Ghana on trial at the International Criminal Court

The Hague is one of a handful of places whose names begin with the definite article “the” which always starts with a capital “T”. Known as Den Haag in the Dutch language, the city of 500,000 people is also interesting for being the seat of the government of the Netherlands but not the capital city, which by constitution is Amsterdam. Another fact about The Hague is that it is, of course, the home of the International Criminal Court, which if the members of the Ghana Coalition for the International Criminal Court have their way will be the home of Mr. Kennedy Agyapong, MP, for the next few years.

Being laid low by an allergy last week, I was generally unaware of quite a few things, so I heard the news rather late that the MP for Assin North had been reported to the International Criminal Court. I thought at first that it was a joke, especially when I heard a wag suggest that someone else should report Mr. Lante Vanderpuje of Odododiodo fame for ethnic cleansing. But after a brief check I realized that it was true that Messrs Francis Kojo Arthur, Eric Akomanyi, and Fortune Sase of the Coalition had indeed referred Mr. Agyapong to the ICC.

The members of the Ghana Coalition of the ICC are probably sincere in their expressed belief that events in Ghana since 2009 give them cause to believe that “some politicians especially within the opposition New Patriotic Party (NPP are plotting to unleash Violence, War, Genocide and Ethnic Cleansing either prior to or in the event that they lose the December 2012 Ghanaian elections”. Their petition goes on to claim that “Since losing the 2008 elections, the rhetoric of the opposition NPP and its leadership has assumed very inflammatory and alarmingly belligerent tones. Both publicly and in secret, they have urged their followers to resort to violence in order to win the 2012 elections”.

There is no doubt that the trigger for the Coalition’s petition to the ICC is Kennedy Agyapong’s recent outburst on radio; they actually provide an English translation of the MP’s infamous statement for the benefit of the ICC, as a case in point. If this is the case, as one should believe it is, then the decision to petition the ICC is a strange one, which could lead to all kinds of speculation and interpretations. This is because Mr. Agyapong who provides the ready material for the Coalition’s worry has been arrested, arraigned before a court here in Ghana and bailed. Why was it necessary to petition the ICC?

The International Criminal Court was established by the Rome Statute as an independent tribunal to try genocide, crimes against humanity and war crimes, with the subtext being the international community’s desire to end impunity and avoid situations such as happened in the former Yugoslavia and Rwanda in the past thirty years. The ICC is serious business designed to deal with cases that domestic judicial processes, for whatever reason cannot deal with.

I think it is important that I declare my interest in this matter. In the early 1990s, I was closely associated with the NGO Coalition for the International Criminal Court, CICC, which was organised under the umbrella of the Open Society Initiative with its headquarters in New York. Mr. William R. Pace, the Convener and a team of highly motivated individuals and organisations started the coalition which they have sustained till now. Today, the CICC includes 2,500 civil society organizations in 150 different countries working in partnership to strengthen international cooperation with the ICC. Its main remit is to ensure that the Court is fair, effective and independent and to make justice both visible and universal; and advance stronger national laws that deliver justice to victims of war crimes, crimes against humanity and genocide.

I have retained my personal interest in matters of the Court even though my core business these days is no longer directly related to its activities. However, anyone who is remotely interested in the ICC, as all of us should be, must be concerned that the venerable global court is not used for purposes for which it is NOT intended or that people who should promote its interests do not make a mockery of it.

Anyone remotely associated with the ICC, especially an NGO that has standing with the Court would know that the ICC is not the right forum for either the Kennedy Agyapong case or even for the perceived possibility of violence in Ghana; this must be obvious. The ICC is a Court of last resort; what this means in this context is that it has complementary jurisdiction. It can only take up a case for investigation if the national authorities are either unwilling or unable to investigate and prosecute. So the standard is two pronged: first ICC crimes must have been committed- Genocide, War Crimes, and Crimes against Humanity, and second, the national authorities must be either unwilling or unable to prosecute. The cases that have gone to the ICC and for which some people have been indicted involve countries and crisis-infected circumstances in which the luxury of normal judicial processes is simply not an option. This is not the case in Ghana.

My worry is this: by taking a Ghanaian case to the ICC at this time, irrespective of who is involved, is to signal to the world that our government led by President John Mills is incapable of handling the situation. The logic of international law is that the STATE has the responsibility to protect its citizens, therefore this implied indictment of President Mills and his government is both wrong and unfair. President Mills has on numerous occasions issued warnings about the effect of violent talk on the political climate in the country, and given the assurance that he is equal to the task of ensuring security for all under any and all circumstances. The Inspector General of Police has given muscular assurances to the same effect, and as we know, even from the Kennedy Agyapong saga, the police and courts are capable of dealing with the situation. So why is the Coalition dragging the reputation of the government in the mud?

That is not all. Consider the kinds of countries and situation that have landed people at the ICC. In Sudan we have Darfur; in DR Congo we have Goma in the East where a violent insurgency has been going since the eruptions in the Great Lakes Region some twenty years ago, in northern Uganda the Lord’s Resistance Army held sway for years kidnapping children and killing civilians; Ivory Coast and Kenya there have been post-election civil wars in which thousands of people have died. With the greatest respect to these countries, one has to ask whether Ghana is in the kind of crisis that has led to indictment of some people in the countries I have cited above?

The Coalition may say that we don’t have to wait for a civil war before we ask the ICC to intervene, and that is a fair point. However it is invalid insofar as the country’s legal and legitimate authority is able to deal with any matters that can be foreseen to arise at the moment. I repeat that it is not right to put the President to such unmerited ridicule.

My final worry is this: when you place your country at par in terms of security with Eastern Congo and northern Uganda you simply drive out investment, denigrate your economy and drive down the value of your currency. Is it any wonder that the value of the cedi is falling so fast against all other currencies? No, it is not surprising because the Ghana Coalition for the ICC and all those who are trumpeting the likelihood of election violence are telling the world that this is not a safe place to invest.

I do not necessarily subscribe to the view that the members of the Ghana Coalition for the ICC are working on behalf of any political party, however I am worried that this group could not be doing the ICC any favours here in Ghana. I suggest that they join hands with all those who want peace to avoid creating fear and panic, and not to undermine the authority of our legitimate institutions. As things stand, all leaders of political parties have sworn to ensure that violence will be averted. We need to remember that the cedi is already dancing azonto at the bar of international public and business opinion, including potentially in front of judges at the ICC – if the Coalition would have its way. Whether it will stand or fall depends on us.

There is a lovely proverb that says that we should not be deluded into thinking that we are enjoying the taste of meat when in fact it is our own tongues we are eating.

gapenteng@hotmail.com

kgapenteng.blogspot.com

A slightly edited version of this article appeared in the Diary column in the Mirror.