EACJ reform, 3, 129–31, 132; EACJ ruling on EALA members (Anyang’ Nyong’o), 115, 124–6; and East African integration, 117–22; government officials’ referral, 45; and the ICC, 41, 49, 50; non-use of regional courts, 32, 150n11; post-election violence (2008), 34; referendum on the constitution, 125, 126; trade disputes, 31, 120 Kenyatta, Jomo, 117 Kenyatta, Uhuru, 43, 44–5, 46 Khama, Ian, 70, 71 Kibaki, Mwai, 115, 122, 124, 125–6 Kikwete, Jakaya, 39–40, 70, 71–2 Kilonzo, Mutula, 126 Koech, John, 126 Koraou case (2008), 99 Koraou, Hadijatou, 99 Lamamra, Ramtane, 49 land: Campbell ruling, 2, 57, 62–3, 64–5; liberation movement strategy, 63, 72–4, 76, 83, 134; Zimbabwe’s expropriation, 2, 63–5 land reform, 73–4, 75–6 legitimation strategies: African states, 134; East Africa, 92, 115–16, 131–2; ICC critics, 36–7; participation in international legal regimes, 25–7; and selfentrapment, 5, 9–11, 74, 107–8; state sovereignty, 57; theory, 5; West Africa, 12, 85, 91–2, 102–13; Zimbabwe and

| 215

the SADC, 66; Zimbabwe’s patriotic history, 63, 64, 65, 72 leisure economy, 8–9, 148n17 Lenz, T., 60 Lesotho: and the ICC, 42, 49; and SADC, 62, 76, 81; Swissbourgh Diamond Mines case, 81 liberation movements, 63, 72–4, 76, 83, 134 Liberia: Ayika commercial case (2011), 101; civil war, 90–1; and the ECCJ, 101; and ICC withdrawal, 49 Libya, 43, 44, 45 Lord’s Resistance Army, 39 McAllister, J., 84–5, 87, 90, 93 McGovern, M., 10–11 Magafuli, John, 68 Mahama, John, 44–5, 48 Makoni, Simba, 58–9 Malabo Protocol, 51–2, 54, 145 Malawi: aid suspension, 36, 48; and al-Bashir, 36, 45, 48; border dispute with Tanzania, 76, 150n11; and ICC withdrawal, 49; LGBT interests, 56–7, 77; non-use of regional courts, 150n11 Malema, Julius, 75 Mamdani, M., 9–10, 139 Manneh, Ebrimah, 96 Masisi, Mokgweetsi, 68 Mauritius, 62, 77, 137–8 Mazrui, A.A., 4–5, 7, 143 Mbeki, Thabo, 6, 9, 69, 73–4 Mboya, Tom, 117 military interventions: Libya, 44; West Africa, 90–1, 97–8, 148n11 Mills, K., 4 Mineral and Petroleum Resources Development Act (South Africa), 79 Mkapa, Benjamin, 71, 122 Mnangagwa, Emmerson, 68 Mogae, Festus, 71 Moi, Daniel arap, 119, 122 Mondlane, Luis Antonio, 64 Morocco, 53, 150n12 Mozambique, 49, 68 Mtikila, Christopher, 128–9

216 | I N D E X Mugabe, Robert, 61, 67, 68–9, 75, 76, 135 Museveni, Yoweri, 41, 119, 129 musicians, 8–9 Musyoka, Kalonzo, 126–7 Mutharika, Bingu wa, 76 Mutharika, Peter, 76 Mwinyi, Ali Hassan, 119 NAFTA (North American Free Trade Agreement), 142 Namibia: ICC allegations, 8; ICC withdrawal, 49, 50; ICJ opinions, 136–7; land reform, 73–4, 75–6; and SADC, 62, 66, 68; and Zimbabwe, 69 Nathan, L., 57, 68 Ncube, Welshman, 60–1 Ndlovu-Gatsheni, Sabelo, 68, 71 N’Dour, Youssou, 9 neoliberalism, 24–5, 142 New International Economic Order (NIEO), 25, 138–9, 141, 144 NGOs: access to regional courts, 18; human rights and SADC, 60–1; and the ICC, 34–5; not responsible for courts creation, 21–2; and the SADC, 66 Nguilu, Charity, 124–6 NIEO (New International Economic Order), 25, 138–9, 141, 144 Niger: constitutional irregularities, 105–6; double standards in relation to ECCJ, 105–6; ECCJ (Koraou) slavery ruling, 99; ECCJ rulings, 84, 105–6; military coup, 106; and Rome Statute, 53; suspension from ECOWAS, 106 Nigeria: Afolabi v Nigeria (2003), 93; civil war, 84, 86, 102; ECCJ cases, 84, 102; ECCJ electoral dispute, 95–6; ECCJ non-compliance, 101–2; and the ICC, 49, 50, 54; imprisonment of former National Security Adviser, 102; Liberian conflict, 90–1; military interventions, 148n11; Niger delta pollution, 102; oil revenues, 86–7; and Rome Statute, 53; and Syrian conflict, 54 Nkwinti, Gugile, 75 Non-Aligned Movement, 43

non-compliance: Burkino Faso, 108, 111–13; ECCJ rulings, 13, 85, 95, 98–102, 156n22; Nigeria, 101–2; see also resistance Nyerere, Julius, 6, 117–18, 119, 127, 129, 138–9 Nyong’o, Peter Anyang’, 124–6 OAU (Organisation of African Unity), 6–7, 31 Obasanjo, Olusegun, 95 Obote, Milton, 117, 118, 128 Odinga, Raila, 126–7 OECD, 78, 138 OHADA (Organization for the Harmonization of African Business Law), 19, 88 OIC (Organisation of Islamic Cooperation), 43, 118 oil, 11, 86–7, 139 Open Society Justice Initiative, 66 Organisation of African Unity (OAU), 6–7, 31 Organisation for Economic Co-operation and Development (OECD), 78, 138 Organisation of Islamic Cooperation (OIC), 43, 118 Organization for the Harmonization of African Business Law (OHADA), 19, 88 Ouattara, Alassane, 9, 10, 10–11, 15, 107–8, 111 Pan-Africanism, 9–11, 37, 43–4, 117, 140 Pan-Africanist Congress, 69 patriotic history, 63, 64, 65, 72 Patten, Chris, 58 Peiffer, C., 23 Permanent Court of Arbitration (PCA), 81 Philippines, 1 Piccolino, G., 12, 92 Piero Foresti v Republic of South Africa, 79 Pillay, Ariranga, 56, 61, 77 Pommerolle, M.-E., 23 postcolonialism, 4–5, 117–18 poverty, 92, 122 Preferential Trade Area for Eastern and Southern Africa (PTA), 30 presidential term limits, 92, 105–6 Protocol on Democracy and Good Governance (PDGG) (2001), 84–5, 91–2, 93, 105

INDEX

Ramaphosa, Cyril, 75 regime security, 127–9 regional courts: backlash, 3–4, 135–6; establishment, 18–21, 19; lack of African enthusiasm for, 31–2, 150n11; reasons for creation, 12, 21–2, 29–30; and withdrawal from the ICC, 51–2 regionalism: East Africa, 120–4, 130; West Africa, 87–8 resistance: definition, 13; ICJ, 136–7; legitimated by West African states, 102–13; see also non-compliance Reus-Smit, C., 143, 145–6 Rome Statute: and aggression, 145; deferral request (Article 16), 43; and international rule of law, 11; ratifications, 41; reform proposals, 52–3; Review Conference (2010), 43; state immunity (Article 27), 46 Roth, B., 145 Ruhindi, Freddie, 131 rule of law, 16, 23–9, 32 Russia, and the ECtHR, 1 Ruto, William, 43, 44–5 Rwanda: ACtHPR private access, 2, 128; and the ICC, 54; Ingabire Victoire case, 128; International Criminal Tribunal (ICTR), 17, 19, 26, 38; and Syrian conflict, 54 SADC see Southern African Development Community (SADC) SADC Tribunal see Southern African Development Community Tribunal Saidykhan, Musa, 96 SALC (Southern Africa Litigation Centre), 34–5, 66, 68 Sall, Macky, 104 Sankara, Thomas, 108–9 Scott, J.C., 99 self-determination, 136–7, 137–8, 143 self-entrapment, 5, 9–11, 74, 107–8 Senegal: Court for the Repression of Illegal Enrichment, 104–5; ECCJ cases, 103–5; election (2012), 104; Habré trial, 103–4; and ICC withdrawal, 49, 50

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Sierra Leone: ECCJ judgement on the vice president, 84, 101; ECOMOG intervention, 91; and Rome Statute, 53; Special Court (Tribunal), 17, 20 Singapore, High Court, 81 Skinner, Q., 5 slavery, ECCJ ruling (Koraou), 96, 99 Slobidian, Q., 141 soccer, 8 Söderbaum, F., 12 Somalia, 149n1 South Africa: ANC (African National Congress), 50, 60; anti-apartheid fight, 143–4; BITs proliferation, 78; BITs review, 79–80; BITs terminations, 77, 81; Black Economic Empowerment, 79, 142; Economic Freedom Fighters (EFF), 75, 140; failure to arrest al-Bashir, 48, 140; and ICC withdrawal, 34, 49, 50; land reform, 73–4, 75; and Libyan interventions, 44; Mineral and Petroleum Resources Development Act (2004), 79; and SADC Finance and Investment Protocol (FIP), 81–3; and SADC Tribunal, 60, 73–5; and Zimbabwe, 69 South-West Africa (1966), 136; see also Namibia Southern Africa Litigation Centre (SALC), 34–5, 66, 68 Southern African Development Community (SADC), 56–83; establishment, 30, 58–62; Finance and Investment Protocol (FIP) (2006), 81–3; human rights issues, 60–1; military interventions, 148n11; Model BIT (2012), 80–1; Organ on Politics, Defence and Security Cooperation, 61–2; responses to Zimbabwe’s challenge, 65, 66–7; Zimbabwe’s political influence, 69–70 Southern African Development Community Tribunal: background, 20; backlash see below; Campbell case (2008), 2, 57, 62–3, 64–5; on compensation for Zimbabwe’s white farmers, 64–5; demise, 56, 62–3, 67;

218 | I N D E X and domestic political interests, 56–7; donor funding, 70; donor pressures, 57, 62; establishment, 57, 59–62; Lake Nyasa/Malawi dispute, 150n11; opening, 62; ratification process, 61–2, 65; and rule of law, 29; Swissbourgh claim, 81 Southern African Development Community Tribunal backlash: anti-imperialism, 68, 69–70; loss of human rights jurisdiction, 2, 67; media coverage, 70; national self-interest, 76–7; private cases disallowed, 67; regime solidarity, 57, 67–9, 83; respect for sovereignty, 57, 68; South African and Namibian interests, 73–6; supported by SADC Secretariat, 72; suspension, 66–7; Zimbabwe’s success, 3–4, 65–7, 83 Southern African Development Coordination Conference (SADCC), 30, 58–9, 65–6, 68 Southern Rhodesia, land tenure, 63 sovereign equality: and the EAC, 123; Habré trial, 103–4; and the ICC, 45, 50, 53–4; and international law, 140, 143, 145–6; and political opponents, 9–10; threat from aggression, 145; UN and OAU Charters, 6–7; vs sovereignty, 57, 83 sovereign immunity, 45–7, 54 sovereignty, 3; conceded to SADC Tribunal, 57, 61; and EACJ backlash, 14, 132, 133, 134; trade and investment, 141; vs sovereign equality, 57, 83 Special Court for Sierra Leone (SCSL), 17, 20 Special Criminal Court (SCC) for the Central African Republic, 17, 20 state capacity, 13, 92, 100, 102 state immunity, 4, 45–7, 53, 137 Sudan: government officials’ referral, 45; ICC involvement, 39–40; opt-out of ICC regime, 45; relations with Chad, 36, 40; see also al-Bashir, Omar; Darfur, ICC referral Swissbourgh Diamond Mines Ltd, 81 Syria, 54

Tandja, Mamadou, 105–6, 157n37 Tanzania: and ACtHPR, 71, 128–9; border dispute with Malawi, 76, 150n11; compliance with Anyang’ Nyong’o, 131; and East African integration, 117–22; and the ICC, 39–40, 49; Kamaliza treason case (1970), 127; non-use of regional courts, 31, 150n11; and SADC, 68, 117; support for Kenya’s EACJ reforms, 129–31; trade disputes, 31, 120; Ugandan troops invasion, 118–19; and Zimbabwe, 71 Taylor, Charles, 90 territorial disputes, 76, 136, 150n11 Tieku, T.K., 4–5, 7 Touré, Aminata, 104, 105 trade disputes, 22, 31, 120 trade policy, 141–2 Trump, Donald, 80, 142 Tutu, Desmond, 56 Uganda: compliance with Anyang’ Nyong’o, 131; and East African integration, 117–22; hosting of al-Bashir, 48; and the ICC, 34, 39, 45, 50; invasion of Tanzania, 118–19; Obote’s government ministers (Ibingira) case (1966), 127–8; opposition activists’ bail (Katabazi) case, 127, 129; support for Kenya’s EACJ reforms, 129–31; trade disputes, 120 Ugokwe, Dr Jerry, 95 United Kingdom: Brexit, 1, 141, 142; Chagos Archipelago, 137–8; and Darfur, 37; in East Africa, 117; and ECHR, 1; and the ECJ, 98–9, 142; and ICC deferral option, 43; prisoners’ voting rights, 101; standards for BITs, 78 United Nations: Decade of International Law, 25; human rights treaties, 25, 26; Rule of Law Unit, 24 United Nations Charter, 6 United Nations Conference on Trade and Development (UNCTAD), Model BITs, 80 United Nations Economic Commission for Africa (UNECA), 87 United Nations General Assembly, 25, 45, 52, 137, 139

INDEX

United Nations Human Rights Council (UNHRC), 81, 138 United Nations Security Council: and AU Contact Group, 37; Darfur referral, 37, 38–9, 44; and the ICC, 8, 10, 37–8; ICC referral and deferral powers, 42–5, 53, 140; Libya referral, 44; on military interventions, 148n11; permanent members, 6, 43, 45; resolutions, 147n9 United States: EACJ and COMESA Court of Justice, 122; foreign policy, 138; and ICC, 37–8; trade negotiations, 80; unilateralism, 1 United States Agency for International Development (USAID), 82 Universal Declaration of Human Rights (UDHR), 6 universal jurisdiction, 41–2, 54 Uruguay Round, 28–9 Vasak, Karl, 31 Wade, Abdoulaye, 47, 103–5 Wade, Karim, 104–5 War on Terror, 11, 32 Weah, George, 8 West Africa: coups and illegal regimes, 91–2; humanitarian interventions, 90–2; lack of national implementing authorities, 100; Nigerian-French rivalry, 86; non-compliance with ECCJ rulings, 13, 85, 95, 98–102, 156n22; regionalism, 87–8 West African Economic and Monetary Union (WAEMU), 88, 107; Court of Justice, 19, 89

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Western Sahara, 150n12 Windhoek Treaty (1992), 59–60, 61 World Bank, 122; Euro-American bias, 6 World Trade Organization (WTO), 28, 123 World Trade Organization (WTO) Appellate Body: background, 20; global reach, 18; negotiations, 28–9; technical support, 28; and the US, 1 Yayi, Thomas Boni, 41 Yerodia Ndombasi, Abdulaye, 41 Zambia, 49, 58, 78 ZANU-PF (Zimbabwe African National Union-Patriotic Front): African critics, 71; African solidarity, 68–9; and ANC guerrillas, 69; anti-colonial (patriotic history) strategy, 63, 64, 65, 72; repression, 68 Zimbabwe: BITs, 78; Campbell ruling, 2, 57, 62–3, 64–5; Constitutional Amendment Act No.17, 64; elections (2013), 71; establishment of SADC Tribunal, 60–1; expropriation of white farmers’ property, 2, 63–5; land redistribution, 2, 63–5, 67, 73; powersharing agreement, 69; SADC successful backlash, 3–4, 65–7, 83; and SADC’s Organ on Politics, Defence and Security Cooperation, 61–2; Western sanctions, 70 Zongo, Norbert, 109, 110 Zongo v Burkina Faso, 110 Zulu, Lindiwe, 69 Zuma, Jacob, 74, 140