Triple-E Post

Syria: Arab League unqualified umpire

2012-01-20T05:03:00.005Z

My beef about the idiocy of the so called Arab league is their inability to assess themselves. The Arab league should take the wool of their own eyes before the threat of suspension, sanctions against the State of Syria. It is hypocritical of the Arab League to purport to serve the interest of the Syrian people when every vein in the free minded, truth speaking and true God fearing people of the free world know for certain that Arab League is simply a disguise of an indirect agenda of the west to pressuring the Bashar Al-Assad lead Syrian government to dance to the economic and policy interest of the said western government. Policies that are morally flawed and economical disadvantageous to the African nations, especially!

Arab League constituting of Gulf States that are alien to the true meaning of democratic processes in their own states. They have no constitution, freedom of speech, freedom of assembly; routinely disregard human rights as seen in Bahrain in 2011 and still on-going!

It is clear for a conscientious audience to see that in the instance, the Arab League is nothing but a puppet of western powers. The Arab league is therefore devoid, not in a position to lecture another of her undemocratic, totalitarian neighbour – Syria, how to behave. There is a maxim which states, charity begins at home! Arab league lacks the barest tenets of democracy.

The west is known for her blatant disregards for International law as seen in Iraq, Libya, rendition of suspects, extrajudicial killings etc. So, I would have been less dismayed if the west under the camouflage of spurious UN resolution(s) to attack Syria, instead of covertly using other totalitarian as the Arab league to bring about democratic process in Syria. Of course there would be an outcry of crusaders and legal minds of international law against such obvious direct attack against Syria. But, let’s face it, it never stopped the west in the past, as shown above with few instances, and I do not honestly believe it would therefore make any difference now!

2010-08-19T19:45:00.000+01:00

It is ridiculous to suggest, as did your news contributor on Sky news in the morning of 27th December 2009, that international students admissions into UK universities are processed in just seven seconds. That time of seven seconds, by any reasonable thinking is absolutely ridiculous. The authorities responsible for international admission process irrespective of defragmentation are not as sloppy as to fail in their duty of ensuring the suitability of applicants before admission is granted. I would like to believe that your said news contributor failed to cross check her information before her comment concerning the time.Nonetheless, let the critical issue of the subject matter not be derailed by the admission process which rightly check mated this individual, found him not credible in his application thus rightly declined him, but examine how he almost succeeded in slaughtering innocent lives on board North West Airliner.Who is Umar Farouk Abdul Mutallab? He is a 23 years old Nigerian from an affluent background, privately educated. He is from a good and well grounded family from the district of Funtua, Katsina State in Nigeria. His father, Alhaji Umaru Mutallab, a prominent banker, was the chairman of one of the foremost banks in Nigeria – First Bank, now retired. He had his secondary education at British school of Lome in Togo, West Africa, a very prestigious school for the children of some of the worlds rich, especially African’s rich and powerful people and then proceeded to do a three years course at the University of London – 2005-2008, where he read mechanical engineering. Until recently, he was studying for MBA in business in Dubai but dropped out, severed relationship with his family. He was in Egypt for some time, visited Yemen twice for short Islamic course, there he converted to al-Qaeda and was equipped to replicate the British shoe bomber Richard Reid, who equally failed in his suicide attempt to blow up Boeing 767 in 2002 . He was an intelligent young man until he became a terrorist and committed the act of attempted homicide of 289 people by arson and that of destroying property (airplane), including further damages that could have possibly followed, since the plane was about landing. As a person of Nigerian origin, it is beyond belief that such thought, being a terrorist, would even develop in our sub consciousness let alone attempt it. My first reaction was... he is not a Nigerian! Nigerians loves life too much to want to die especially by such cowardly and barbaric act of blowing oneself or an airliner up. One thing is certain, I believe, he is definitely not alone in the venture. All his associate from his early days in London and thereafter should be closely examined, only to the extent of fishing out those suspected of having indoctrinated him.How did he almost succeed in carrying out the act of killing 289 people? That is the question that begs answering? Let’s take it that the Nigerian security lacks such sophisticated security detection equipments, but surely the substance he carried between his legs or any part thereof, should have been detected in Amsterdam. Or could it be that he was assisted unknowingly in Nigeria? I used the word ‘unknowingly’ because no one there would have assisted anyone on such mission knowingly. Instead you will be arrested and God only would anchor your release. No human right law, however well it is advanced the argument, would save you, as the authorities will ignore all those enshrined rights you are entitled to, in an attempt to redeem a possible shattered national image. Or was he assisted in Amsterdam? Otherwise, how could he have evaded the security screening or detection systems there?Outside of the failures by airport security to detect the explosive substance the culprit carried through the aforementioned airports, the intelligence community equally failed in their responsibilities to us, in that, they were fore warned of the extremist views of this individual, additionally that he was talking with extremist and had visited these extremist in Yemen.Why was his father plea for help ignored, when he expressed concern and alerted the intelligence community about his son’s extremist tendencies?It is clear from the accounts of what we know now, that the intelligence community failed in discharging their duties of safe guarding us all. Had they taken the intelligence they had more seriously and circulated that information within the global intelligence community, my guess is that, Umar Farouk Abdulmutaliab would have been arrested in Nigeria the moment he set foot on Nigerian soil before embarking on the KLM flight which took him from Nigeria to Amsterdam, where he subsequently boarded the flight to the United State of America. Neither would he have been able to step on any other Trans Atlantics airline with the aim of carrying out a potential terrorist act, of almost blowing up North West airline 253 with 289 people on board. CIA and Nigerian NSA and other intelligence agencies that failed to activate adequate measures should take responsibility for the lapses that almost resulted in the destruction of lives and properties had Umar Farouk Abdul Mutaliab attempt to commit multiple first degree murder by an act of terrorism not failed.-By Elias Edetanlen-Elliot

Zoning headache: PDP applies middle ground mechanism

2010-08-19T18:47:00.003+01:00

Every agitated parties within the power base of the People Democratic Party wins, seems to be the posture adopted by the nation executive council (NEC) of the party. In other not to alienate perhaps, the power base of the party, the PDP NEC adopted everybody wins syndrome, giving in to the pro zoning supporters and those that wants zoning eliminated.

It came as no surprise that NEC had its hands tied behind its back in the matter but by adopting everybody win mechanism. The interest of those for, supporters of IBB, Atiku and others within the Northern caucus and those against, supporters of President Goodluck Jonathan has to be satisfied.

However, by adopting that consensus, is NEC not compromising the future generation of PDP as a result of that adopted posture in the interest of today agitators, a compromise of political ambiguity, political marriage of convenience, and a political game of no losers? It is clear that the current issue of zoning arose due to late President Yar’dua’s death. However, this question bugs the mind, does zoning as being promoted by the “for” campaigners represent core democratic process in its entire corollary?

The idea of zoning seems to atypical to the wider political players and observers of the 21st century. Indeed, it may have been necessary in the days of analogue reasoning, to bring then wisdom to bear for the sake Nigeria’s stability. But to use that same wisdom of the sixties or even before, in today’s fast changing and moving world would be to remain still and that is not possible. Thus, I humbly disagree with a father, Dr. Samuel Ogbemudia that some of the wisdom in the days he carried me in his hands as the military governor of then Midwestern State during the commissioning borehole in Ekpoma is out of place in today’s Nigeria phenomenon. Equally, where PDP have adopted and practised the zoning formula should not be abolished for the benefit of the current “against zoning” agitators as it will be unfair to those who have waited in the wings for their turn under current dispensation. That is not to say, am in support!

It was, I believe, with that in mind that the PDP NEC decided to adopt everyone win formula. I acquiesce that, it is a policy that cannot withstand the deluge of time. It is therefore imperative that whilst it is convenient now, to retain zoning, in other to appease the warring parties in the divergent point of zoning divide for 2011, it is not safe for the party in subsequent elections.

The understanding is that President Goodluck Jonathan is entitled to contest amongst others to be the PDP flag bearer in 2011. By reason of his joint tickets with late President Umaru Yar’Adua still subsist. In effect, should President Goodluck Jonathan decide not to contest, PDP candidate for the 2011 presidential election would undoubtedly be from the North irrespective of whether the best person for the job is from another part of Nigeria. To me that sucks!

It is simply on that basis that I advocate the abolition of zoning. At 50, Nigeria should no longer settle for less but the best amongst meritocratic personalities, notwithstanding ethnicity – as long as the individual is a bona fide Nigerian.

UK Election

2010-05-03T02:17:00.006+01:00

When the three front political party runners for the office of prime minister has nothing to offer,dogging and docking the main issue - "economy" who do you vote for? Do you just vote for the sake of performing your civic responsibility?

Labour, Gordon Brown is out of steam on fixing the economy, except to continue on engineering all sort of taxation formulas. Conservative, David Cameron does not have the foggest idea of what is talking about most of the time, thus has no incline on how to fix the massive hole in the economy. Liberal Democrat, Nick Clegg is enveloped in amnesty, thinks fixing the economy is hedge fund.

The T.V debate was a farce, yes it was! Why were real audience with real questions about the real issues as it affects daily lives not there? How will you stimulate the economy, stimulate growth? It is the economy not soap opera stupid! Give us a serious breakdown on how you will fill the massive economic hole before the nation.

The current romance with the Liberal Democrat by some voters is born out of the facts that most voters are dissilutioned with the political occupant of 10 Downing Street - Gordon Brown, his Labour party and equally with Cameroun and his Conservative party. These voters are simply tired of those two parties, like Liberal Democrate, they have nothing real sustaintial to offer the people, nontheless, these voters are going to vote Liberal Democrate, just because they want a change from Labour and Conservative. Irrespective of my reservations amongst the three men routing for the office of PM, l believe Gordon Brown is the only credible candidate that has some clue on getting the nation out of the financial mess, certainly not David Cameroun!

Buffett Gets It All Wrong On Banks... Did he?

2010-01-23T00:26:00.004Z

Why are we having painkillers for a financial system that was designed by those who it benefits (the incompetent government and bankers). I concur with Mr W Buffet, in that there ought not to be government intervention in the name of bailout of most of these banks, like RBS. How dare these banks in receipt of taxpayers’ money for survivor even contemplate bonuses while still deep in the RED?

If the banking brains where as brilliant as claimed by their employers such as RBS, BOS who the hell did fail to recognise that the instruments they were trading in or product designed were flawed? Save us the bullshit, the justification of talent drain is a complete and absolute nonsense. Some of these bank employees get high reward without the corresponding level of risk, yet the government is toothless to take a meaningful bit at the bank, to be seen acting, instead of fiercely and actually acting. One does not need a crystal ball to know that government primary interest to intervene was to save themselves the enormous social and political unrest that may have potentially arouse were the banks allowed to fail.

Most of us lost millions of pounds/dollars as a result of extreme challenges borne out failures from the misguided and incompetent bankers. After receipt of bailout money, they had the nerve to award themselves bonuses. They are being rewarded for incompetence and the labour government (not that conservative would have done any better) are toothless to use its power as custodian of taxpayers’ money to freeze even an ounce of bonus until the monies advanced to cushion the banks are completely paid back with interest to the treasury.
Trust me when I say, there are the likes of Warren Buffet and solvent banks out there, like panthers, waiting to pounce on failed banks, acquire them on the cheap (still works out cheaper than government bailout) and will staff the bank with less paid talented individuals that would deliver better performance and returns for their investments. I do not have to be a banker, to know that that some executives are only interested in their selfish interest on the pretext of talented brain drain, what brain drain? Get out of town, complete and utter nonsense!

THANK YOU PRESIDENT OBAMA - NOW REMOVE NIGERIA FROM THE TERROR WATCH LIST.

2010-01-06T13:01:00.005Z

President of United States, Barack Obama officially acknowledged the failings of his intelligence machinery when he said this, “The bottom line is this - the US Government had sufficient information to have uncovered this plot and potentially disrupt the Christmas Day attack, but our intelligence community failed to connect those dots.”

This was indeed not a failure by the American intelligence machinery not to collect intelligence, but a failure to comprehend the intelligence reports at their disposal. That failure, as mentioned in my previous article in my blog, potentially would have caused several losses of lives. Not to mention the lives of families and friends that would have been devastated by the loss of dear loved ones. Yes, President Obama, you were damn right, not to mess words, "a screw up that could have been disastrous", the failure is definitely “not acceptable”.

Mr. President, we indeed narrowly dogged a bullet, not by failure of the Nigerian intelligence community, but by your well financed and equipped intelligence agencies, who failed to integrate and fully comprehend the intelligence before them. Umar Farouk Abdul Mutallab would not have been able to transit in Nigeria without being arrested had your intelligence agencies, namely the CIA shared what they knew with their Nigerian counterpart. To now label Nigeria as a country of interest on US terrorist watch list, thereby criminalising and subjecting a 150 million peace loving Nigerians to degrading search, due to a singular act of an individual, Umar Farouk Abdul Mutallab who from his teenage years have been a product of foreign influence – obtained his education abroad, influenced and indoctrinated abroad, from UK, UAE, Egypt and then Yemen, is unfair, unjust and against natural or equitable justice. Outside of what we knew, you held your hand up, your head upright, looked at me and millions of other people in the world and admitted the failings of your intelligence community. In view of that fact, it is my submission that it will be honourable of you to now remove Nigeria from your terrorist watch list. Over forty nine years of Nigerian’s history, there has never been an act of terrorism against the outside world, except for this once by Umar Farouk Abdul Mutallab and if not, but for, the failures of your intelligence community, the said individual would have been on a ‘no-fly’ list and Nigeria would have continued to maintain her good name in the international community.

NIGERIA IS NOT A TERRORIST COUNTRY

2010-01-05T21:32:00.004Z

On what rational basis can America justify the inclusion of Nigeria on America terrorist watch list? The argument that a 23 years old Nigerian, Umar Farouk Abdulmutallab attempted to detonate a device on an airline on 2009 Christmas day is insufficient in the circumstance. Why? The culprit’s father, Alhaji Mutallab, a formal chairman of one of Nigeria’s foremost and largest banks, informed the American embassy in Nigeria of his son, Umar Farouk Abdulmutallab, extremist tendencies, coupled with intelligence already at the tables of American intelligence operatives. What did CIA do? They sat on it, did nothing, failed to share the intelligence reports with her counterparts and at the time with Nigerian security operatives. 289 people, inclusive of properties, potentially would have lost their lives because of that negligence. As a result of those failings, Umar Farouk Abdulmutallab transited in Nigeria where he boarded a KLM flight to Amsterdam and onwards to America to commit the heinous crime of terrorism. Thank God he failed to succeed!

Nigerians are not terrorist, and certainly do not deserve to be subjected to a degrading search in the name of counter terrorism measures, because such or any terrorist act is absolutely alien to Nigerians. Send Umar Farouk Abdulmutallab to Nigeria today and see what Nigerians would make of him! He will be lynched to death especially by the youths of Nigeria who believe, and rightly so, that by his act, he has brought shame to the nation, Nigeria.

American intelligence operatives - the CIA, failed the American people, equally failed Nigerians and us as a people. Had they acted on intelligence before them, instead of seating on it, Umar Farouk Abdulmutallab would have been arrested in Nigeria. Thus, he would not have had the opportunity to almost kill 289 people. It is therefore, unfair, unjust for America to now label Nigeria as a terrorist country, or a transit spot for terrorist. However, it is labelled; it is still a bad name. Nigeria should be removed from that list, Nigerians are good people not terrorist, CIA failed Nigeria and should take the rap for it, not innocent Nigerians.

Who is Umar Farouk Abdul Mutallab?

2009-12-31T21:58:00.006Z

It is ridiculous to suggest, as did your news contributor on Sky news on the morning of 27th December 2009, that international students admissions into UK universities are processed in just seven seconds. That time of seven seconds, by any reasonable thinking is absolutely ridiculous. The authorities responsible for international admission process irrespective of defragmentation are not as sloppy as to fail in their duty of ensuring the suitability of applicants before admission is granted. I would like to believe that your said news contributor failed to cross check her information before her comment concerning the time.
Nonetheless, let the critical issue of the subject matter not be derailed by the admission process which rightly check mated this individual, found him not credible in his application thus rightly declined him, but examine how he almost succeeded in slaughtering innocent lives on board North West Airliner.

Who is Umar Farouk Abdul Mutallab? He is a 23 years old Nigerian from an affluent background, privately educated. He is from a good and well grounded family from the district of Funtua, Katsina State in Nigeria. His father, Alhaji Umaru Mutallab, a prominent banker, was the chairman of one of the foremost banks in Nigeria – First Bank, now retired. He had his secondary education at British school of Lome in Togo, West Africa, a very prestigious school for the children of some of the worlds rich, especially African’s rich and powerful people and then proceeded to do a three years course at the University of London – 2005-2008, where he read mechanical engineering. Until recently, he was studying for MBA in business in Dubai but dropped out, severed relationship with his family. He was in Egypt for some time, visited Yemen twice for short Islamic course, there he converted to al-Qaeda and was equipped to replicate the British shoe bomber Richard Reid, who equally failed in his suicide attempt to blow up Boeing 767 in 2002 . He was an intelligent young man until he became a terrorist and committed the act of attempted homicide of 289 people by arson and that of destroying property (airplane), including further damages that could have possibly followed, since the plane was about landing. As a person of Nigerian origin, it is beyond belief that such thought, being a terrorist, would even develop in our sub consciousness let alone attempt it. My first reaction was... he is not a Nigerian! Nigerians loves life too much to want to die especially by such cowardly and barbaric act of blowing oneself or an airliner up. One thing is certain, I believe, he is definitely not alone in the venture. All his associate from his early days in London and thereafter should be closely examined, only to the extent of fishing out those suspected of having indoctrinated him.

How did he almost succeed in carrying out the terrorist act of killing 289 people? That is the question that begs answering? Let’s take it that the Nigerian security lacks such sophisticated security detection equipments, but surely the substance he carried between his legs or any part thereof, should have been detected in Amsterdam. Or could it be that he was assisted unknowingly in Nigeria? I used the word ‘unknowingly’ because no one there would have assisted anyone on such mission knowingly. Instead you will be arrested and God only would anchor your release. No human right law, however well it is advanced the argument, would save you, as the authorities will ignore all those enshrined rights you are entitled to, in an attempt to redeem a possible shattered national image.

Or was he assisted in Amsterdam? In the instance, that seems to be the most likely clue! Otherwise, how could he have evaded the security screening or detection systems there?
Outside of the failures by airport security to detect the explosive substance the culprit carried through the aforementioned airports, the intelligence community equally failed in their responsibilities to us, in that, they were fore warned of the extremist views of this individual, additionally that he was talking with extremist and had visited these extremist in Yemen.
Why was his father plea for help ignored, when he expressed concern and alerted the intelligence community about his son’s extremist tendencies?

It is clear from the accounts of what we know, that the intelligence community (CIA especially) failed in discharging their duties of safe guarding us all. Had they taken the intelligence they had more seriously (taking into account the culprit father's information to the CIA in Nigeria) and circulated that information within the global intelligence community, my guess is that, Umar Farouk Abdulmutaliab would have been arrested in Nigeria the moment he set foot on Nigerian soil, before he embarked on the KLM flight which took him from Nigeria to Amsterdam, where he subsequently boarded the flight to the United State of America. Neither would he have been able to step on any other Trans Atlantics airline with the aim of carrying out a potential terrorist act, of almost blowing up North West airline 253 with 289 people on board.

CIA and Nigerian NSA and other intelligence agencies that failed to activate adequate measures should take responsibility for the lapses that almost resulted in the destruction of lives and properties had Umar Farouk Abdul Mutaliab attempt to commit multiple first degree murder by an act of terrorism not failed.

-By Elias Edetanlen-Elliot

The Arrest and Trial of Ahmed Haroun and Ali Mohammad Ali by the ICC

2009-07-26T23:15:00.008+01:00

Introduction
The international Criminal Court (ICC) in May 2007, issued arrest warrants against a Sudanese minister and a militia minister suspected of war crimes and crimes against humanity in the Darfur region.

The charge against the Sudanese minister
According to the ICC, Ahmed Haroun, a formal deputy interior minister in charge of Darfur in 2003 and 2004, was responsible for recruiting, funding and arming Janjaweed militia. Ahmed Haroun was made the humanitarian affairs minister who over sees Darfur’s two million refugees. He is accused by aid agencies of hindering their efforts to access the displaced.

The charge against the Janjaweed militia leader
According to the ICC, Ali Mohammad Ali (also called Ali Kosheid) was the leader in 2003, who allegedly promoted and witness rape and torture as part of the war strategy.

Evidence
According to a 58 page Court decision, there were reasonable grounds to believe that Haroun and Kosheib were responsible for persecuting, raping, attacking and killing civilians from villages in Darfur. ICC prosecutor Luis Moreho-Ocampo claims “we completed an investigation under very difficult circumstances, from outside Darfur, and without exposing any of our witnesses. We transformed their stories into evidence, and now the judges have confirmed the strength of that evidence,” (source: AFP news agency reports).

Legal basis of the arrest warrants
The ICC’s decision to issue arrest warrants for the arrest and trial of Ahmed Haroun and Ali Kosheib is based on the Rome statute of the International Criminal Court. The ICC has jurisdiction under Article 5 of the Statute, with respect to (a) the crime of genocide; (b) crimes against humanity; (c) war crimes; (d) the crime of aggression. The two men were both charged with war crimes and crimes against humanity under Article 7 of the Statute. ‘Crimes against humanity’ means any act when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack. Crime that falls under Article 7 includes, murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment, or other severe deprivation of physical liability in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, etc.
According to Article 8 of the Statute, the ICC shall also have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or a part of a large-scale commission of such crimes. War crimes under this Article mean grave breaches of the Geneva Convention of 12 August 1949. These include wilful killing; torture or inhumane treatment; wilfully causing great suffering, or serious injuries to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; unlawful deportation or transfer or unlawful confinement and taking of hostages.
Legal issues to be determined
The legal issues to be determined by the Court, therefore, is whether the two suspects alleged conducts constituted ‘war crimes and crimes against humanity’ within the meaning of Article 7 and 8 of the Rome Statute.

As mentioned above, Ahmed Haroun was allegedly responsible for organising and funding the militia, known as the Janjaweed. He is also alleged to have hindered aid agencies efforts to reach the displaced innocent people.
On his part, Ali Kosheib Ali, is also alleged to have promoted and witnessed rape and torture as part of the war strategy. Clearly, these crimes constitute “war crimes” and “crimes against humanity” defined under Articles 7 and 8 respectively. However, the onus is on the ICC prosecutor to prove with the evidence available to him that the two suspects, Ahmed Haroun and Ali Kosheib Ali, actually committed the alleged crimes.
It must be noted that under Article 7 of the Rome statute, the suspect must have knowledge of the attack. It appears that this may not be difficult to prove, given the manner in which the Sudanese government have conducted themselves so far.

The Jurisdiction of the Court
The jurisdiction of the Court is a serious question, thus, in the instance, is whether the ICC has the power to trial the two suspects. There are preconditions to the exercise of the Court’s jurisdiction. Article 12 of the Statute stipulates that a state which becomes a party to this Statute, hereby accepts the jurisdiction of the Court with respect to the crimes referred to in Article 5.

Sudan is not a state party to the Statute, nor has Sudan accepted the Jurisdiction of the Court. Obviously, the ICC relies on Article 13 of the Statute with regards to the arrest and trial of the two suspects. Article 13 provides that the Court may exercise its jurisdiction with respect to a crime referred to in Article 5, in accordance with the provision of the statute, if;
A situation in which one or more of such crimes appears to have been committed is referred to the prosecutor by a State party in accordance with Article 14;
A situation in which one or more of such crimes appears to have been committed is referred to the prosecutor by the Security Council acting under chapter V11 of the chapter of the United Nations; or
The prosecutor has initiated an investigation in respect of such a crime in accordance with Article 15.

Thus, with regards to the arrest and trial of the two suspects, the ICC will exercise its jurisdiction in accordance with Article 13B. In March 2005, the UN Security Council referred the situation in Darfur to the ICC’s prosecutor. The Security Council resolution 1593 requires Sudan to cooperate fully with ICC investigations.

The direction of the international Justice program at Human Right Watch, Richard Dicker, “the Council needs to monitor Sudan’s conduct and insist that it hands over the suspects as required.” Thus, the Sudanese authorities are required not only to execute arrest warrants, but also to respond positively to request from the ICC prosecutor.

Sudanese authorities response
Apparently relying on the fact that Sudan is not a party state to the ICC statute, the Sudanese authorities have failed to cooperate with the ICC. Whereas, the ICC believes it has jurisdiction to try the suspects. The Sudanese authorities contend that the ICC has no jurisdiction to try Sudanese, furthermore, that its own Courts are adequately capable of prosecuting suspects. Sudan, therefore, is saying that it will not allow anybody, including rebels, to be tried outside of Sudan.

According to Article 17 of the Rome Statute, the ICC shall determine that a case is inadmissible where;
The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to genuinely carry out the investigation or prosecution. Article 20(3) of the Statute also provides that, “no person who has been tried by another Court for conduct also proscribed under Article 6, 7 or 8 shall be tried by the ICC with respect to the same conduct unless the proceedings in the Court;
Were for the purpose of shielding the person concern for criminal responsibility for crimes within the jurisdiction of the Court; or
Otherwise were not conducted independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

The ICC has determined that the cases against the two suspects are admissible and the decision is clearly based on the obvious fact that Sudan is uncooperative and unwilling to genuinely carry out the investigation or prosecution of the two men. One of the two Suspects, Ali Kosheib, is said to already be in the custody of the Sudanese government for attacks committed in Darfur. He is said to have been in detention since November 2006, but it is believed that he has in fact been travelling Darfur under police protection (source: Association Press news report).

The two suspects have not been tried by any other Court for the crimes proscribed under Article 6, 7, or 8 and there is no indication that any other Court is prepared to do so. Under Article 19 of the Statute, a state which has jurisdiction over a case, on the grounds that it is investigating or prosecuting the case or has investigated or prosecuted may make challenges to the admissibility of a case. An accused or a person for whom a warrant of arrest or a summon(s) to appear has been issued may also make such challenges. On the basis of this, it could be argued, or concluded that the ICC should leave the case for Sudan to investigate or prosecute since Sudan has insisted that it is capable of trying alleged war criminals without any help from ICC. However, considering the evidence on the ground and the ongoing phenomenon in Darfur, one finds it extremely difficult to believe that, Sudan will indeed rain-in on the alleged war criminals and thus, properly investigate and prosecute. Humanitarian agencies have severally complained that they suffer frequent harassment from the Sudanese authorities (source: BBC news report).

It is important to mention that the ICC shall not rely on the Rome Statute only in other to try war crime suspects. According to Article 21 of the Statute, apart from the Statute, the ICC shall apply elements of crimes and its Rules of Procedure and Evidence; and where appropriate, applicable treaties and the principles of the international law, including the established principles of the international law of armed conflict. Article 21 further provides that the ICC shall apply general principles of law derived by the ICC from national laws general systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with the Rome statute and with international law and internationally recognised norms and standards. In addition, the ICC may apply principles and rules of law as interpreted in its previous decisions.

In conclusion, there is no question that the crimes allegedly committed by Ahmed Haroun and Ali Kosheib constitute war crimes and crimes against humanity. Once the prosecutor establishes strong evidence to support the charges brought against the two suspects, it will be difficult for the suspects to escape conviction for the crimes in question. It must be pointed out, however, that getting the suspects arrested and bringing them before a Court of law to stand trial is another matter.
Since the case was referred to the ICC prosecutor by the UN Security Council, the ICC has acquires jurisdiction over the case. Sudanese Courts also have jurisdiction over the case but the manner in which the Sudanese authorities have conducted themselves so far, leads to the conclusion that they are unwilling to genuinely investigate or prosecute the case. Thus, the ICC is the appropriate Court to try the suspects. However, like national criminal Courts, trial by the ICC is likely to be characterised by delay.

EVALUATION OF WAR ON TERROR: INTERNATIONAL LAW PERSPECTIVE

2009-07-24T21:45:00.001+01:00

Introduction
It is no exaggeration to say that the people behind the so called ‘war on terror’ are relentless in their effort just as those who engage in terrorist activities are unrepentant. Apparently, this forms the basis of the general view that the conflict between the two sides will never come to an end. There is no gainsaying that this global issue has reached such a height it cannot be treated with indifference. In other words, the issue has succeeded in attracting consuming concerns across the length and breadth of the contemporary world. There is hardly anyone who would dispute the fact that terrorism serves as an obstacles to global peace. On the face of it, there is therefore nothing wrong in adopting measures to combat terrorism. However, where those who assume the responsibility to fight against terrorism fail to come with ‘clean hands’ or embark upon the fight in a manner that is worthy of condemnation, there is the likelihood that their effort will yield no fruit as their conduct might cause more extremists to resort to terrorism. This paper focuses on how those who purport to pursue justice have become the major violator of international criminal and human rights laws.

The Cause of the War on Terror
Experience has taught us that the best way to quell a problem is to trace the root of the problem. This means we should try to find out not only why people engage in suicide bombing or terrorist activities but also what people have done or continue to do which has caused them to be the punished through suicide bombing. The term ‘terrorism’ itself is controversial and subjective, and thus has multiple definitions. For the purpose of this paper, terrorism refers to ‘the use or threatened use of violence for the purpose of creating fear in order to achieve a political, economic, religious or ideological goal’.[1] There are a number of terrorist groups in the world but since the September 11 attacks on the United States, the so-called ‘war on terror’ has had the group called ‘Al Qaeda’ as its main target. It is therefore necessary to take a look at how the group operates.

Al-Qaeda is a group of Muslim fundamentalists, or what the Western world commonly referred to as ‘Islamic extremists’. It was founded by Osama bin Laden, a former Saudi Arabian citizen who inherited a vast fortune from his father. [2] The group is comprised of 3000 – 5000 Wahhabi Muslims.[3] Al-Qaeda, (an Arabic word which means the base) has Osama Bin Laden as its leader (the Emir-General) and it is integrated with 24 constituent groups. It is generally believed that the group owes its extensive support and operational infrastructure to its broad ideological disposition, and that Bin Laden’s ideology appeals to both Middle Eastern and non-Middle Eastern groups that are Islamic in character.
Al-Qaeda was established to support these types of groups. First, it was established to support groups fighting regimes led by Muslim rulers, which they believed, are compromising Islamic ideals and interests as in Egypt, Algeria and Saudi Arabia. Second, it was set up to support groups that are fighting regimes perceived as oppressing and repressing their Muslim populace as in Kosovo, India and Indonesia. Third, it was intended to support groups fighting regimes to establish their own Islamic state as in Palestine and Chechnya. Seeing the US as a threat to Islam, Al-Qaeda directed its efforts and resources to fight the US. The group sees US as a threat to Islam firstly because of US military presence in Saudi Arabia. The second threat, from Al-Qaeda’s point of view, is the ‘hypocritical’ US foreign policy that has attempted to colonise the Middle East to protect oil interest. The third reason is the US political, economic and military support for Israeli attacks on innocent Muslims in Palestine, as well as US-led sanctions against Iraqi civilians after the Gulf War. In fact, this is an issue which continues to create anger not only in members of Al-Qaeda but also in many Muslims all over the world.

As far as Al-Qaeda is concerned, the conflict between them and US began in 1989, when the Saudi government granted US military permission to construct bases from which to attack Iraq. The decision was denounced by Bin Laden and all Wahhabi clerics. They saw the Western military forces as infidels on holy land.[4] A letter was therefore written by bin Laden in 1996 in which he declared War against US for occupying the land of two holy places”. In 1998, bin Laden wrote another letter in which he called for ‘Jihad’ against Jews and ‘Crusaders’. He stated that “for seven years the United States has been occupying the land of Islam in the holiest of places, the Arabian Peninsula.”[5] Bin Laden and his Al-Qaeda members found it unacceptable to allow US to occupy any part of Saudi Arabia let alone use that position to attack another Muslim country. The leader voiced his anger at US foreign policy in the following words:
“The American imposes himself on everyone … By testimony of relief workers in Iraq, the American-led sanctions resulted in the death of more that one million Iraqi children. All of this is done in the name of American interest … We believe that the biggest thieves in the world and the terrorists are the American.”[6]

Al Qaeda’s anger at US culminated in the attack on US on September 11, 2001. The purpose of this paper is not to determine whether such an attack was justified. All over the world, the attack was condemned in no uncertain terms by peace-loving and right-thinking people. As stated above, this paper is primarily concerned about the use of religion to justify the attack. Al Qaeda regards their terrorist activities as ‘jihad’. Jihad is an Arabic term which means to strive hard, or to fight to defend one’s life, property, freedom and religion. It also refers to an attempt to free people from oppression and tyranny. It is a doctrine contained in the Qur’an, the Muslim holy book. Legitimacy of jihad in the meaning of ‘fighting’ appears in the context of defending the community and bringing the breakdown of the public order to a halt so that “there is no persecution and religion is only for God.”[7] The question then arises as to whether Al-Qaeda, by their activities, is giving the correct interpretation to the doctrine of jihad or is simply abusing it. An answer to this question is important, given the consequences of terrorist activities.
It is clear from the interpretation of jihad, as given above, that jihad is essentially for self defence. Sachedina asserts:
“This was a prescriptive measure to arrest the harm caused to people at large and to redress the wrongs suffered by the weak at the hands of those who perpetrate immoralities in order to defeat the divine purposes on earth. The use of force, as far as the Qur’an is concerned, is defensive and limited to the violation of interpersonal human conduct.”[8]

If jihad is limited to violation of interpersonal conduct, then how can Al-Qaeda rely on jihad to fight external aggression or domination? Also, if jihad is essentially for self defence, then why should it be used to attack? That the issue is a complex one cannot be disputed, and the Al-Qaeda might also argue that their activities are in response to US behaviour which the group perceive to be offensive. Besides, jihad can be interpreted to provide justification for offensive attack. The Qur’an leaves the possibility of offensive jihad when it requires the Prophet of Islam to strive to create an ideal public order.[9] Thus, the problem lies in the interpretation of the passages of the Qur’an that speaks about jihad. Given the fact that terrorist activities, such as suicide bombing, take away the lives of innocent people, one may conclude that Al-Qaeda is abusing the doctrine of jihad. Another strong argument that can be raised against Al-Qaeda is that the doctrine of jihad permits defensive war against those who attack, but terrorist activities hardly affect the personal lives of people in power who are perceived to be the attackers. For example, the September 11 attack on America could not cost the live of any of the people in power; those who lost their lives were mostly civilians.

Apart from the fact that terrorism brings about the death of innocent people, it can create a bad image about the religion of the terrorists. Many are those who see Islam as a violent religion and this has largely been caused by the conduct of Islamic fundamentalists. This sufficiently explains why politicisation of religion to justify war is appalling. Sachedina argues:

“The term jihad with its long and complex history in Islam as it interacted with political power, has been used and abused to justify endless violence that has plagued many of these countries in the Middle East. The frequent abuse of the term by religious leaders led many Western observers to treat jihad essentially in the meaning of ‘holy war’ with an implication that Muslims international relations will continue to conflict-ridden because, as a religious obligation to fight dark forces of disbelief and arrogance, jihad will continue to determine Muslim relations with the non-Muslim world.”[10]
On a number of occasions, Islamic fundamentalists have argued that fighting is obligatory for Muslims, even when the unbelievers had not begun the hostilities. Their argument is based particularly on a Qur’anic verse, which is dubbed as “the sword verse”. The verse declares war on unbelievers in the following words:
“Slay them wherever you find them, and take them, and confine them and lie wait for them at every place of ambush.”[11]

Al-Qaeda’s reliance on this passage cannot be over emphasised. For bin Laden, jihad is an individual duty, which must be performed by all male, able-bodied Muslims, and not simply a collective one, which, if performed by sufficient number, relieves others from performing it. In his view, terrorism is a legitimate and morally demanded duty so long as anti-Muslim forces are carrying arms in Muslim lands, especially Muslim holy places. It is fair to call on bin Laden and his Al-Qaeda to consider whether they are not merely abusing the teachings of the religion they claim to love so much.

Apparently disturbed by the bad image being created about Islam by Islamic fundamentalists, Saudi Arabia’s highest religious authority has urged Muslims to shun extremism and avoid engaging in unjustified jihad. According to the Authority, “one of the fallouts from extremism in understanding Islam is that some people call for jihad for the sake of God without justification.”[12] The Authority added that “acts of sabotage, such as bombings, murder and destruction of property are serious criminal acts and an aggression against innocent people which warrant severe and deterrent punishment.”

Shortly after the September 11 attacks, it became clear that Osama bin Laden was hiding in Afghanistan. Despite incessant requests by the United States, the then Afghan’s ruling Taliban refused to hand bin Laden to the Americans. The justification of the resulting attack on the Taliban by the United States therefore lies in the fact the United States was entitled to defend itself.[13] The self defence response by the United States could be justified under Article 52, in that any attack the attack of September 11, though carried out by non-state actors but it was on such a grave ‘scale and have such effect that it would amount to an armed attack had it been carried out by the regular armed forces of a state.’[14] That position is illustrated in the case of Nicaragua, the court said that self-defence could include responses to the ‘sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed forces against another State of such gravity as to amount to (inter alia ) an actual armed attack conducted by regular armed forces, or its substantial involvement therein’. If a terrorist attack touches the required scale of gravity, it can amount to an ‘armed attack’.[15]
However, another argument would be that this does not lead to the conclusion that they were entitled to attack indiscriminately or disproportionately or embark on the use of force unilaterally against the territorial integrity of another nation without a UN mandate[16] (obtain without bulling). The pursuit of these indiscriminate uses of force is what John Strawson argued ‘destroys the notions of universal freedom and common humanity.’[17] Nonetheless, the United States feel completely justified; that international law and opinion was in her favour in her decision to invade Afghanistan, respective of Article 2.4 more so, the United Nations Security Council Resolutions in the aftermath of September 11 ‘the inherent right of individual and collective self defence’[18] supported that action.

Blaming Religion for Terrorism
It is not normal for people to blame a religion whenever extremists rely on religious teachings to justify terrorist activities. One cannot deny that on many occasions some Muslims are found involved in terrorist activities either on behalf of a group or on behalf of a country with a predominately Muslim population. As one writer put it:
‘It is not easy to close one’s eyes to various brands of terrorism which unfortunately flourish all over the world; in fact, it is impossible for an observer not to be aware of the persecution, bloodshed and murder, often in the name of some purported ideal or noble cause. Terrorism is a global problem and needs to be studied in its larger perspective. Unless we understand the forces behind the violence, we shall not be able to understand why some Muslim groups and states are turning to terrorism to achieve certain objectives’[19].

We are constantly inundated with talks of militancy and the use of force it is imperative that carefully analysed these information before we can understand the importance of these bizarre phenomenon. The narrow, non-tolerant attitude is certainly becoming more popular with the Muslim ‘clergy’ in almost all Muslim countries. The responsibility for this mainly lies on the shoulders of Saudi Arabia, which is attempting to capture the imagination of the whole Muslim world and seems resolved to spread its political influence under a religious guise. As it enjoys the unique advantage of being the custodian of the two holiest cities in Islam, Mecca and Medina, it is certainly in a position to exploit this situation to its best advantage.

The Muslim ‘clergy’ talk loudly about holy wars and the utter destruction of non-Islamic forces. What they actually mean by no Islamic forces is not Christian, Jewish, Buddhist, or atheist forces. According to their view, all Muslim sects other than their own are either no Muslim in their character or hold to doctrines that render them liable to earn the wrath of Allah and His true servants. The real enemies of Islam, as they discern them, are not non-Muslims but some sects of Islam within the world of Islam. The awakening militant tendencies are much more directed by Muslims of one sect against Muslims of another sect than against non-Muslims. This is why so much stress is laid by them on capital Punishment for Apostasy. That is their weapon against Muslims who differ on some doctrinal issues from the majority sect of a country. These sects are, in fact, dealt the death blow in two steps—first, their doctrines are declared to be non-Islamic, which earns them the title of apostates; and second, the doctrine of death being the penalty for apostasy, they are considered liable to be executed.

A neutral observer will agree that this growing militant tendency is creating disorder among the Muslims themselves and that it is responsible for generating extreme hatred in the hearts of adherents of one sect against the adherents of another.

As far as the non-Muslim powers are concerned, they can feel completely safe and should rest assured that there is no danger whatsoever to them from the so-called militant tendencies of the Muslim world. To demonstrate this, one has only to consider the relationship of Saudi Arabia with the West, particularly the USA. It is inconceivable that Saudi Arabia or countries under her influence could even dream of raising the sword against the USA or her allies. The Saudi regime is 100 per cent dependent for survival on the USA. Almost the entire wealth of the ruling family is deposited with American and Western banks. On top of this, the dependence upon the West for internal and external security is so obvious that it need not be dwelt upon here. These two factors alone guarantee that neither Saudi Arabia nor any Muslim country under her influence can ever pose a threat to the non-Muslim West. Moreover, the very fact that none of the Muslim states is today self-reliant in its production of war materials, and has to depend either upon the West or East for all of its defensive or offensive requirements, provides more than enough of a guarantee for the safe and peaceful conduct of their relations with no Muslim powers. The same principle is applicable to countries like Libya and Syria, which enjoy more cordial relationships with Eastern powers than with Western ones.

No one who has even a remote understanding of modem warfare can imagine a real threat from so-called ‘Islamic’ militancy. Of course, there is danger in these growing tendencies and one is bound to be perturbed by them. The danger from ‘Islamic’ militancy is a threat to the world of Islam itself; it is an inward-looking threat which is destroying the peace of Muslims everywhere. All the intolerance, narrow-mindedness and bigotry which we observe in the Muslim world today are playing havoc with the peace of the Muslim world.

There are, of course, regions of restlessness in the Muslim world where groups, organizations, and sometimes even governments, seem to be committed to acts of terrorism, violence and sabotage. In a majority of cases, those concerned happen to be Muslim by faith, but there are exceptions. Amongst Palestinians, for instance, there are many who have pledged themselves to terrorism against Israel, but happen to be Christian by faith. For convenience or through lack of knowledge they are all dubbed by the Western media as Islamic terrorists. In Lebanon, there have been Muslim terrorists and Christian terrorists, and also Israeli agents and soldiers involved at one time or another in terrorist activities which appals human sensitivities. But you will not hear of Jewish or Christian terrorism in relation to what is happening in Lebanon. All acts of violence are put together and wrapped up in the package of ‘Islamic terrorism’.
As far as Salman Rushdie is concerned, no sane person with any real knowledge of the Holy Quran can agree with Imam Khomeini that his death sentence is based on any Islamic injunction. There is no such punishment for blasphemy in the Holy Quran or in the Traditions of the Holy Prophet of Islam. Blasphemy against God is mentioned in the Holy Quran in the following words: ‘And abuse not those whom they call upon besides Allah, lest they, out of spite abuse Allah in their ignorance.’[20] No authorisation has been granted to any man to inflict any punishment for blasphemy against God. Blasphemy was committed by Jews against Mary; the mother of Jesus Christ.as It has been mentioned in the Holy Quran, where it says: ‘And for their disbelief and for their uttering against Mary a grievous calumny.’[21]

Disproportional Response to Terrorism
It belief that pre-emptive strike will make the Western World more secure is all but a fallacy. It is clear from strikes on Libya, Iraqi, Somalia, and Afghanistan that deterrence only served as an offspring of suicide bombers due to disproportionate response. Western policy on terrorism is to capture and incapacitate every terrorist cell. The question to ponder; how do you eradicate elements that breeds globally? Those who are aggrieved with policies they considered as oppressive, domineering – that is to say ‘imposing your way of life on us’ sets out to retaliate ‘eye for an eye’ by not only indoctrinating the youths but even the yet unborn. We are constantly reminded of that fact in the conflict between Israel and Palestine. These are determined Western enemies, set in their ideological ways – to destroy and murder, and are prepared to sacrifice their life for the beliefs they hold dear, respective of whether it made sense or not.
America and in particular, has vigorously embarked on pre-emptive strike as a cornerstone for self defence thus placing her citizens more in harms way, erodes on civil liberties, degrade international laws under the guise of national security. Hence, some commentators have come to see her devotion to the rule of law as a problem rather than a solution.[22] It is argued that, the kind of justice delivered by the American legal system, at its best, is not the answer. Citing that, the carefully prepared and scrupulously conducted trial of those who attempted to bring the World Trade Center down in 1993 had zero deterrence value. Furthermore, that ‘to catch the devil, they explained, we need to scythe our way through the tangle of procedural restraints that normally obstruct executive discretion. That rights against the state have become a liability rather than asset, giving the instance where the chief judge of the special federal court that supervises national security wiretaps had to force the FBI to shut down from “10 to 20 Qaeda wiretaps” in the year before 9/11 because apparently furious that the FBI had lied in their applications to conduct surveillance (Hirst and Isikoff, 2002:32).[23]

The argument is not against the need for a more comprehensive and robust national security measures. But the paramount need to respect and maintain rules and laws that are designed to ensure humanness fundamentals are not subjected to gross abuses as being experienced in the fight against terrorism thus sacrificing civil liberties.

Disproportionate use of counterterrorism instruments under the protective cover of national security and heavy handed discriminating policies as seen in the London Forest gate incident will certainly not enhance national security. It is thus argued that a legislative measure against terrorism has to be proportionate in other to win the heart and minds of perhaps tomorrow’s likely terrorist.

Beck and Arend identify three approaches to the principle of proportionality in response to terrorism. The first approach may be called ‘eye for an eye’ or ‘tit for tat’ proportionality. This means that a victim state must respond proportionately to some prior act of terrorism.118 The claim of self-defence must be rejected if ‘the nature and amount of force used is disproportionate to the character of the initiating coercion’.119
The second approach may be called ‘cumulative proportionality’. The proponents of this approach contend that the victim state's forcible measures should be proportionate to an aggregation of past illegal acts. For instance, Guy Roberts says that the equivalence in number of deaths and extent of property damage is the sine qua non of proportionality. He asserted that proportionality must be calculated on the basis of prior events. An accumulation of small events can justify a single larger retaliatory response in certain cases.120
*J.C. & S.L. 124 The third approach may be called ‘deterrent proportionality’. This approach argues that the victim state's use of force must be proportionate to the overall terrorist threat faced by the state. Professor O'Brien believes that counter-terror measures should be proportionate to the purposes of counter terror deterrence and defence and the referent of proportionality should be the ‘overall pattern of past and projected acts’.121 Professor Schachter contends that ‘tit for tat’ is not the only test for proportionality. There are two others: (a) the response in relation to a continuing pattern of attack rather than the last one and (b) proportionality judged in terms of the ends sought, for example the cessation of attacks and the means used.122 Similarly, Professor Baker states that self-defensive measures should be weighed against all attacks prior to the response and the probability and size of future attacks.123
The first two approaches makes more sense as it will be easy to measure the damage done in the case of one or more attacks. The third approach seems to be risky in that the size and probable damage cannot be measured in the case of probable future attacks. No one knows the exact size of damage in any probable attack. For instance, in the case of the 11 September 2001 attacks; one plane did not hit its target and fell into the fields of Pennsylvania. It raises two questions: (a) that the probable attack may be aborted and does not occur at all and (b) the planned attack may not happen in the manner it is planned. Hence, this approach or at least the part dealing with ‘probable and size of future attack’ is problematic and it would be very hard to decide what is proportional. Greater risk of abuse is involved in this approach.

Who decides the question of ‘enough’?

The right of self-defence is a self-judging principle but the international community must judge its propriety.124 If the victim state claims that it has the exclusive authority to determine the lawfulness of the use of force in self-defence, then ‘the law has reached a vanishing point’.125 The Nuremburg International Tribunal also rejected this argument when the Nazi leaders argued that Germany had acted in self-defence and in any given case, it is to the state to decide whether it has such a right.126 The right of self-defence can be initiated at the discretion of the state that is when the state believes that it has been attacked or such *J.C. & S.L. 125 attack is imminent. However, the final assessment of its lawfulness lies with the international community.
The right of self-defence is a general principle of law … It is recognised to the extent… that recourse to it is not itself illegal. It is regulated to the extent that it is the business of the courts to determine whether, how far and for how long there was a necessity to have recourse to it. There is not the slightest relation between the content of the right of self-defense and the claim that it is above the law and not amenable to evaluation by the law. Such a claim is self-contradictory in as much as it purports to be based on legal right and as, at the same time, it dissociates itself from regulation and evaluation by the law.127
A state has an initial power to qualify its actions as being in self-defence, and this classification continues to operate unless the international community determines otherwise. The same is true with regard to the termination of the right to act in self-defence. If, despite a call for a cease-fire by the Council, hostilities continue, it is for the community to decide upon the consequences that flow from the failure to abide by the Council's decision.128 Professor Waldock asserts that it is for the Security Council to determine whether the right to self-defence has come to an end.129 ‘If the Council is paralysed and fails to take any measure necessary to maintain international peace and security, the legal position is equally obvious: a Member State exercising the right of self-defence may persist in the use of force’.130
The right to self-defence is the natural and independent right of a state. It can be initiated and may continue as long as is necessary in the opinion of the victim state until either the objective for using force is achieved or the Security Council has taken effective measures. However, decisions on its lawfulness and propriety are for the international community at large and organisations such as the United Nations, regional organisations and interested individuals.

Western Policy on Terrorism
The world at large, except for the terrorist and their supporters has reacted vehemently to terrorism. Be it State sponsored in the name of national security or Islamic fundamentalist, the likes of Osama Bin Laden - Al-Qaeda, terrorism is a cowardly and despicable act and not to be to tolerated in any society. Robert Elias, explained that, “the perpetrators must be brought to justice”[24] this paper agrees, however, it questioned, what when the act was committed by a powerful State such as the United States in the name of national security? When a super power that ought to be a custodian of international law, gravely dilute it by undermining the UN Security Council, how can justice be properly served, or is same violator to be judge and jury?

Western nations swiftly introduced measures aimed at eliminating terrorists, but the question remains; can it ever be completely eradicated without foreign policy changes, in other words, understanding the root causes of terrorism? Western Nations especially United States is convinced that the perpetrators of terrorist acts – Islamic fundamentalist hates our democratic way of life and thus seek by all means necessary to change or destroy our way of life. In the aftermath of 9/11, it was argued that “in trying to understand why this terrorism has occurred, we’ve been given little help by those upon which we rely for information ... our officials refuse to ask the question “why,” except in terms of stereotypes that divert us from the causes and focus us instead of the symptoms.”[25] There is always another facet to any argument, likewise there is no fire without its cause, and it should not be inconceivable that, in this respect, American foreign policy may have single headedly provoked the barbaric and cowardly acts of 9/11 and any other acts of terrorism, past and present. 9/11 and SS Cole has proven to be the backlash that some commentators predicted against the US foreign policies. Former US Secretary of State Lawrence Eagleburger admitted, a few years ago, that: “We’ve presented to the rest of the world a vision of the bully on the block who pushes a button, people out there die, and we don’t pay anything except the cost of a missile... that’s going to hunt us in trying to deal with the rest of the world in the years ahead.” It is clear that such words of wisdom were discarded, the consequences are all but crystal clear for all to see: Islamic fundamentalist have concluded that Americans need to begin suffering in order to change the United States policies towards to the Muslim world.[26]

The United States spearheaded a campaign of far reaching legislative ‘USA-Patriot Act’ measures to combat terrorism. A matrix of international and domestic law was constituted in which concerns for security were introduced at the expense of human rights.[27] Countries like United Kingdom, Canada, Australia, pursued similar measures. These measures enjoyed by the government agencies are very extensive powers of stop and search, seizure of goods or properties, arrest and detention without trial. It has to be said that many of these measures violates fundamental human rights.

The United Kingdom introduced legislative measures[28] in the wake of the London bombings of July 2005 and, amongst other things, creates new offences, such as encouragement of terrorism, disseminating terrorist publications, and training for terrorism. It also extends the power of the Home Secretary to proscribe terrorist groups and allows proscription to continue when the organisation changes its name. Most controversially, the 2006 Act permits those suspected of terrorist offences to be detained and questioned by the police for up to 28 days without charge, though periods of more than two days must be approved by a judicial authority. There can be no doubt that the damage to the mental health, personal and family relationships and employment of those detained for periods as long as this is likely to be considerable. Furthermore, being in prolonged police detention puts detainees under considerable pressure to confess. However, the evidence from Northern Ireland indicates that most confessions in such processes are, in fact, made in the first 48 hours. It is also well known that detention regimes such as these can produce false confessions which, in their turn, can lead to miscarriages of justice.

The 28-day pre-charge detention period would, therefore, appear to constitute a violation of human rights. But this is not entirely clear cut. The problem is that the appropriate length of pre-charge detention cannot be determined precisely by reference to human rights standards because international human rights instruments do not specify exact limits. The requirement found in the European Convention on Human Rights, for example, is that those arrested shall be informed “promptly” of the reasons for the arrest and any charge against them (Art.5(2)), and that they shall be brought “promptly” before a judge (Art.5(3)). The European Court of Human Rights has also refused to read precise time-frames into these provisions and prefers instead to decide each case on its merits with reference to the relevant context. The Government believes the 28-day detention power complies with the Convention and, by contrast with the power of preventive detention in the 2001 Act, has not sought to suspend the right to be brought promptly before a judge by entering derogation under Art.15. In any litigation before the European Court of Human Rights the key question would, therefore, be: what characteristics does the current terrorist threat have for the United Kingdom which may justify such an extended power of pre-charge detention? The Government originally advocated a 90-day period on the grounds that much more time is required, compared with other offences, to examine both the international connections of contemporary terrorist networks and the complex information technology, including mobile phones and computers, upon which they typically rely. Twenty eight days was, therefore, a compromise. Clause 22 of and Sch.1 to, the Counter-terrorism Bill 2008 seek to extend this period to 42 days. However, the fact that the United Kingdom's 28-day pre-charge detention period is considerably longer than that of any other western democracy, including other Convention Member States and the United States, tends greatly to undermine the claim that it is necessary and proportionate. It is doubtful, therefore, if 28 days, let alone 42, could be deemed to satisfy the Convention test.
In a blow to the government's anti-terror measures, the House of Lords ruled by an eight to one majority in favour of appeals by nine detainees. That "Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford.”
Detaining foreign terrorist suspects without trial breaks human rights laws, the UK's highest court has ruled.[29] It is left to be seen whether Gordon Brown can pass the proposed 42 days detention of terrorist suspect without trial into law where Tony Blair had failed in trying to extend the detention-without-charge period to 90 days in 2005.The 42-day proposals came under renewed attack from former Attorney General Lord Goldsmith, who warned the move would be an attack on the country's "fundamental freedoms".

QLike the United Kingdom, the Federal government of Canada created Canada’s first anti-terrorism legislation.[30] The "omnibus" bill grossly extends the powers of government and institutions within the Canadian security establishment[31], thus trampling on civil liberties under the guess of national security. The security establishment can arrest people and hold them without charge for up to 72 hours if they are suspected of planning a terrorist act. The expanded powers were highly controversial due to widely[32] perceived incompatibility with the Canadian Charter of Rights and Freedoms, in particular for the Act's provisions allowing for 'secret' trials, preemptive detention, and expansive security and surveillance powers.[33]Of the two clauses that are at the heart of the debate, one allows police to arrest suspects without a warrant and detain them for three days without charges if police believe a terrorist act may be committed. The other would allow a judge to compel a witness to testify in secret about past associations or perhaps pending acts under penalty of going to jail if the witness doesn't comply.

Blow Back
In an attempt for the Western world to impose democracy in the middle east and promote her interest irrespective of the regions desires, foreign policies where formulated and implemented, the norms of international order, laws was disregarded or manipulated in other achieve those aims. The consequences - blow back, otherwise known as, “an eye for an eye” of those acts is what has now come brought about all the despicable, barbaric acts and utter disregard for human lives as perpetuated by those we now term as terrorist.

Western Policy and International Law
The aftermath of 9/11 brought to the fore front how the war on terror was advanced by President Bush and former UK premier Tony Blair severely undermined international criminal and human right laws. It is herein argued that, in the context of President Bush foreign policies: war against terrorism, disregards for customary and international law; human right laws became clothed as laid down by the United Nations, it is hard to comprehend how law and power can ever be brought into a relationship in which there is a perspective for justice, as suggested by Bill Bowring.[34]

As the aftermath of September 11 has progressed, the United States’ view of international law has become increasingly out of step with the rest of the world, including her allies. The rejection of the international Criminal Court has become a central aspect of United States policy. The DeLay Act gives the administration powers to cut off military aid to states that do not enter into agreements with the United States to prevent the prosecution of United States citizens before the Court. The law also permits a US government to use military means to free any Americans that might be detained by the Court.[35] It is surprising to hear President Bush use such term “outlaw” loosely when the United States that is a great preacher of democracy and observance of the rule of law, domestic or international, flouts it at a wimp whenever it does not suit her purpose. It thus begs the question, if you as supreme tutor fail to abide by your teachings, what right do you then have to call others “outlaw?”

The war against global terrorism cannot be won with “shock and awe” might, as the case of Iraq has demonstrated because the United States had engaged and dragged her allies into unrealistic political war, that bears no connection in any facet to September 11 and the outcome has made the United States and her allies less safer today. United States presidential for 2008, Barrack Obama nailed that point “because of war in Iraq that should never have been waged, we are now less safe than we were before 9/11.”[36] Anita Inder Singh, further enlightened our minds as to these never ending war on terror, “political cynicism and inhumane warfare have yet to show signs of a successful anti-terrorist war, rather the opposite. Increasing Taliban violence in Afghanistan, where the war against terrorism started, the mess created by the illegal Anglo-American invasion of Iraq, and the talk of western "exit strategies" and "retreat", bear this out”.[37] Iraq has now become a breeding ground for terrorist sponsors contrary to what President Bush would have us believe.

Curtailment of civil liberties
After September 11, 2001 the then Home Secretary, David Blunkett rushed through British counter-terrorism legislation – The Anti-Terrorist, Crime and Security Act, certified by him as being compatible with the European Convention on Human rights. But many of its provisions were widely criticised for curtailing civil liberties. Similarly, in Canada, the anti-terror legislation was perceived to have grossly infringed on civil liberties. Counterterrorism measures as illustrated in some cases have seen a complete flouting of international law and disregards for human rights. International criminal and human rights law are intrinsic to world order – peace and security, as established in the United Nations charter signed into law after the Second World War in Europe in June 1945.

Conclusion
The paper argued also, that, should the west choose a foreign policy route that is engaging, compassionate, abides and respect international law, such policy changes should also encompass nations that their sovereignty were previously, severely undermined. Only then, will the process of uprooting the causes of terrorism can begin. But before that, is the need for understanding of what spouse these people to engage in acts of terror.
[1] For the definition of the term, see for example, http://www.terrorismanswers.com/home

[4] See for example, Gold, D., and (2003) Hatred Kingdom: How Saudi Arabia Supports the New Global Terrorism. Washington DC: Regnery Publishing Inc. Chapter 1
[5] See for example Miller, J., (1999), “Greetings, American. My Name is Osama bin Laden Frontline Website http://wwww.pbs.org/wgbh/pages/frontline/shows/binlade/.
[6] Middle East Media Research Institute: Special Dispatch. 2003, January 6. www.memri.org/bin/articles.cgi?
[7] See Qur’an Chapter 2:193)
[8] Sachedina, A., From Defensive to Offensive Warfare: The Use and Abuse of Jihad in the Muslim World. http://www.people.virgina.edu/~ass/article/article8.thm
t Al-Qaeda is abusing the doctrine of jihad.t groups, iide bombing, take away the lives of innocent people, one may conclude tha
[9] Ibid.
[10] Ibid.
[11] Qur’an Chapter 9:5
[12] Don’t Abuse the Concept of Jihad: Grand Mufti; Riyadh, 22 August, 2003. http: www.allaahuakbar.net/JIHAD
[13] See Article 51 of the United Nations Chapter
[14] Shah, A. Niaz (2007) Journal of Conflict & Security Law: Self-defence, anticipatory self-defence and pre-emption: international law's response to terrorism

[15]Ibid, ICJ Rep. 1986.
[16] Article 2.4 of the UN Charter and corresponding customary rule
[17] See Law after ground zero, 2002.
[18] Ibid
[19] Ahmad, M. T. (1989) Murder in the Name of Allah. Cambridge: Lutterworth Press
[20] (Ch. 6:109)
[21] (Ch.4:151)
[22] Holmes, S. (2002) Why international justice limps. (International Justice, War Crimes, and Terrorism: The U.S. Record). http://www.encyclopedia.com/doc/IGI-97756593.html visited 11/05/2008
[23] ibid
[24] Terrorism and American Foreign Policy (September 25, 2001). http://www.tanbou.com/2001/fall/USForeignPolicyElias.htm (visited May 1, 2008)
[25] ibid
[26] ibid
[27] See Strawson, J., above at p. xiii
[28] The Terrorism Act 2006
[29] See BBC News (Thursday, 16th Dec 2004) http://news.bbc.co.uk/1/hi/uk/4100481.stm
[30] The Anti-terrorism Act (Bills C-36 and C-42) 2001
[31] http://www.justice.gc.ca/eng/antiter/index.html
[32] On Oct. 24, 2006, a Superior Court judge struck down the motive clause, saying it violates the Charter of Rights and Freedoms. The judge was working on the case of Mohammed Mormin Khawaja, the first person charged under the new anti-terror provisions.
[33] http://www.cbc.ca/news/background/cdnsecurity/
[34] Stawson, J. (2002) Law after ground zero: Ch 1, The degradation of international law.
[35] Ibid, p.xiii
[36] Remarks of Senator Obama: The war we need to win. Washington, DC, August 01, 2007. http://www.barackobama.com/2007/08/01/the _war_we_need_to_win.php
[37] http://commentisfree.guardian.co.uk/anita_inder_singh/2008/01/blowback_in_the_war_on_terror.html

DARFUR: Critical Evaluation of the International Community's Response to the Crisis

2009-07-24T03:31:00.006+01:00

The role being played by the international community in connection with restoration of peace in the Darfur region of Western Sudan has attracted concerns all over the world. Virtually, no single activity embarked upon by the United Nations (UN), which is intended to contribute to the end of the crisis prevailing in Darfur, has been able to escape comment from international lawyers and academic commentators. Perhaps it is fair to say that any commendation or condemnation directed at the UN for its response to the crisis is justifiable.

The humanitarian crisis in Darfur began in 2003, and since mid 2004, the crisis has reached such a height that it is almost beyond description. The crisis is the result of an armed conflict between the Sudanese government and two main rebel groups called the Sudanese Liberation Army (SLA) and the Justice Equality Movement (JEM). The Sudanese government sponsored a group of Arab militias called Janjaweed, which was entrusted with the duty to assist the Sudanese troops in targeting and attacking civilians perceived to be helping and harbouring the rebels. Most of the victims of the crimes committed in Darfur are ethnic black Africans and the rebel groups have been fighting against the Sudanese government over its alleged policies of discrimination, marginalization and underdevelopment of their southern region.[1]

Needless to say, the situation in Darfur is a pathetic one. The UN, and for that matter the international community, is currently striving to restore peace in Darfur by adopting measures to bring the perpetrators of the crimes committed in the area to justice and to obtain reparation for the victims. However, before examining such measures, it is fair to hurl criticism at the UN for its initial inaction. There is no doubt that the crisis could have been prevented at least from reaching its present level had the UN responded promptly to the conflict between the Sudanese government and the rebels. As the executive director of the ‘Minority Rights Group’ (MRG) puts it, “this level of crisis, the killings, rape and displacement could have been foreseen and avoided ... Darfur would just not be in this situation had the UN systems got its act together after Rwanda: their action was too little too late."[2]

The Darfur region has about five million people, most of whom are ethnic black Africans with some Arabs. Whereas the militias fighting on behalf of the Sudanese government employed systematic crimes of ethnic cleansing and slavery to force the southern native black Africans to abandon their way of life, the rebel groups mainly targeted government institutions such as police stations and an airport. They also attacked military aircrafts and killed scores of soldiers. More than thousands of civilians have killed in Darfur since 2003 particularly by the Janjaweed. Another inhumane act committed by the Janjaweed was that it members blocked the flow of food and humanitarian aid meant for the people who had been displaced by the conflict. Such and act was intended to flee the area of the conflict. The militias also indiscriminately committed crimes and human rights abuses, which included rapes, massacres and forced evictions and destruction of water sources. In fact the crisis was such that it has been described by the UN 'as the world's worst humanitarian crisis'[3] Even before the Commission of Inquiry was establish to investigate the situation, a two UN human rights fact-finding reports revealed that many of the acts committed in Darfur might constitute war crimes and/or crimes against humanity and made recommendations to alleviate the suffering of the displaced, to redress the wrongs committed, and to bring the perpetrators to justice[4]

As a starting point of its response to the crisis, which clearly satisfies the requirements of an internal armed conflict under Article 3 of the Geneva Conventions, the UN Security Council adopted a resolution in July 2004 (Security Council Resolution 1556 (2004)) under Chapter VII of the UN Charter, which approved the peace accord signed by the Sudanese government and the rebel groups to end the war. This resolution also required the Sudanese government to disarm its sponsored group, the Janjaweed militia, within thirty days and to punish its members responsible for committing atrocities and human abuses. The resolution contained a threat to impose economic sanctions should Sudan fail to comply.[5] A subsequent resolution (SC Resolution 1564 (2004)) adopted on the crisis in September 2004, threatened to impose additional sanctions on Sudan should it continue to disregard the first resolution.[6] This resolution also requested the UN Secretary-General to set up a Commission[7] of enquiry to investigate “reports of violation of international humanitarian law and human rights law in Darfur by all parties”. It is the recommendations contained in the Commission’s report and referral of the situation in Darfur to the International Criminal Court (ICC) which this paper examines in detail.

The Commission set up by the Secretary-General submitted its report (Report of the International Commission of Inquiry on Darfur to the Secretary-General) to the Secretary-General on 25 January 2005. It must be mentioned that upon the request contained in the Security Council Resolution 1564, the Commission was also entrusted to determine whether or not acts of genocide had occurred. According to Article 5 of the Rome Statute, which established the ICC, the ICC has jurisdiction in accordance with the Statute with respect to the crime of genocide, the crimes against humanity, war crimes and the crime of aggression. With regard to the meaning of genocide, Article 6 of the Statute provides the following:

For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

The Commission found that the Sudanese government has not pursued a policy of genocide. It is clear from the report that the actus reus of genocide, that is the killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction were found to have occurred. There was also the existence of a protected group being targeted by the authors of criminal conduct. What appeared to be missing, according to the report, was the element of genocidal intent. The report further states:

Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.

The commission, however, found that international offenses such as the crimes against humanity and war crimes have been committed in Darfur and that such crimes are no less serious and heinous than genocide. According to the report, there are individual perpetrators who are possibly responsible for the crimes committed in the region. They include officials of the Sudanese government, members of militia forces, members of rebel groups, and certain foreign army officers acting in their personal capacity. The report also found that some government officials, as well as members of militia forces, are also responsible for joint criminal enterprise to commit international crimes. The Commission emphasized in the report that it “makes an assessment of likely suspects, rather than a final judgment as to criminal guilt. The Commission’s conclusion thus runs contrarily to that of the United States’ Congress, which unanimously described the Darfur crisis as ‘genocide’ in July 2004.[8]

The Commission emphasized the need to do justice by referring to the gravity of the crimes committed against the innocent civilians in Darfur. The report advises that those responsible for the crisis must be brought to justice, and measures must also be initiated to bring relief and redress to the victims ‘to complete the process of accountability. Accordingly, the Commission called on the Security Council to immediately refer the Darfur situation to the International Criminal Court (ICC), pursuant to Article 13 of the ICC Statute.[9] The Commission calls upon the Security Council to immediately refer the Darfur situation to the International Criminal Court[10], Pursuant to Article 13(b) of the ICC Statute. The reason for the Commission’s recommendation is that the Darfur situation constitutes a threat to international peace and security. According to the Commission, serious violations of international human rights law and humanitarian law by all parties are continuing. The belief entertained by the Commission is that the prosecution by the ICC of the persons allegedly responsible for the ‘most serious’ crimes in Darfur would contribute to the restoration of peace in the region.

Perpetrators of violations of international humanitarian law and human rights law can be tried by a national court or an international court such as the ICC. The ICC is a court of last resort. This means that if a case is investigated or prosecuted by a national judicial system it will not act unless the national judicial system cannot be relied upon for genuine or fair trial. The Commission has proposed to the Security Council to refer the Darfur situation to the ICC and not to a national court. The Commission states the reason why it believes that a Sudanese national court is not an appropriate court to try the alleged offenders:

…the very nature of most international crimes implies, as a general rule, that they are committed by State officials or with their complicity; often their prosecution is therefore better left to other mechanisms. Considering the nature of the crimes committed in Darfur and the shortcomings of the Sudanese criminal justice system, which have led to effective impunity for the alleged perpetrators, the Commission is of the opinion that the Sudanese courts are unable and unwilling to prosecute and try the alleged offenders. Other mechanisms are needed to do justice. [11]

The Commission also entertains the view that the ICC is the court to be resorted to for a number of reasons. First, the Commission contends that the ICC was established with an eye to crimes likely to threaten peace and security. According to the Commission, the investigation and prosecution of crimes perpetrated in Darfur would have an impact on peace and security. The Commission further contends that, it would be conducive, or contribute to, peace and stability in Darfur, by removing serious obstacles to national reconciliation and the restoration of peaceful relations. Although it will be unfair to disrespect the views of the Commission, it has to be said that the ICC cannot be honestly described as the only appropriate court or, as the Commission put, ‘the only credible way’ of bringing the alleged perpetrators of the crimes committed in Darfur to justice. In fact, there will not be any need to take a case to the ICC if a national court undertakes to investigate and prosecute perpetrators of violations of humanitarian law and human rights law. The Commission’s assertion implies that only the ICC can be relied upon for the fair trial of persons accused of violating humanitarian law and/or human rights law. However, as the world witnessed recently, the former president of Iraq, the late Sadam Hussein, was successfully tried by an Iraqi national court for similar offences. The fact that the ICC “was established with its eye to crimes likely to threaten peace and security” does not also guarantee that resorting to it for the trial of the alleged “Darfur offenders” will contribute to peace and security in Darfur. One would have rather loved to hear nothing more than that the ICC should be resorted to because the Sudanese government is unable or unwilling to act.

Another of the reasons given by the Commission for its assertion that the ICC is the only credible way of bringing the alleged offenders to justice is that the ICC could be activated immediately without any delay – which would be the case if one to establish ad hoc tribunals or so called mixed or internationalised courts. The Commission’s claim is unfounded because although the Security Council referred the Darfur situation to the ICC on March 31 2005 the alleged offenders are yet to be brought to justice.[12] To date, all that is known is that the ICC on 1 May 2007 issued a warrant of arrest for the Minister of State for Humanitarian Affairs in the present Government of the Sudan, Mr Ahmad Muhammad Harun.[13] Besides, the ICC is a newly established court, and therefore whether it is capable of trying a case without delay remains to be seen.

Prior to the Commission’s report, it was hoped that a special tribunal could be set up by the UN Security Council for the trial of the perpetrators of the crimes committed in Darfur, as was the case in countries such as Rwanda for similar crimes. In fact, having a special tribunal to try the alleged perpetrators would have meant that the international community considered the Darfur situation as a special issue which deserves a special attention. However, the Commission advises against other mechanisms for bringing the alleged perpetrators to justice. The reason given by the Commission is that other mechanisms, such as ad hoc tribunals are very expensive and ‘slow in prosecution and punishment of indicted persons.[14] One would have found it reasonable to agree with the Commission if it had argued that since there exists now an international criminal court there is no need for a new mechanism to be put in place to secure the prosecution and punishment of the alleged offenders. As said above, the ICC, being a new court, has no relevant decisions which can be cited in support of an assertion that proceedings in the court will suffer no delay. Clearly, it is the circumstances of a given case that determines how long proceedings will last in court.

The ICC prosecutor took office on 13 June 2003 and since then there have been three self-referrals. Uganda referred to the prosecutor on 29 January 2004, The Democratic Republic of Congo on 19 April 2004 and the Central African Republic on 7 January 2005. Clearly, the rationale for all these self-referrals was to get the prosecutor to conduct investigations into crimes alleged to have been perpetrated by rebels fighting against central authorities. Much as this may be seen as attesting to the fact that a new mechanism for the trial of perpetrators of international crimes has emerged, it is difficult to pinpoint any fruit that these self-referrals to the ICC have yielded. As regards the Darfur situation, the prosecutor had, until a warrant was issued for the arrest of the alleged perpetrators of the crimes in question, reported more than two times to the Security Council, pursuant to resolution 1593 (2005). Given that the Sudan has not yet ratified the Rome Statute, the arrest and trial of the alleged perpetrators of the crime are bound to encounter resistance. Not long after the referral of the case to the ICC, the Sudanese authorities made it clear that if the ICC wanted to carry out observation task, in connection with the Sudanese judicial authorities in order to feel relieved and certain, the Sudanese government had no problem or objection. However, said the Sudanese authorities, if the ICC wanted to begin any procedures to try Sudanese citizens, ‘this is unacceptable.[15]

What Articles 12(3) and 87(5) of the Rome Statute imply is that states that are not party to the treaty are not under obligation to co-operate with the ICC. The treaty will only be binding upon them if they have signed an agreement to co-operate with the court.[16] Apart from not being a state party, the Sudan has not, by declaration lodged with the ICC’s Registrar, accepted the exercise of jurisdiction by the court with regard to the crimes committed in Darfur. Thus it is the Security Council, acting under Chapter VII of the UN Charter, which has triggered the ICC’s jurisdiction by a referral to the court’s prosecutor, pursuant to Article 13 (b) of the Rome Statute. How then, could the ICC be described as the only credible way of bringing the ‘Darfur perpetrators’ to justice? To say the least, the picture painted about the ICC by the Commission is regrettable. It is as if the ICC, which has no jurisdiction over certain categories of international crimes[17] has no shortcomings of its own. It is difficult to imagine how the ICC, which is meant to rely on state co-operation, can function efficiently without such co-operation.

The Security Council has kept itself busy with deliberations on the Darfur situation even after referring the case to the ICC’s prosecutor. Obviously, this explains the Council’s determination to help restore peace in Darfur as soon as possible. Another possible reason is that it is trying to atone for its initial inaction, which caused it much criticism. However, the criticism will not go away in as much as there are still reservations about the fairness and objectivity of the ICC. It is the Security Council’s way of handling the situation that has brought the fairness and objectivity of the Court into question. The case has been referred to the ICC, a judicial body, yet the Security Council cannot stop meddling in the case. The Council’s resolution 1672 (2006), has placed member states under obligation to adopt sanctions against a number of Sudanese nationals involved in the Darfur conflict. The sanctions include freezing of assets abroad and prevention of international travel. It has been argued that the legitimacy of the ICC would not be sustained on the basis of occasional referrals based on political expediency but would depend on the consistency of its work.[18] The sanctions against individuals allegedly involved in the conflict have also been described as ‘mainly symbolic’ on the grounds that those persons are unlikely to have financial assets abroad or be interested in international travel.[19] Thus, even before the ICC begins its trial of the alleged perpetrators of the crimes committed in Darfur, which has to date shown no perceptible sign of coming to an end, its credibility has, to some extent, been undermined by the conduct of a political institution. The consequence of this is that people all over the world are observing the ICC’s handling of the matter with keen interest.

The international community has also taken it upon itself to seek compensation for the victims. Given what the victims have gone through, it is impossible to find any reason to criticise such a move. What cannot, however, escape comment is the manner in which the compensation is to be sought. The Commission of inquiry recommends that a compensation commission, which will deal with compensations for the victims, be set up by the Security Council. The Commission's proposal, according to the report, is based on moral as well as legal grounds. It is reasonable to accept that if the seeking of compensation is based on moral grounds then the ICC as a judicial body does not have to be involved. Nonetheless, it is difficult to picture how award of compensation based on moral grounds will not encounter any problem. Victims of rape are not going to be identified by the compensation commission itself. What then will be the test for proving a claim based on rape? Will any individual who claims to be a victim of rape have to undergo a medical examination to prove her case? Regrettably, the Commission's report fails to take account of this eventuality. The Commission argues that

The Commission's proposal also raises the issue of the scope of international law. International law regulates relations between states.[20] On the face of it, individual persons cannot resort to it for compensation. Individuals seek compensation in their national courts for any damage or injury suffered as a result of a state's or another individual’s conduct. This is something the Commission acknowledges in its report. However, in an attempt to justify its proposal for the establishment of a compensation commission, it states in the report:

The emergence of human rights doctrines in the international community and the proclamation of human rights at the universal and national level since the adoption of the United Nations Charter in 1945 had a significant impact on this area as well. In particular, the right to an effective remedy for any serious violation of human rights has been enshrined in many international treaties. Furthermore, the United Nations Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly in 1985, provides that States should develop and make readily available appropriate rights and remedies for victims.[21]

The ICC, which the Commission describes as the only credible mechanism by which the 'Darfur offenders' can be brought to justice, is not seen by the same Commission as a credible or reliable institution to deal with the award of compensations for the Darfur victims. The conclusion that may be drawn is that if award of compensation based on legal grounds is to be entrusted to a commission, which the Security Council is advised to established, then the resort to ICC is far from being the only credible way of bringing perpetrators of international crimes to justice. Similarly, as mentioned above, cost was one of the Commission's reasons for advising against the establishment of an ad hoc committee for the trial of the alleged 'Darfur Offenders'. It is surprising therefore as to why the Commission failed to realise that it is equally expensive to establish a commission to deal with compensation for the victims. With regard to the proposal in question, Tomuschat asserts that:

The creation of a system that would grant compensation also to crimes not only perpetrated by the Janjaweed militias, but also by the rebel movement groups, would bring the Security Council to the outer limits of its jurisdiction. Essentially, the Security Council has been entrusted with powers needed to rein in injustices committed by states. However, the Report has found that the Government of the Sudan bears overall responsibility for the injurious consequences, given its connivance with the Janjaweed forces or, in any event, its laxity in taking protective measures. As far as the rebel movement groups are concerned, according to a practice extending over decades, the Security Council has also addressed such movements by often treating them on the same footing as governmental authorities. Furthermore, a reparation scheme would be profoundly marred by injustice if it used distinctions based on the governmental or non-governmental appurtenance of the perpetrators, which, in many instances, cannot be reliably ascertained.[22]

It can be said that the apart from its initial inaction the international community has performed below expectation with respect to restoration of peace in Darfur. The Security Council's adoption of a number of resolutions by the UN Security Council for the achievement of the same goal is also nothing to write home about. The view that the referral of the case to the ICC does not guarantee international peace and security is shared by many commentators. It has been argued that the ICC could never be a panacea for the ills of international criminal justice nor would it be the answer to states' practice of impunity for international crimes. But it could contribute to the process of narrowing that gap.[23]

In conclusion, the case has already been referred to the ICC, and its withdrawal is highly unlikely. It is hoped that sometime in the future the perpetrators of the crimes, whose arrest and trial has been sanctioned by the Court, will be brought before the Court, but it must be reiterated the international community's response to the conflict is far from ideal.

Reference
[1]Islam, Rafiqul, M. “The Sudanese Darfur Crisis and Internally Displaced Persons in International Law …” International Journal of Refugee Law, 2006 18 (354)
[2]Lattimer, Mark. "UN could have averted Darfur crisis - MRG", Independent Online, October 16, 2006
[3]Kofi Annan's address at Harvard University on 8 July 2004, http:/ /www.cnn.com/2004/WORLD/africa/06/11/sudan.un/index.html.
[4]Report of UNHCHR on 'situation of human rights in the Darfur region of the Sudan', Commission on Human Rights, 61st session, Item 4 of the provisional agenda, UN Doc. E/CN.4/2005/3 of 7 May 2004, 22-25.
[5]http:/ /www.un.org/apps/news/story.asp?NewsID=11271&Cr=sudan&Cr1=; http:/
[6]Measures threatened included oil embargo
[7]The Commission was set up in October 2004 and was composed of five members
[8] http:/ /www.cnn.com/2004/WORLD/africa/07/23/un.sudan.ap/?headline=congress
[9]Paragraph 565 of the report
[10]The Security Council referred the Darfur crisis to the ICC on 31 March 2005
[11]Para 568 of the report
[12]The Prosecutor, however, initiated investigations and submitted a progress report to the Security Council on 13 December 2005
[13] http:/ /www.icc-cpi.int/cases/current_situations/Darfur_Sudan.html.
[14] Paragraph 574 of the report
[15] English-aljazeela.net/NR/exeres/554FAF3A-B267-427A-B9EC-54881BDEOA
[16]Rome Statute, article 12(3)
[17] The Court has no jurisdiction over aggression and terrorism
[18] Bassiouni, Cherif, M. ‘The ICC – Quo Vadis?’ Journal of International Criminal Justice, 2006, Vol.4 No.3 (421)
[19] Cassese, Antonio, ‘Is the ICC still Having Teething Problems? Journal of International Criminal Justice, 2006 Vol. 4 No.3 (434)
[20]This is what the 1949 Geneva Convention is all about.
[21]Paragraph 595 of the report
[22]Tomuschat, Christian, Darfur – Compensation for the Victims, International Journal of Criminal Justice, 2005, Vol 3 No. 3 579
[23] Ibid. fn 18

A Review of AU response to Corruption in Africa

2009-07-24T03:12:00.004+01:00

Abstract
This paper examines the African Union’s fight against Corruption in African Countries. While developing countries are striving to achieve socio-economic integration, there are a number of social and political evils that undermines economic growth in these countries. This paper analyses the causes and effects of corruption, which has constitutes a severe constraint to economic growth. The paper argues that much as the African Union deserves commendation for the role it is playing towards eradication of corruption in Africa, the measures adopted by the Union can hardly help reduce corruption to any appreciable extent, due to some factors that militate against such measures.

Introduction

The African Union was founded in July 2002 at the Durban Summit, following the Sirte Declaration on 09 September 1999 and succeeded the Organisation of African Unity. The establishment of the African Union was as a result of the various initiatives by the OAU amongst which was the greater need for a process of accelerated, sustainable socio-economy, cultural and political integration in the African continent. There is no doubt that it was modelled on the European Union which itself was previously known as The European Economic Union (EEC). While the OAU was fighting diplomatically against racism and apartheid and decolonisation and the Soviet Union and the West were watching each other with more than an eagle eye and ready to press the Red button of destruction, the AU became the aftermath of that. The changing faces of the East – West relationship from the ever ready to lunch the weapons of mass devastation to that of cooperation was noted by the Heads of State of the defunct OAU at their two days summit of Twenty-sixth Ordinary Session of the Assembly in Addis Ababa, Ethiopia in July 1990.

The Heads of State and Government of the OAU in that summit took a critical review of the political, social and economic situation of the Africa continent, in light of the rapid changes taking place in the World and their impact on Africa, as presented in the Report of the Secretary General on the Fundamental Changes taking place in the World and their Implication for Africa: Proposal for an African Response.[1] The real treat of the African Continent’s marginalisation in global affairs, especially in socio-economics situations which remains precarious today is now much a greater and in present danger than ever before, unless the AU tackles the menace corruption of in all its forms.

The African has suffered from decades of socio-economics, cultural and political decades of decline and marginalisation. The aftermath of independence has witnessed nothing but a string of wide spread corruption and gross abuse of power dictators as Heads of Government with poor economic policies and civil wars. Corruption has and continues to be cankerworms deep in the mind set of over 99% of African Heads of Government and her people both in the public and private sector. “Its deep effects on society have been described as being worse than prostitution. While prostitution may jeopardise the morals of individual, corruption on the other hand affects in multitude and diverse ways the well being of the whole nation.” [2]

The corroding effects of corruption are multifaceted. This evil in particular spreads and paralysis entire government and public sector operations if left unimpeded. Corruption is as much structurally conditioned as it is a personal-choice driven behaviour. This is why anti-corruption strategies and policies ought to seek to reduce structural opportunities for corruption as well as motivational factors to corrupt and/or to be corrupted. The criminal justice approach in combating corruption divorced from prevention and human development efforts will make a few headlines and will put a few behind the bars but cannot dismantle the economic, cultural and political forces driving a corruption zeal. Similarly, anti-corruption proclamations and mere economic growth cannot, on their own, dismantle a personal choice to get involved in a corrupt
Transaction, be it for survival, greed or mere convenience. Thus, the integration of structural and motivational factors generating corruption requires even stronger and targeted integration of anti-corruption approaches and interventions.[3]

Organised crime and corruption pose a massive security challenge in Africa. They indirectly compromise the welfare and integrity of society through unlawful practices that create victims, while at the same time generating benefits only for criminals. They undermine the rule of law and engender lawlessness, thus creating an environment in which governments seem incapable of providing security for their people. Government officials have themselves been found to be complicit in acts of crime and corruption. Failure to curb this problem only serves to chain the continent to deprivation, weak economic performance, bad governance, social disintegration, poverty, apathy and strife. This poses a threat to the achievement of the developmental objectives envisioned in the New Partnership for Africa’s Development (NEPAD) Programme – the blueprint document that sketches the path towards Africa’s economic growth and development.

It is argued in this paper that NEPAD, which is sanctioned by the African Union (AU), should create a forum to drive a targeted, holistic, programmatic approach towards containing organised crime and corruption in Africa. This approach should aim at developing national capacities to tackle organised crime and corruption effectively. By doing so, countries will be able to foster a stronger regional and wider global response to the challenge. Without this approach, Africa will continue to lag behind and remain the weak link in global efforts to control organised crime and corruption, as is the case with other social ills that afflict the continent.

Africa is affected by various kinds of organised crime, including banditry, the diversion of humanitarian aid and crucial food resources, racketeering, the theft and smuggling of mineral resources, motor vehicle theft and smuggling, trafficking in illegal drugs and small arms, poaching and cattle rustling. Human trafficking is also starting to emerge as an area of concern. These crimes affect all African countries. However, differences in the degree to which countries are affected do, in turn, have a bearing on the level of national prioritisation and coordination between countries in efforts to control these criminal activities. Countries often do not have the same priorities, let alone similar capacities to fight organised crime and corruption. This not only has a direct impact on national capacity to fight organised crime and corruption, but also negatively affects international cooperation. The latter takes place more often and effectively at bilateral level and to a lesser extent at regional level. In order to launch an effective struggle against crime and corruption, capacity will need to be enhanced initially at national level.[4]

Causes of Corruption

The causes of the corruption in the continent are multifaceted and primarily center on greed. Corruption is a global phenomenon but the African continent pays more dearly for this evil act. The lack of basic infrastructure, good education, health care, genuine means of income to sustain your family are amongst some of the factors that triggers corrupt acts. Accountability and transparency is ill developed in the region due to lack of quality leadership. That is a critical factor in the determination of the prevalence of corruption. “The senses of public duty and of national vision are often in which all can benefit is often not present, and may not be shared by all even in some liberal democratic societies”.[5] Corruption is intertwined with politics and it is indeed a symptom of weak political institution.

In Nigeria, Zimbabwe, Democratic Republic of Congo, to name but a few are such countries that are grossly guilty of the causes of corruption. Where miscreant, privilege individuals, illegitimating amass national funds to the detriment of the lager majority of its citizenry; corruption is thus giving birth to. The erosion and abuse of the judiciary and enforcement structures also play a pivotal role in abuse of power by those entrusted with leadership.

Effect on the People

Indeed, corruption is global but the high level corruption in the African continent is mind blowing. In some part of the region, there is barely a meal for the day. Yet there leaders’ leaves gold paved palaces, with bank accounts across the globe. The effect of such misappropriation is a limited national and international investment and ineffective system of administration – government. The citizens are unproductive, living in some cases way below the poverty line. These citizens faces untold hardship, without a better choice, learned to cope with high inflation, increased cost of transport, food stuff, fuel, medicines, lack of clean drinking water, electricity, inaccessible roads etc. In a State or region where there is no stimulation of socio-economic growth, the effect is felt at all levels of life for those at the receiving end of bad governance and such is the unfortunate situation in Zimbabwe were a few enjoys at the expense of the majority.

Corruption is so endemic in Africa that the World Bank estimates that some $1 trillion is paid globally on bribes alone each year. According to the bank, the sums of money embezzled or stolen from the public funds and assets by corrupt officials and the unaccounted volume of fraud within the private sector could exceed the scale of global corruption. It furthered argued that, not only does it obstruct development but it fetters business growth. The bank surveyed nine African countries amongst which are those named above and ranked corruption as the major impediment to their development. It is estimated by the bank that where good governance and corruption control have been firmly established, the long-term economic dividend can be as much as three to fourfold increase in income per capital, together with economic growth of about 4%.[6]

Corruption is bad enough on its own but, what makes it worse is that the proceeds from these corruptive malpractices are spent and kept in banks outside the African continent. Where these illicit proceeds which the World Bank estimates to be in the region of $100 billion to $200 billion every year spent in Africa, it would to an extent create more needed jobs and some kind of infrastructure.

Corruption enriches the few minorities and strangulates economic growth and inadvertently blocks much needed development in the African region. It forestalls in flock of potential international investments, thus underpinning the region in an analogue age. Corruption is a man made disease, it is global in nature, but practices more in Africa by self-serving public office holders. At the expense of those whom they were meant to serve and protect – the private sector whom on the other hand were infested by the disease and thus became magnitude in nature.

The consequences of corruption are invariably felt most by those at the bottom of the economic scale – the poor people who due to their poorness have less means to cushion the negative impact. It is observed that, “Corruption has a strong negative effect on all aspects of society: It distorts the economy, it challenges the rule of law and it undermines the functioning of the political system. It is further observed that “While the effects of corruption may not be felt by the well-off decision-makers of business and politics, widespread corruption has however a direct bearing on the everyday lives of the poorest strata of the society as well”.[7]

African Union Convention

The AU convention on preventing and combating corruption and related offences was adopted by the heads of state at the AU summit held in Maputo on 11 July 2003. The fight against corruption was not specifically introduced at the regional level until June 1998, at a session of the assembly of heads of state and government in Ouagadougou, Burkina Faso. The assembly passed a resolution calling on the secretary general to convene a high-level meeting of experts in cooperation with the African Commission on Human and People’s Rights. These experts were to consider ways of removing obstacles to the enjoyment of economic, social and cultural rights – such as through the fight against corruption impunity – and propose appropriate legislative and other measures for reform. The scene was set for the drafting of a historic convention. Civil society groups, including Transparency International, actively participated in the writing of the first draft of the of the AU convention at expert meetings in Addis Ababa in November 2001 and September 2002.[8] The framework which covers a range of criminal offences, also calls for preventive measures, more serious, meaningful regional co-operation, regional and international legal assistance in the recovery of assets, illicit enrichment in both the public and private sector corruption. This convention is unique in the sense that African heads of government are for the first time taking a pro-active steps in the fight against corruption by a mandatory provision with respect to accountability in all sectors of their economy i.e. transparency in political funding, designated public office holders declaration of assets, restrictions on immunity for public office holders (Article 7), bribery etc. The steps are indeed right steps in the right direction. However, the ratification is yet to attained the require signatories for it to be enforced. Only 21 out of the 53 countries have signed the AU convention but none has ratified it. [9] It is in the interest of the African state to urgently ratify and vigorously pursue and effective mechanism in the eradication of corruption. As Susan Rose argued, high level corruption limits investment and growth and lead to an ineffective government.

Objectives

The African Union under the current leadership of the Nigerian President Olusegun Obasanjo, who succeeded South African president Thabo Mbeki seems poised to institute measures to combat institutional and private sector corruption. To promote foreign investment in Africa, the effect is what we are seeing in Chinese railway and agricultural investment in Africa notably Nigeria, through NEPA (New partnership for Africa’s Development) programme. To promote human rights, peace, security and the alleviation of the living standard of the African people. To promote regional cooperation for the effective implementation of measures adopted in the interest of the continent, such as money laundering, people trafficking, eradication of corruption and related offences. Under the Articles of the convention, the harmonisation and co-operation of policies and legislation amongst the signatory African states for the purposes of eradicating corruption, detection, prevention and punishing is stated as one of its major goals. The goal of socio-economic development is another stated as objectives of the convention. The aim of these objectives is to combat corruption at every level and promote social, economic, political and cultural rights to the enjoyment of growth in the region.[10] The emphasis of the convention is to encourage member states to ‘promote and strengthen the development… of mechanisms required to prevent, detect, punish and eradicate corruption and related offences in Africa and to ensure effectiveness of these measures.’[11] The convention has listed and strengthened laws on corruption and related offences thereby ensuring they are punishable by national legislation. By encouraging and promoting public awareness both national and internationally, the convention has thus enlisted global co-operation in the detection, confiscation, forfeiture of the proceeds of corruption, the repatriation of such proceeds and furthermore, punishment for those involved in the corrupt act.

Offences Constituting Corruption

Transparency International defines corruption “as the abuse of entrusted power for private gain.”[12] It went further in its report, “corruption is considered to include offering, soliciting and accepting bribes. The report points out that embezzlement through mechanisms which include siphoning off funds to non-existent companies and through fake and mispriced transactions is rife throughout Africa.”[13] The convention defined corruption broadly enough as to ensure that corruption or related offences committed both within the common law and civil law jurisdiction would not escape punishment. Under the civil law rule, corruption and embezzlement are offences which are only capable of being committed by holders of public office or involving public funds. By introducing the term “related offences” the convention found a way round that common law rule thus introducing civil law rules. The convention is now able to define corruption as “the acts and practices including related offences proscribed in this convention.”[14]

The convention has clearly and broadly defined corruption enough as to pre-empt any conflicts of interpretation in both the civil and common law jurisdictions. Under this AU convention, the inclusion of ‘related offences’ means those who commits the offence of corruption within official and private sectors in civil law countries cannot escape punishment. As they have thus falling into the armpit of both common and civil law jurisdiction.

However, the provision of the illicit enrichment in the convention has been criticised. In that, the burden of the presumption of innocence in criminal law is somehow shifted from the prosecution. In criminal cases which involve illicit enrichment or unjustified enrichment, the burden of proof usually rest with the prosecution to prove beyond all reasonable doubt that acquired wealth is not justified by earnings. Here, under the convention, the prosecution is not legally required to prove beyond our accustomed reasonable doubt that wealth exceeds income, nor does the prosecution necessarily need to prove that the unjustified income was derived from corruption. It is automatically presumed that unjustified income is a proceed from corrupt source. It is argued that, if implemented, such provisions are likely to face legal challenges, particularly in countries where the presumption of innocence is imbedded in the constitution.[15]

African Union: International Co-operation against Corruption

The African Union has solicited the assistance of the international community in a global war against corruption in the region. The need to render such assistance was promptly recognised by the British government, the World Bank, United Nations, the international and regional business communities.

The British government welcomed the report and responded to the recommendations in the Africa All Party Parliamentary group, titled “The Other Side of The Coin” by acknowledging that corruption and related offences presents a critical obstacle to development in Africa. As such legal framework to combat international bribery, corruption and money laundry were said to be re-enforced. Furthermore, recommendations from the Economic Co-operation and Development (OECD) bribery working group has also been revisited to combat bribery of foreign public officials in international business dealings. The United Nations adopted also adopted a convention on 9 December 2003 against corruption.

African Union: Efforts to Present and Combat Corruption
The African Union has been concerned about the negative effects of corruption and impunity on the political, economic, social and cultural stability of African States and its devastating effects on the economic and social development of the African peoples. It has come to grip with the devastation caused by corruption and acknowledge that corruption undermines accountability and transparency in the management of public affairs as well as socio-economic development on the continent, thus recognizing the need to address the root causes of corruption on the continent. It is convinced of the need to formulate and pursue, as a matter of priority, a common penal policy aimed at protecting the society against corruption, including the adoption of appropriate legislative and adequate preventive measures. The African Union is determined to build partnerships between governments and all segments of civil society, in particular, women, youth, media and the private sector in order to fight the scourge of corruption.[16]

The Convention on Preventing and Combating Corruption has its basis in the African Charter on Human and Peoples Rights as well as other resolutions and declarations of the OAU. These include, the 1990 Declaration of fundamental changes taking place in the World and their Implications for Africa.[17] The adoption of the convention was hailed both in the region and international community as a step in the right direction. Furthermore, accountability and transparency awareness is now a phenomenon welcomed in the region. The need for better governance in Africa cannot be under estimated. Without good governance the effort to achieve economic integration will be futile.

Reference
Conga, Frank. Corruption in Africa. Charleston, USA: Booksurge, 2006
Mbaku, John, M. Institutions and Development in Africa. Trenton, USA: African World Press, 2004
Mbaku, John, M., Corruption in Africa: Causes, Consequences and Clean up Lanham, USA: Lexington, 2007
Olaniya, K, The African Union on Prevention and Combating of Corruption: A Critical Appraisal, African Human Rights Journal, 2004, Vol. 4 No. 1 74-92
Sardan, Jean-Piere, O. D., and Cox, Susan. Everyday Corruption and the State: Citizens and the Public Officials in Africa. London: Zed Books Ltd, 2006Sinjela, M., The African Union takes a legal stand on Corruption,. African yearbook of International Law; 2005 vol. 11, p143-159
[1] http://www.africanreview.org/docs/govern/changes.pdf
[2] Sinjela, M., The African Union takes a legal stand on Corruption,. African yearbook of International Law; vol. 11, p143-159/2005
[3] See Corruption and anti corruption in South Africa.
http://www.unodc.org/pdf/southafrica/southafrica_corruption.pdf
[4]http://www.iss.co.za/index.php?link_id=28&slink_id=1185&link_type=12&slink_type=12&tmpl_id=3
[5] Ibid fn 2
[6] See Lord Chidgey., House of Lord debates, Monday 19 June 2006. On the report of the Africa All Party Parliamentary Group, The other side of the coin: The UK and Corruption in Africa. http://www.theyworkforyou.com/lords/?id=2006-06-19a.585.0&m=100562. Also see, http://en.wikipedia.org/wiki/World_Bank
[7] Ibid fn 2
[8] Ibid
[9] Htt://www.u4.no/helpdesk/helpdesk/queries/query30.cfm
[10] See Article 2 of the convention
[11] See A. Muna, The African Convention against Corruption, in Transparency International (TI), Global and regional reports, p.117
[12] ibid fn 8
[13] ibid
[14] ibid fn 2; also see the preamble of the convention
[15] Ibid fn 9
[16] See p.2 & 3., AFRICAN UNION CONVENTION ON PREVENTING AND COMBATING CORRUPTION http://www.africa union.org/root/AU/Documents/Treaties/Text/Convention%20on%20Combating%20Corruption.pdf
[17] Ibidi fn 1

Female Circumcision: violation of Human Rights in the Niger Delta of Nigeria

2009-07-20T21:48:00.000+01:00

Abstract

The paper argues that female circumcision (FC), often referred to as female genital mutilation (FGM) or female genital cutting (FGC) is a crime under International law. The papers primary focus would be on Benin and Esan ethnic communities of Edo State, which is a part of the Niger Delta area of Nigeria. That the myth is a violation of the fundamental human rights of these women, whether, in her infancy, childhood, adolescence or as a young adult. That the historic assertion which claimed cutting off the female genital help curbs promiscuity and promote female faithfulness to their husbands is a ridiculous, repugnant and repulsive line of thoughts. Thus, every right minded thinking person, group or government, should actively promote awareness of the consequences and harmful effect of female genital mutilation, must see to the abolishment of the act.

Introduction

Edo State, like other States in Nigeria is predominantly male dominated. The desire for continuation of female circumcision under the disguise of cultural and ethnic belief remains widespread, even though the State passed a law against it in 1999 and there is absolutely no legal, moral, cultural and ethnical justification for its continuation. Female circumcision, if you like female genital mutilation is a crime which causes suffering and psychological problems for the victim.
The partial or total cutting away of the external female genitalia has been practiced for centuries in Edo and Esan communities and indeed, in most part of Africa and eventually, due to immigration in Europe, Asia, Scandinavia and America. It is estimated that over a 100 million women worldwide[1] are subjected to the barbaric act of female circumcision in clear violation of the victims’ human rights.
Nigeria became a signatory to the Universal Declaration of Human Rights 1948, in 1960 upon gaining her independence and also a signatory to the African Charters of Human Rights 1961 and 1970. Modern human rights, born in the aftermath of the Second World War and crystallized in the Universal Declaration of Human Rights in 1948, reflect a broader, societal, approach to the complex problem of well-being. Human rights are about the societal preconditions for physical, mental and social well-being.

The end of the Second World War brought about unprecedented changes in global system such includes internationalization of political ideologies such as right and freedom of citizens. All these while, human rights were not seen as health issue, conscious efforts was only made in 1995 at the National Council of International Health (NCIH) conference where professional in health, law and social science met at Columbia University, the land mark of this historical event was the recognition of fundamental human rights as health issue. We can look at it from economic angle and from health issue. The core right is the right to life which has to do with survival. Since health has to do with harmony between mind and body to ward off death, then the extension of right to life as a health issue becomes imperative.[2]

Key document that have sprung up at international convention on civil and political rights, the international covenant on economic, social and cultural rights, the convention on the elimination of all forms of discrimination against women. The covenant on the rights of the children, and lastly the covenant dealing with slavery in all these, there are provision particularly touching on human health which female circumcision borders on. The right to health as articulation in these instruments has since become norms of civilized states. Upon careful examination of Nigeria constitutions of 1979, 1985, 1989, 1995, and 1999, health rights feature prominently. Thus, the constitution is the most important for providing protection for women. Although the applicable provisions are indirect, for example there are provision in chapter II on the equality of the sexes and the prohibition of discrimination in all forms.

It is clear that the Nigerian State, enshrined in its Constitution of 1999 in chapter 4, the protection of fundamental Human Rights in all it facet. Thus the rights of children and women are protected. Unfortunately, the provisions that directly address the rights of female born into these primitive beliefs that compelled them against their will to be violently violated by cutting off their sexual organs, whether on cultural or ethnical ground, are not adequately protected by law. In that, one of the rights that are denied to the Nigerian woman is the right to health, through female circumcision because section (6) of the Constitution prevent the courts from looking into whether or not the fundamental objectives and directive principles of state policy have been implemented if states: " The judicial powers rested in accordance with the fore going provision of this section . . . shall not, except as otherwise provided by this constitution, extend to any issue or question as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive principles of state policy set out in Chapter II of this constitution."

Female circumcision has been condemned as cruel, discriminatory and degrading by a long series of international instruments, declarations, resolutions, pronouncements and recommendations. Nothing turns on the detail of these. Their tenor may be illustrated by a recent report of the United Nations Special Rapporteur on violence against women Integration of the Human Rights of Women and the Gender Perspective E/CN.4/2002/83, 31 January 2002, introduction, para 6: 'Nevertheless, many of the practices enumerated in the next section are unconscionable and challenge the very concept of universal human rights. Many of them involve “severe pain and suffering” and may be considered “torture like” in their manifestation. Others such as property and marital rights are inherently unequal and blatantly challenge the international imperatives towards equality. The right to be free from torture is considered by many scholars to be jus cogens, a norm of international law that cannot be derogated from by nation States. So fundamental is the right to be free from torture that, along with the right to be free from genocide, it is seen as a norm that binds all nation States, whether or not they have signed any international Convention or document. Therefore those cultural practices that involve “severe pain and suffering” for the woman or the girl child, those that do not respect the physical integrity of the female body, must receive maximum international scrutiny and agitation. It is imperative that practices such as female genital mutilation, honour killings, Sati or any other form of cultural practice that brutalizes the female body receive international attention, and international leverage should be used to ensure that these practices are curtailed and eliminated as quickly as possible.'

In some countries, including the United Kingdom, effect is given to this international consensus by the prohibition of female circumcision on pain of severe criminal sanctions.[3]

What is Female Circumcision?

Female circumcision is a process where, base on traditional or cultural beliefs, the female clitoris, which is a very sensitive organ and part or the entire part of the external genitalia are cut off in other to reduce the woman’s supposedly sexual overdrive. The barbaric act, according to some observers are often performed without anaesthetic under poor conditions by untrained practitioners, native herbalist or older women with little or no knowledge of human anatomy or medicine, using unsterilized knives, razor blades or even broken bottles. It is claimed that, the mutilation or cutting off of these external genitals guarantees the woman’s faithfulness to her husband and promote chastity in women. The age at which the clitoris and other part of her external genitalia are totally cut off varies in various communities. In the Esan and Benin ethnic communities, where female circumcision does take place, expect opinions is that it predominantly performed during infancy.

In some very traditional communities, if a deceased woman is discovered to have never had the procedure; it may be performed on her before burial. In some communities it is performed on pregnant women during the birthing process and accounts for much of the high morbidity and mortality rates. It varies among ethnic groups. Highly respected women in the community, including traditional birth attendants (TBAs), local barbers and medical doctors and health workers usually perform the procedure. Unless performed in medical facilities, it is generally performed without the use of anaesthesia.[4] The harmful health effect, present and aftermath of female circumcision cannot be over emphasised, yet the practitioners are less concern of the grave risk their actions possess to their female victims because of a false, ancestral or traditional belief.

Generations of supporters of the barbaric act have advanced wide range of arguments as to why female circumcision constitutes an important part of their cultural and ethnical way of life. For the tortured infants, toddlers, adolescents, young adult or matured woman, the instruction and mutilation of their body is an unwelcome rite of passage to womanhood and clear violation their fundamental human rights.

According to World Health Organisation these include severe pain, shock, haemorrhage, urine retention, ulceration of the genital region and injury to adjacent tissue. Haemorrhage and infection can cause death. More recently, concern has arisen about possible transmission of the human immunodeficiency virus (HIV) due to the use of one instrument in multiple operations, but this has not been the subject of detailed research.[5] Long-term consequences include cysts and abscesses, keloid scar formation, damage to the urethra resulting in urinary incontinence, dyspareunia (painful sexual intercourse) and sexual dysfunction and difficulties with childbirth.[6] Psychosexual and psychological health: Genital mutilation may leave a lasting mark on the life and mind of the woman who has undergone it. In the longer term, women may suffer feelings of incompleteness, anxiety and depression.[7] In these Esan and Edo communities, the practitioners are oblivious to the immediate and long term health consequences of their actions. Majority of these practitioners are lay persons who use a variety of harsh methods to violate the rights of these females by invading and mutilating their clitoris and other external organs, with razor blades, knives (most cases unsterilized).

The origin of Female Circumcision

The origin of female circumcision remains highly speculative. According to some experts it is an ageless act which is claimed to have originated from Africa. That it might have been practice as far back as ancient Egypt as a sign of distinction, while others hypothesize origins in ancient Greece, Rome, pre-Islamic Arabia and Tsarist Russia. Up until the mid-20th century, some physicians in the United States wrongly performed clitoridectomies for a variety of clinically unsound reasons.[8] An alternative supposition on the question of its origin identifies Islam as the primary source. Female circumcision is frequently described as an "age-old Muslim ritual," when in fact it predates Islam and is even believed to be pre-Judaic. There is no mention of it in the Koran, and only a brief mention in the authentic hadiths, which states: "A woman used to perform circumcision in Medina. The Prophet said to her: 'do not cut severely, as that is better for a woman and more desirable for a husband.’ Because of this still debated hadz'th, some scholars of the Shari school of Islam, found mostly in East Africa, consider female circumcision obligatory. 'The Hanafi and most other schools maintain it is merely recommended, not essential.[9] However, some expert opinion suggests that the act of female circumcision is not pertinent to Islam alone. Thus, the custom cuts across religions whether Christian, Islam, Jews and any other religion. Hanny Lightfoot-Klein, defined it as, dating back to antiquity, that its origins are obscured, ‘excision practices can be assumed to date back thousands of years, conceivably to the early beginning of mankind.’

Why practice Female Circumcision?

It is believed, from time immemorial, in certain cultures that it facilitates a rightful passage to womanhood, essentially a good credential for marriage; thus, bring honour to her family and community. A conformity to the norms of tradition, the historic assertion that circumcising the female help curbs promiscuity, promote female faithfulness to their husbands and affords her recognition and economic security through marriage and childbearing and also, that the cutting off of the clitoris and external genitals has hygienic benefits.
Conference on women in 1995 in the sub-commission on the presentation of discrimination and protection of minorities adopted in which it appealed to all states "to achieve the total elimination of female genital mutilation.

Types of Female Circumcision

There are different types of female circumcision; type 1, is the clitoridectomy, part or the entire clitoris is removed, while in type 2 (often referred to as excision), both the clitoris and the labia minora are removed. Type 3 (Infibulation) is the most severe: After excision of the clitoris and the labia minora, the labia majora are cut or scraped away to create raw surfaces, which are held in contact until they heal, either by stitching the edges of the wound or by tying the legs together. As the wounds heal, scar tissue joins the labia and covers the urethra and most of the vaginal orifice, leaving an opening that may be as small as a matchstick for the passage of urine and menstrual blood.[10] Infibulation are the most practiced in Nigeria. Type IV is practiced to a much lesser extent. The form practiced varies by ethnic group and geographical location. It crosses the numerous population groups and is a part of the many cultures, traditions and customs that exist in Nigeria. It crosses the lines of various religious groups. It is found among Christians, Muslims and Animists alike.[11]

There is no accurate figure as to the number of female in Benin and Esan communities, or in the world at large who have undergone each type of circumcision. However, World Health Organization study reported that an estimated 30.6million women and girls, or about 60 percent of the total population of Nigeria, have undergone genital mutilation. A 1996 United Nations Development Programme study put the figure at 32.7 million[12] and estimate it to be between 100 and 140 million female worldwide.[13]

At its thirteenth session in 1976, the Committee on the rights of child expressed its concern at the continuation of the practice of female genital mutilation, and the insufficient measure being taken by the government to address the practice, although clitoridectomy appears to be by far the most common procedure. It is estimated that about 15% of all circumcised women have been infibulated, although an estimated 80-90% of all circumcisions in Djibouti, Somalia and the Sudan are of this type.[14]

Incidence: With over 250 ethnic groups and an estimated population of 120 million, a national estimate of this practice is very difficult. The most recent survey is a 1999 Demographic and Health Survey of 8,205 women nationally. This survey estimates that 25.1 percent of the women of Nigeria have undergone one of these procedures. According to a 1997 World Health Organization (WHO) study, an estimated 30,625 million women and girls, or about 60 percent of the nation's total female population, have undergone one of these forms. A 1996 United Nations Development Systems study reported a similar number of 32.7 million Nigerian women affected. According to a Nigerian Non-Governmental Organization (NGO) Coalition study, 33 percent of all households practice one of these forms. However, according to some Nigerian experts in the field, the actual incidence may be much higher than these figures. Leaders of the Nigerian National Committee (also the Inter-African Committee of Nigeria on Harmful Traditional Practices Affecting the Health of Women and Children [IAC]) have been conducting a state by state study of the practice. This 1997 study by the Centre for Gender and Social Policy Studies of Obafemi Awolowo University in Ile-Ife was contracted in 1996 by a number of organizations including WHO, the United Nations Children's Fund (UNICEF), the United Nations Development Program (UNDP), the United Nations Population Fund (UNFPA), the Nigerian Federal Ministry of Women's Affairs and the Nigerian Federal Health Ministry. The study covered 148,000 women and girls from 31 community samples nationwide. The results from fragmented data, according to IAC Nigeria, show the following prevalence and type in the following states in Nigeria, Abia (no study); Adamawa (60-70 percent, Type IV); Akwa Ibom (65-75 percent, Type II); Anambra (40-60 percent, Type II); Bauchi (50-60 percent, Type IV); Benue (90-100 percent, Type II); Borno (10-90 percent, Types I, III and IV); Cross River (no study); Delta (80-90 percent, Type II); Edo (30-40 percent, Type II); Enugu (no study); Imo (40-50 percent, Type II); Jigawa (60-70 percent, Type IV); Kaduna (50-70 percent, Type IV); Katsina (no study); Kano (no study); Kebbi (90-100 percent, Type IV); Kogi (one percent, Type IV); Kwara (60-70 percent, Types I and II); Lagos (20-30 percent, Type I); Niger (no study); Ogun (35-45 percent, Types I and II); Ondo (90-98 percent, Type II); Osun (80-90 percent, Type I); Oyo (60-70 percent, Type I); Plateau (30-90 percent, Types I and IV); Rivers (60-70 percent, Types I and II); Sokoto (no study); Taraba (no study); Yobe (0-1 percent, Type IV); Fct Abuja (no study). While all three forms occur throughout the country, Type III, the most severe form, has a higher incidence in the northern states. Type II and Type I are more predominant in the south. Of the six largest ethnic groups, the Yoruba, Hausa, Fulani, Ibo, Ijaw and Kanuri, only the Fulani do not practice any form. The Yoruba practice mainly Type II and Type I. The Hausa and Kanuri practice Type III. The Ibo and Ijaw, depending upon the local community, practice any one of the three forms.[15]

Justification

The Women's Centre for Peace and Development (WOPED) has concluded that Nigerians, Benin and Esan communities alike, continue this practice out of adherence to a cultural dictate that uncircumcised women are promiscuous, unclean, unmarriageable, physically undesirable and/or potential health risks to themselves and their children, especially during childbirth. One traditional belief is that if a male child's head touches the clitoris during childbirth, the child will die.

Outreach

The campaign against Female circumcision has long been waged, for the most part, by international, national and non-governmental organizations. In 1950s and 1960s, African activists and medical practitioners brought the health consequences of female circumcision to the attention of international organizations such as the United Nations and the World Health Organization (WHO). However, it was not until 1979 that any formal policy statement was made: A seminar organized by WHO in Khartoum to address traditional practices affecting the health of women and children issued recommendations that governments work to eliminate the practice.
During the following decade, the widespread silence surrounding female circumcision was broken. After African women's organizations met in Dakar, Senegal, in 1984 to discuss female circumcision and other detrimental cultural practices, the Inter African Committee against Harmful Traditional Practices (IAC) was formed. With national committees in more than 20 countries, the IAC has been important in bringing the harmful effects of female circumcision to the attention of African governments. In addition, other African women's networks and organizations that had focused primarily on such issues as reproductive health, women's rights and legal justice became involved in working against the practice. Such groups as Mandalaeo Ya Wanawake in Kenya, NOW in Nigeria and New Woman in Egypt now include the elimination of female circumcision among their goals. In the Platform of the Fourth World Conference on Women, held in Beijing in 1995, female genital mutilation was cited as both a threat to women's reproductive health and a violation of their human rights. In addition to making general recommendations, the Platform specifically called on governments to "enact and enforce legislation against the perpetrators of practices and acts of violence against women, such as female genital mutilation...." Notably, the drive to include language specifically condemning female genital mutilation in the Platform was led by Africans.[16]

Inter African Committee in Nigeria holds meetings and programs in both urban and rural communities throughout the country to inform the public about this subject. It uses videos, booklets and the mass media to reach school age children. In 1997, outreach programs on the dangers of this practice were intensified. In the states of Osun and Bayelsa, nurses and midwives were trained about the harmful health effects and how to select, train and supervise TBAs. There was extensive community outreach to men, women, school children and health workers. Anatomical models, films and posters were used. Posters were distributed in villages. Also actively campaigning against this practice are the National Association of Nigerian Nurses and Midwives, the Nigerian Medical Women's Association and the Nigerian Medical Association. These three groups in particular are against the legitimization of this practice as a medical necessity for females and are working to inform all Nigerian health practitioners about the harmful effects of the practice. The National Association of Nigerian Nurses and Midwives created a national information package about the harmful effects of the various procedures. WHO, UNDP, DFID of Great Britain and Daneco of Sweden are actively funding Nigerian NGOs in addressing this practice. International organizations have adopted plans of action to eradicate these practices in Nigeria.

World Health Organisation (WHO) has a three-year short-term plan (1996-1998); an eight-year medium-term plan (1999-2006); and a nine-year long-term plan to eventually eliminate this practice from Nigeria and the rest of Africa. Nurses and paediatricians have long campaigned against this practice. They have campaigned nationwide starting with national workshops in Lagos. Trainers were trained who in turn conducted informational activities about this practice at the state and local community levels. A variety of methods were used to get the message across as to the harmful effects. These included dramas, community mobilizations, national television talk shows, radio broadcasts, articles in newspapers, etc. The once taboo subject is now discussed in the open. The government has publicly opposed this practice. Government officials have voiced their support for the campaign against female circumcision. Both the Federal Health Ministry and the Federal Ministry of Women's Affairs support the nationwide study on this issue. In conjunction with a number of House State Assembly members, medical workers, attorneys and NGO representatives, WOPED organized a national policy symposium on female circumcision in May 2000. The symposium revealed that over the past decade both government ministries and NGOs have been active and mutually collaborative in studying how to end this practice. However, little has been accomplished beyond the recommendation stage. Nigeria was one of five countries that sponsored a resolution at the forty-sixth World Health Assembly calling for eradication of harmful traditional practices, including female circumcision. [17]
Most NGOs working on this issue claim that helping traditional communities change their cultural folklore is necessary to end this practice. Proverbs, songs, theatrical and dance performances and other cultural activities have reinforced this practice for centuries. The NGOs also point out that efforts to end the practice will fail unless Nigerian men learn that uncircumcised women are marriageable, will not be promiscuous and are not poor risks as mothers. DFID of Great Britain is working with IAC/Nigeria on a pilot project with ten excisors. The excisors were educated about the criminalization of FGM/FGC in their state. DFID then purchased deep freezers and ice cream makers for each excisor to start her own business in her community. In each case, the excisor has been earning enough to replace her former practice of FGM/FGC as her source of income. When families have brought their daughters to them to be circumcised, they are refusing to refer them to others still practicing and have even threatened to bring in the authorities if the families try to pursue the operation. The United States Agency for International Development (USAID) is working with members of the Women's Caucus of the National Assembly in addressing women's health issues, including this problem. The Calvary Foundation based in Enugu State was awarded a grant of US$20,000 from the U.S. Embassy's Democracy and Human Rights Fund to continue its campaign to ban this practice in five south eastern states.[18]

However, where this is narrowed to Edo State in the Niger-Delta area of Nigeria, it is not surprising that there have been different play groups involved in the campaign against female circumcision. Amongst these groups oppose to female circumcision is the Provost, College of Medical Sciences, University of Benin, Prof. Friday Okonofua, who sited various ills associated with female circumcision, in a workshop held in Benin City, Edo State. The Project Coordinator of Women's Rights Watch Nigeria, Mrs Nogi Imoukhuede also drew attention to the human rights perspective ‘female circumcision, as a violation of women's rights’. Another feminine critique of the practice, the chair of the Senate Committee on Women Affairs and Youth Development, Senator Daisy Ehanire-Danjuma said research had shown that female circumcision was not a panacea for promiscuity. She emphasis the fact that the act was a cruelty by man against his fellow human-being, “Female Genital Mutilation and Violence against Women”, and that, contrary to some misguided arguments advanced by the perpetrators and supporters of the heinous, that the beliefs has nothing to do with hygiene or passage to womanhood but instead, complications could arise from the practise, which she described as injurious to the health of women. She listed such complications to include excessive bleeding, urinary problems, difficult menstruation, vaginal infections and infertility.[19] Ehanire-Danjuma added that female circumcision was a harmful practise based on misguided traditional beliefs. The Senator said that it was erroneous to believe that circumcising a lady would stop her from being promiscuous. That primitive, historic assertion has thus, according to some observer, put over 2 million lives at the risk annually. [20] That represents about 50% of Edo State communities.
There is no federal law banning female circumcision in Nigeria. Opponents of this practice rely on Section 34(1)(a) 1999 Constitution of the Federal Republic of Nigeria that states, "no person shall be subjected to torture or inhuman or degrading treatment," as the basis for banning the practice nationwide.[21] Edo State passed a law prohibiting the practise (Under section (2) Edo State Female Genital Mutilation (Prohibition) Law 1999). Section 4, lists the principal offenders; that those parents, guardian or female person who offers a child or herself and the performer of female circumcision are jointly and severally in breach of the law. It therefore follows that, consent is not a defence and a plea of cultural and ethnic values would also not form a basis for defence (s.3). Persons convicted under the law are subject to a 1000 Naira (US$10) fine and imprisonment of six months. Opponents of the practice applaud such laws however, criticized the small fine and lack of real willingness of enforcement. Female circumcision cannot be justified by arguments that suggest that it reduces sexual activity in women and prevents adverse outcomes of sexuality.
It is clear from the local, national and international level that efforts are being made to educate the performer of this barbaric act of female circumcision. But except these efforts are aggressively translated at grass root level by all educational means available, both perpetrators and those who aid, abet, counsel or procure the performance are severely punished by a combination of fine, long prison terms and public shaming, offenders may continue to violate the fundamental rights of the female who, though has a voice and choice but silenced and denied by misguided traditional rite.
It is clear from expert research that brutalising the female body in other to be the property of has husband - that is if she survives, invading her privacy and cutting off her external sexual organs, thus unlawfully reducing or denying her satisfaction, indicates that, ‘giving a choice and empower to defend that choice’[22] would rather not allow their circumcision.
Therefore those cultural practices that involve “severe pain and suffering” for the woman or the girl child, those that do not respect the physical integrity of the female body, must receive maximum international scrutiny and agitation. It is imperative that practices such as female circumcision, or any other form of cultural practice that brutalizes the female body receive international attention and condemnation, and international leverage should be used to ensure that these practices are curtailed and eliminated as quickly as possible.

Conclusion

Edo State government needs to start the process of revisiting this draconian act by proactively assisting the various partners to the elimination of female circumcision, to imbibe the age old law of nature that says when a custom is repugnant to Natural Justice, Equity and Good conscience, such a custom or tradition of female circumcision (FC) as in this case should be extinguished and discontinued. It is hoped that this paper will also serve as a good source of enlightenment for the victims of female circumcision and that, it would enhance their ability to appreciate what remedies they would have in the law as a fundamental Human right enshrined in the constitution of the Federal republic of Nigeria. Furthermore, to serve as a beginning of the healing process psychologically, emotionally and otherwise for the victims of such acts and knowing their rights would deter other from further perpetrating this barbaric custom and tradition that should be given a decent burial.

References

Abusharaf, R.M. (2006) Female circumcision/moral and ethical aspects/Africa (University of Pennsylvania press)

Akindele, F. (1990) Dangers in Female Circumcision: Home Doctor, No. 24, (St Publishers Ltd., Lagos, Pp. 29-31).

Barendt, E. (1985) Freedom of Speech. (Oxford: Clarendon Press).
Ebomoyi, E. (1987) Prevalence of female circumcision in two Nigerian communities. (Journal: Sex Roles. Springer Netherlands, Vol 17, Issue 3-4).
Evans, M and Murray, R. Ed (2001) Documents of the African Commission on Human and Peoples’ Rights: (Oxford: Hart Publishing).
Larsen, U., Okonofua, F.E., Oronsaye, F., Snow, R.C., and Slanger, T.E. (2002) The association between female genital cutting and correlates of sexual and gynaecological morbidity in Edo State, Nigeria. (BJOG: An International Journal of Obstetrics and Gynaecology. Vol 109 Issue 10 Pp. 1089-1096).
Lightfoot-Klein, H. (1989) Prisoners of ritual: An odyssey into female genital circumcision in Africa. (Haworth press).
Mann, J. (1999) Human experimentation in medicine (London: Routledge)
O’Boyle, M. Harris, DJ and Warbrick, C. (1995) Law of the European Convention on Human Rights. (London: Butterworth).
Pietila, H and Vickers, J. (1996) Making Women Matter: The Role of the United Nations. (3rd ed. London: Zed Books Ltd).
Watson, M.A. (2005) Female circumcision from Africa to the Americas: Slavery to present. (The Social Science Journal, Vol. 42, Issue 3, Pp.421-437).
[1] BBC news edition: Female genital mutilation. http://news.bbc.co.uk/2/hi/health/medical_notes/241221.stm visited 05/01/2008
[2] Jimoh, R. Female Genital Mutilation: Violation of Women’s Human Rights in Nigeria. Center for Global Justice – Centro Para La Justicia Global http://www.globaljusticecenter.org/papers2005/jimoh_eng.htm visited 26/12/2007
[3] See Prohibition of Female Circumcision Act 1985.
[4] Ibid.
[5] World Health Organisation: Female Genital Mutilation.
http://www.who.int/mediacentre/factsheets/fs241/en/ visited 27/12/2007

[6] ibid
[7] ibid
[8] See the National Women’s Health Information Centre, U.S. Department of Health & Human Services. www.4woman.gov/fag/fgc.htm. Visited 27/12/2007
[9] Ibid 2, para 1
[10] Althaus, F.A. Female Circumcision: Rite of Passage or Violation of Rights. (Guttmacher: International family planning perspectives. Volume 23, Number 3, September 1997). http://www.guttmacher.org/pubs/journals/2313097.html
[11] Ibid. 2
[12] Ibid.
[13] Ibid. see note 3
[14] Ibid. 2
[15] Ibid. 2
[16] Ibid. 9
[17] Ibid.2
[18] Ibid.
[19] Imoukhuede, N. Female Genital Mutilation (FGM) – A crime in Edo State. A key note during a one day workshop on FGM and Violence against women organised by the Chair, Senate Committee on women affairs and youth – 19 July, 2004, Benin City, Edo State, Nigeria. http://www.rufarm.kabissa.org.artcles/fgm.htm Visited 27/12/2007
[20] Okonofua, F.E., Larsen, U., Oronsaye, F., Snow, R.C., Slanger, T.E. (2002) The association between female genital cutting and correlates of sexual and gynaecological morbidity in Edo State, Nigeria. BJOG: An International Journal of Obstetrics and Gynaecology 109 (10), 1089–1096.
[21] Constitution of the Federal Republic of Nigeria.
[22] Mukoro, U. J., (2004) A survey on the Psychosexual Implications of Female Genital Mutilation on Urhobo Women of the Niger Delta Communities of Nigeria. (J. Hum. Ecol., 16(2):147-150)

President Obama's visit to Ghana: A challenge for a fresh course

2009-07-20T20:39:00.001+01:00

The importance of Barack Obama’s historic visit to Ghana, Sub-Sahara Africa as oppose to Kenya his ancestral home, where there still lies political turmoil after the electoral malpractices that resulted in a marriage of convenient, between the aging, despotic President Mwai Kibaki and Prime Minister Raila Odinga, on the other hand Nigeria, the self proclaim ‘giant of Africa’ where over 70% of the citizens are below international poverty line and far below parity on health care delivery, and Zimbabwe where Mr Robert Mugabe leave in affluence and his people leaves in abject poverty, dying of malnutrition and cholera, speaks of Mr Obama’s values. Those values that brought him from obscurity, to a relatively unknown junior senator from Illinois Chicago, through the rigors’ of serial campaigns for the United States Democratic party ticket, election that highlighted the quintessence of a democratic process, to the most powerful office on planet earth – President of the United States of America. Those values that encompass the very essence of respect for human rights and the rule of law, values that appreciate sustainable democratic development, governance by consent and not by cohesions. Leaders that their primary thoughts and discharged duties are to those they govern, not manipulation of the electoral and legislative system, turning national treasury into a private account, indiscriminating enlarging their bank accounts with national wealth and blaming colonialism for their national woes. In the words of the Prime minister of Kenya Raila Odinga "We should stop blaming colonialism for our under-development. We really need to address issues of governance, because I believe it is the mediocrity with which Africa has been governed that is responsible for our backwardness today" (BBC live news channel July 11, 2009).

President Barack Hussain Obama, choose to side stepped sentiments by not making his father’s birth place, Kenya his first point of call. When, as the first black commander in chief of USA, visited sub-Sahara African soil. Ghana was his first point of call, a historic visit of gargantuan proportion. Why Ghana? One does not need a magnifying lens for Sub Sahara Africa to see the obvious. Ghana from the second coming of Jerry Rawlings, further to formal President John Kufuor, President John Atta Mill who succeeded Mr. Kufuor, chooses to embrace good governance in contrast to the aforementioned countries, Kenya and Nigeria to mention but a few. Ghana has distinguished itself with enviable strong democratic credentials. According to Peter baker of New York Times, May 17, 2009 referring then to the proposed visit, he stated that Ghana “as a model for governance, Mr. Obama’s advisers concluded that Ghana offered an opportunity to promote important values even in a short visit.,” By that historic visit, President Obama chooses to send a clear, unequivocal message of those important values to those that governs the states of Africa. Barack Obama, the first American black president told his audience, “Africa doesn't need strongmen, it needs strong institutions. No person wants to live in a society where the rule of law gives way to the rule of brutality and bribery that is not democracy that is tyranny" (extract from CNN live coverage July 11, 2009). Africa does not need rulers, we need leaders, that can us develop strong democratic institutions, dynamic, vibrant institutions that allows growth and investment to flourish, that can deliver justice and equality. Achieving those will definitely be the road map to the eradication of poverty, bribery at police check points and all other establishments, thus ensuring security for life and properties. That pursuit can only be realised by good, sound governance!

President Obama’s message to Africa leaders from the Ghanaian Parliament could not be clearer. That his administration will be a willing partner with any African country that evidently can demonstrate good sound governance. What audacity? Oh yes, he can! His record way before he became US president attest that Barack Obama is a man that patently exhibit good values, led by examples; hence he was the first African American president of Harvard Law Review, elected by the people (not bought, rigid or intimidated votes) to the US Senate by the largest margin in Illinois history. Values that saw him listed in 1993 by Crain’s Chicago Business as “40 under forty” power to be. Values that made him co-sponsors of such Bills as “Federal Funding Accountancy and Transparency Act in 2006 (Coburn – Obama Transparency Act), in 2007, Honest Leadership and Open government Act, with Senator Feingold, which was signed into law in Sept 2007. A man, who in his first few days in the Oval office as the 44th American President reduced the secrecy given to presidential records, Should I continue? I guess not! I cannot fathom the lack of sincerity on the part of our African chieftains for transparency and accountability. Why are leadership qualities, good governance so distant from our rulers?

The US President told his audience that "Development depends upon good governance that is the ingredient which has been missing in far too many places, for far too long and that is a responsibility that can only be met by Africans." It is therefore paramount for African States, Nigeria in particular, to actualise the importance of good governance, as it is the cream, vital for development. To, have the audacity to shun corruption and to develop human capacity. Honestly tackle the mayhem of brain drains, engineer physical material requirements of national growth. Our people, our professional are fleeing our countries in drove for, not necessary greener pasture, but from intimidation, lack of opportunities, good facilities such as health care, public transport, education and threat to life and properties. We can and must keep the brains at home, not lose them to our competitors; other countries that are already far advance than ours!

We do not need President Obama, to tell us that our problems can only be solved by us. No, not at all, they were created by us, - greed! So let us fix it and fix it now, we have the capability to, we can solve them. First by shunning corrupt practises, taking reasonable steps to avoid conflicts within or outside of our borders and adapting conflict resolution practises, instead of perpetuating them for our selfish interest, whether for political reasons, land dispute or otherwise, investing in meaningful health care, education programmes and social welfare.
Corruption was giving birth to by greed. Corruption is intrinsically so imbedded in our way of life that the only reason for most people to seek elected office is for immediate gateway to riches. President Obama, so eloquently lectured us to the evil of corruption. The only reward from corruption, it hinders progress. The African states are burdened primarily by diseases, conflicts, lack of foresight and above all corruption. To me, his message was crafted specifically for the Nigerian hierarchy. Amongst others, a major significance of that visit to Ghana is global attention, in terms of trade and tourism; undoubtedly, there will be further influx of tourism and foreign investment into that country. Surely one does not have to be an economist to know what impact such investments would have on society. Every country needs that!

President Obama’s perspicacity was clearly obvious, simple clear statement of intent as to his desire for Africa. The question now, would our African rulers (exception to Ghana; they have leaders) mend their ways? Would Nigeria, amongst other challenges, sincerely address the disparity in the Niger Delta for the sake of justice and equity? African States and indeed Nigeria, that are guilty of bad governance should not waste time analysing how Mr Obama’s visit to Ghana has slighted them, but rather, wake up to the challenge of a fresh course, to steer Nigeria on the right course of a truly recognisable greatness, to be Africa’s flagship in shaping the 21st Century, only then would we earn the desired podium of being ‘giant of Africa’, until then, let’s stop embarrassing ourselves. Yes we can!