Nigeria and The International Criminal Court By May Agbamuche-Mbu

In the last few weeks the International Criminal Court (ICC) has been in the news with regards to the spate of electoral violence rampaging across the country. With just a few days to the Presidential elections alarm bells are ringing loud and clear, as Nigerians are indeed sincerely anxious about the style of electioneering we have witnessed in recent times. To be honest the country has ground to a complete halt in a manner that is most unsettling yet our political gladiators continue to fight tooth and nail on all sides, apparently oblivious to the cry that they temper their ‘do our die’ stance with caution and have mercy on us all.

The International Criminal Court, an inter-governmental organisation based in the Hague has been widely known for prosecuting heinous crimes against humanity. The international community decided that the seeming impunity of the perpetrators of such atrocities as were witnessed during the Holocaust, South African apartheid and the Rwandan Civil war for instance was wholly unacceptable. This eventually resulted in the signing of the Rome Treaty on 17 July 1998, which led to the formation of the Permanent International Court, which later became the International Criminal Court. It is therefore the court of last resort for the prosecution of genocide, war crimes and crimes against humanity. Article 1 of the Rome statute establishes the International Criminal Court which states that an International Criminal Court (“the Court”) is hereby established and it shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in its Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of the Statute. Article 5 of the Statute further confers on the ICC jurisdiction over the most serious crimes of international concern which include (a) The crime of genocide (b) Crimes against humanity (c) War crimes (d) The crime of aggression.

The ICC’s sudden interest in conducting investigations within the country at this point in time is no doubt to do with election violence which falls within its jurisdiction. Election violence has been defined as “any random or organised act to intimidate, physically harm, blackmail, or abuse a political stakeholder in seeking to determine, delay, or to otherwise influence an electoral process,” and includes “threats, verbal intimidation, hate speech, disinformation, physical assault, forced ‘protection’, blackmail, destruction of property, or assassination.” It also affects the right to participate, including the right to vote in elections, which is well established as human right under both national and international laws, including the African Charter on Human and Peoples’ Rights and the Universal Declaration of Human Rights. The ICC has successfully prosecuted and charged individuals in different countries for crimes against humanity.

In recent times, cases have been brought before the ICC for crimes committed in Darfur, Sudan, the Central African Republic, Cote d’Ivoire and Libya amongst others.
Nigeria has been a State party to the Rome Statute of the ICC since 27 September 2001 therefore, the ICC has jurisdiction over Rome Statute crimes (genocide, war crimes and crimes against humanity) that have been committed in the territory of Nigeria or by Nigerian nationals. The preliminary examination on Nigeria being carried out by the ICC Office of the Prosecutor (OTP) follows the OTP’s determination that there is reasonable basis to believe that crimes against humanity have been committed in Nigeria.

Not surprisingly the ICC has quiet rightly through its Prosecutor Fatou Bensouda in February and again this month warned against election violence. She is quoted as saying that “at a time when abhorrent levels of violence already plague parts of the country, I recall that the International Criminal Court has jurisdiction over Rome Statute crimes committed on the territory of Nigeria.” She asserted that “any person who incites or engages in acts of violence in the context of the upcoming elections or otherwise – including by ordering, inciting, encouraging or contributing to the commission of crimes that fall within ICC’s jurisdiction – is liable to prosecution; either by Nigerian Courts or by the ICC.  She stated unequivocally that “no one should doubt my office’s resolve to prosecute individuals responsible for the commission of ICC crimes, whenever necessary.” She concluded by observing that “the conduct and outcome of elections in Nigeria, free from violence, will not only prevent further instability in the country but will also send a clear message that electoral competition does not have to result in violence and crimes that shock the conscience of humanity.”

This statement was fuelled by the observation that “electoral competition, when gone astray, can give rise to violence and in the worst case scenarios, even trigger the commission of mass crimes that shock the conscience of humanity.” It violates the rights to life, safety and security of the person and to the democratic participation all, recognised and guaranteed under our Constitution. The ICC advised presidential candidates and political leaders in the country rather to strive to consolidate the peace pact they signed committing themselves, their parties and supporters to refrain from violent acts during the election.

The ICC’s concern over electoral violence is not misplaced as there have been several incidences of such violence by supporters of the two major political parties. According to a report by the Nigerian Human Rights Commission in the past 50 days, 61 incidences of election violence occurred in 22 states with 58 people killed. The incidences of violence, the Commission said, were carried out in all the six geopolitical zones in Nigeria. The Commission stated that from the information it received and analysed Lagos, Kaduna and Rivers States present the most worrying trends. The much publicised peace pact between President Goodluck Jonathan and Major General Muhammadu Buhari to undertake and support peaceful campaigns has not reduced the scale of violence between supporters of both parties. Just last Wednesday 18th March guns, broken bottles and knives were freely used in Lagos against all-comers, with portentous text messages such as ‘Mushin-Idi Oro on fire, please stay away! gunshots and riots —reason yet unconfirmed’ also doing the rounds. This sadly is what our country has been reduced to, all in the name of elections.

Both major political parties have been guilty of hate speech right across the broad spectrum of the print, electronic and social media. Hate speech I must add includes (a) all dissemination of ideas based on racial or ethnic superiority or hatred, by whatever means; (b) incitement to hatred, contempt of or discrimination against members of a group on grounds of their race, colour, descent, or national or ethnic origin; (c) threats or incitement to violence against persons or groups on the grounds in (b) above; (d) expression of insults, ridicule or slander of persons or groups or justification of hatred, contempt or discrimination on the grounds in (b) above, when it clearly amounts to incitement to hatred or discrimination; (e) participation in organisations and activities which promote and incite racial discrimination. Hate speech is not only frowned upon by the ICC Statute but it is also prohibited under the Electoral Act Section 95 which provides that 1) no political campaign or slogan shall be tainted with abusive language directly or indirectly likely to injure religious, ethnic, tribal or sectional feelings. (2) abusive, intemperate, slanderous or base language or insinuations or innuendoes designed or likely to provoke violent reaction or emotions shall not be employed or used in political campaigns. All of the above have been freely violated and therefore the time has come for Civic Society to rise to the challenge by coming together collectively before the ICC with genuine evidence of the heinous crimes committed all over the country as Article 15 of the ICC statue provides that the prosecutor of the ICC may receive information on crimes within the jurisdiction of the court. We cannot deny that the political parties have failed woefully to conduct their campaigns in conformity with applicable laws and are therefore to be held liable for contributing to the current atmosphere of violence.

More than enough warnings have come from home and abroad including the visit of the United Nations Under-Secretary for Political Affairs, Mr. Jeffrey Feltman and the Representative of the Secretary General, Mohammed Ibn  Chambas who were in Abuja last week. Jeffrey Feltman at a press conference did state that the international community was watching the Nigerian elections closely and that any persons responsible for violence would be held accountable. Mohammed Ibn Chambas on his part urged political candidates to resolve any electoral disputes through existing legal and constitutional means. It is to be hoped that the violent tendencies may yet be reined in before our election D-Day. When all is said and done in the final analysis the duty to prevent electoral violence rests squarely on the shoulders of the Nigerian government and leaders of the main political parties. We the people of Nigeria will not be looking elsewhere.

THISDAY