African solutions for African problems is an axiom that is constantly used by African politicians and the AU when conducting their anti-International Criminal Court campaigns.
The situation in Burundi provides the stage upon which the classic AU versus the ICC story could play out, because this week the prosecutor of the ICC announced that her office would be conducting a preliminary examination in Burundi.
The ICC and the AU have different mandates – one is a judicial body and the other a political body, yet the AU continues to hinder the work of the court in Africa. The ICC seeks to bring to justice those deemed most responsible for crimes that shock the conscience of humanity.
Those individuals are, more often than not, heads of state and senior government officials.
This doesn’t sit well with AU leaders, who seek to hide behind the shield of impunity. Their response to the ICC’s work is to accuse it of bias and peddling a Western agenda, hence the resurgence of “African solutions for African problems” to counter ICC intervention in Africa.
What will happen in Burundi, where these two forces are engaged?
Can they work in the same space without getting in each other’s way?
Has the AU’s handling of the situation provided a hollow, empty version of African solutions?
After emerging from a 15-year civil war that claimed roughly 300 000 lives and ended in 2005, Burundi seemed to be on the path to stability.
That was until last year, when President Pierre Nkurunziza decided to run for what many called an unconstitutional third term, plunging his nation into a political crisis.
The opposition continues to agitate for change, and the government’s response has included arbitrary detention, murder, abduction and the intimidation of citizens and opposition leaders. Unsurprisingly, the armed opposition forces also engage in the commission of heinous crimes.
According to the UN refugee agency, UNHCR, at least 252 530 Burundian refugees have been identified in neighbouring countries, mainly Rwanda and Tanzania, since the beginning of the unrest in April last year.
The UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, has stated that there has been a drastic increase in incidents of torture and ill- treatment.
The UN Independent Investigation on Burundi, led by three experts, has found that while the violence is definitely less overt, it has become dangerously covert.
Civil society space is shrinking and freedom of expression has been significantly hampered.
Al Hussein’s office has documented 500 deaths, 1 700 arbitrary arrests and detentions and 20 enforced disappearances since April last year.
What has the AU done about this situation?
In December, the AU’s Peace and Security Council condemned the violence and pledged to deploy 5 000 peacekeepers. Nkurunziza rejected this decision and indicated that such an act would be treated as an invasion and that he would respond accordingly.
The AU changed its tune at the 26th ordinary summit in January and opted to send a high-level delegation to negotiate instead, despite having the power in terms of the AU Constitutive Act to intervene without Nkurunziza’s consent.
Since that fateful decision was made, the dead bodies have continued to pile up. The AU’s high-level delegation managed only to convince Nkurunziza to allow the deployment of 100 military monitors and 100 human rights observers.
The leaders of the AU seem convinced that negotiations and dialogue will resolve the challenges facing the nation.
Enter the ICC, which has been monitoring the situation. While it’s encouraging that the prosecutor has decided to open a preliminary examination, it must be remembered that this is not an investigation, “but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute”.
The prosecutor must also adhere to the principle of complementarity, which includes engaging the Burundian authorities to assess relevant national investigations and prosecutions that may be under way or in the pipeline.
There are no prescribed time limits for preliminary investigations.
For example, the prosecutor announced a preliminary examination in Afghanistan in 2007, and for various reasons, it’s still in the preliminary examination phase today.
The impact of opening a preliminary investigation remains to be seen. However, it is hoped that it may serve as a deterrent to potential perpetrators of crimes against humanity, genocide and war crimes.
It may provide the victims with the comfort of knowing that somebody is monitoring the situation and doing more than just sending a high-level delegation to negotiate.
In the meantime, the AU should work on developing meaningful African solutions to stop the violence and bloodshed.
* Angela Mudukuti is an international criminal justice lawyer