Papers by Godfrey M Musila
Social Science Research Network, 2018
is an international law, justice, rule of law, governance and security expert. He has worked exte... more is an international law, justice, rule of law, governance and security expert. He has worked extensively in and on Africa for nearly 15 years as a legal academic, trainer, consultant and advisor to governments, intergovernmental bodies, and non-profits.
SSRN Electronic Journal, 2004
2.6.2 Monetary reparations 17 2.6.3 Other forms of reparation 18 2.7 Amnesty defined 18 2.7.1 Typ... more 2.6.2 Monetary reparations 17 2.6.3 Other forms of reparation 18 2.7 Amnesty defined 18 2.7.1 Types of amnesty 18 2.7.2 Related concepts: pardons, immunity and impunity 19 2.7.3 Amnesty in international law 20 2.8 Conclusion 21 CHAPTER 3: NATIONAL APPROACHES TO AMNESTY 3.1 3.4.2 Pre-TRC Indemnity Acts 3.4.3 The AZAPO decision 28 3.5 Moçambique: a case of collective amnesia 28 3.6 The approaches: preliminary assessment 3.7 Conclusion CHAPTER 4: DECIDING AN AMNESTY CASE 4.1 4.3.1 Substantive rights 32 4.3.2 Making the claims for a remedy 33 4.4 Expanding Charter standards 4.5 Framing the complaint: applicable law 34 4.6 Amnesty under the Charter: its limits 35 4.6.1 General state obligations 4.6.2 Right to judicial protection 36 4.6.3 Right to justice 36 4.6.4 Right to truth 37 4.6.5 Amnesty and impunity 38 4.7 Countering the claims vii 4.7.1 Affirming sovereignty 39 4.7.2 Confronting subsidiarity arguments: margin of appreciation 4.7.3 National constitutions and the Charter 4.8 Finding a level of compliance: acceptable amnesty? 4.9 Conclusion 43
After a strenuous journey of 20 years, perhaps longer, Kenya adopted and promulgated a new consti... more After a strenuous journey of 20 years, perhaps longer, Kenya adopted and promulgated a new constitution on 27th August 2010. Before the adoption and promulgation of the constitution, the highly controversial and long standing constitutional review process had been the subject of debate and inquiry for years, including in earlier editions of the State of Constitutionalism reports. The review process encompassed the aspirations of Kenyans who sought to address multiple constitutional and governance problems that had blighted constitutionalism and Kenya’s democratic evolution for decades. Kivuva captures these aspirations aptly:66 [...] those clamouring for a new constitution did not just want to restructure the government and redefine their relationship to it; they also wanted to solve a number of governance problems associated with the country’s previous governments. These included: rethinking the logic of state power vis-a-vis the citizenry; re-asserting the correct relationships be...
With the concretisation and expansion of international criminal justice, intergovernmental bodies... more With the concretisation and expansion of international criminal justice, intergovernmental bodies other than the United Nations Security Council (UNSC) are increasingly becoming important role players. While African countries have been active at various times in the decisions to establish the International Criminal Tribunals for Yugoslavia (ICTY), Rwanda (ICTR), the Special Court for Sierra Leone (SCSL) and more recently the proposed Special Court for Central African Republic, the African Union, as a grouping of African states is assuming greater and broader roles in the functioning of international criminal justice system. With the adoption of the Malabo Protocol on the African Court of Justice and Human Right has waded into previously unexplored territory. In the same vein, the AU’s role in the creation of the Extra-Ordinary African Chambers for the trial of former Chadian dictator Hissene Habre for alleged torture and crimes against humanity committed in Chad is another example o...
The Protection of Economic, Social and Cultural Rights in Africa
SSRN Electronic Journal, 2014
This monograph attempts to respond to some of the questions raised in respect of the work of the ... more This monograph attempts to respond to some of the questions raised in respect of the work of the International Criminal Court (ICC) in the Democratic Republic of the Congo (DRC). In this regard, it has three main objectives. First, by focusing on a State Party where the ICC’s Office of the Prosecutor is currently conducting investigations, it considers the cooperation relationship between the ICC and the DRC. In this regard, it appears that, irrespective of the lack of legislation implementing the Rome Statute in that country, the DRC continues to cooperate with the ICC in its investigations. In view of erroneous positions taken by some states and commentators that only those countries where crimes have been perpetrated, in particular those in respect of which investigations are ongoing, have immediate obligations in relation to the ICC’s work, the monograph seeks to outline and illustrate broader obligations for member states in general. It demonstrates that the work of the ICC in places like the DRC engages the duties of ‘non-situation states’ in various ways. Second, by examining the practice of the Court since the situation was referred to it, the monograph considers the role of politics – domestic or otherwise – in the work of the ICC. Third, it examines the perceptions around the work of the ICC in various sectors of Congolese society, including government, victims, civil society and the general public. By extension, it addresses some of the questions hat the work of the ICC in Africa has raised, including the allegation that the ICC is ‘targeting’ African countries and that somehow these countries are unwilling participants in the process. By identifying and discussing the various factors that informed the referral of the situation by the DRC, the monograph seeks to discredit the single-factor explanations of the circumstances under which the ICC became engaged in the DRC. In this regard it explores various factors that influenced those events and continue to have a bearing on current perceptions and operations of the Court. These influences include the role of victims and non-governmental organisations (NGOs); international pressure, in particular from the United Nations (UN) and European Union (EU); the transition from conflict and the new government’s will to rebuild the country governed by rule of law and respect for human rights; the absence of reliable and ready domestic mechanisms; and the continuing conflict in the east of the country. The study makes a set of findings, conclusions and recommendations. On the issue of cooperation between the DRC and the Court, the monograph concludes that the ICC cannot succeed in its work without effective and reliable cooperation and assistance from member states, in particular states where investigations are ongoing. Such a relationship has to be given effect by some instrument – usually implementing legislation. In the absence of this, the DRC has signed the Agreement on Judicial Cooperation in terms of which the relationship between the Court and the country is regulated. In outlining the relevant provisions of the Agreement on Judicial Cooperation, which stipulates in detail the framework for cooperation and the granting of assistance to the Court, it became apparent that for the DRC to meet these obligations, a well-resourced Office of the Attorney General and Director of Prosecutions, both equipped with the necessary capacities, is essential. The monograph notes that these elements are for the most part lacking and that, despite the existence of political will to assist the Court, complaints have emerged on the ground that the ‘ICC is too demanding’. In view of ill-equipped law enforcement agencies, the various forms of assistance – for the most part of a technical character – impose heavy burdens on existing structures. The study finds that perceptions of the ICC in different sectors of Congolese society are varied. It also notes that these perceptions have been influenced by several factors, which have varied with the prevailing political circumstances. With respect to government, the study finds that the government views the role of the ICC in prosecuting serious crimes as an important one, not only in fighting impunity and doing justice for victims but also in sending a message to those who are still actively involved in armed conflict and various forms of violence that they have to choose the path of peace. It is noted that having received numerous complaints from victims regarding crimes committed in the DRC, the Office of the Prosecutor worked to persuade the government that a referral would be appropriate. While perhaps assigning too much responsibility to the ICC, the government sees its work as crucial in the fight against impunity. The failure of the Truth and Reconciliation Commission (Commission Verite et Reconciliation) to achieve anything significant in the two years it was in existence, and weaknesses in the criminal justice system,…
SSRN Electronic Journal, 2011
Since the transformation of Organization of African Unity (OAU) into the African Union (AU) in ye... more Since the transformation of Organization of African Unity (OAU) into the African Union (AU) in year 2000, the continental body has shown itself more willing and perhaps better equipped than its predecessor to play a greater role in the maintenance of regional peace and security by intervening in various ways in conflict situations on the continent. However, the dynamism of conflict situations has proved challenging for the evolving regional body. The area of transitional justice is one that the AU seems untested, hesitant and perhaps less prepared to engage for a range of reasons. The conflict situation that unfolded in Kenya following the disputed presidential elections of 2007 presents one an opportunity to gauge the role of the AU in transitional justice in Africa: its preparedness, legal basis, challenges and opportunities that may exist for the continental body as it seeks to define its broader role in regional peace and security. This chapter thus discusses the role of the AU and sub regional bodies in the unfolding transitional justice process in Kenya. In particular, the chapter identifies specific interventions by the AU and sub regional bodies (the East African Community) commencing with the negotiated agreement that created the government of National Unity (GNU). More broadly, the role of various actors such as the broader international community (United Nations and key Western governments) as well as civil society is discussed. In the end, the chapter makes recommendations for the possible continued role of AU and sub-regional bodies in specific aspects of transitional justice developments in Kenya.
SSRN Electronic Journal, 2014
This study focuses on the fight against impunity as its predominant theme. The choice of theme re... more This study focuses on the fight against impunity as its predominant theme. The choice of theme reflects a general conviction – informed by recent events – that failure to address past atrocities over decades in Kenya created an environment where impunity thrived. First, it seeks to refocus the current debate and contextualise it within a transitional justice context, rather than simply the one-off prosecution of those with the greatest responsibility for the Post Election Violence of 2007-2008 (PEV). In this regard, it integrates the accountability debate around the PEV and that relating to the KTJRC that predates the former. Secondly, by discussing select African experiences with transitional justice, the study seeks to draw lessons that could inform the accountability efforts in Kenya – as they relate both to the KTJRC and the relevant prosecutorial mechanisms. Thirdly, the publication also seeks to broaden the current debate to include issues that, though relevant have not been discussed in any detail. These include gender issues within transitional justice, the role of domestic courts in the accountability process and the possible role of the African Union in combating impunity and contributing to the peace and stability of the region.
SSRN Electronic Journal, 2013
With the concretisation and expansion of international criminal justice, intergovernmental bodies... more With the concretisation and expansion of international criminal justice, intergovernmental bodies other than the United Nations Security Council UNSC) are increasingly becoming important role players. In particular, the African Union, the premier intergovernmental continental body of African states, is assuming greater and important roles in the evolution and functioning of the broader international criminal justice system. This is best illustrated by recent debates around Universal Jurisdiction and the international criminal court (ICC) in which a number of African Union organs (Assembly of Heads of State and Government, Pan African Parliament and the Peace and Security Council) have weighed in in some respects decisively. Various examples show that the AU is making forays in the unfolding system of international criminal justice and deeply impacting the debate and evolution of related processes. This chapter assesses the role of the AU in ICJ in Africa by reviewing recent debates around universal jurisdiction (as they relate to the proposed prosecution Hissene Habre as well as the controversial process triggered by Rwanda on the alleged abuse of UJ by European courts) and various interventions by AU organs in relation to the ICC, including the contested indictment of President Omar Al Bashir of Sudan. Locating international criminal prosecutions within a broader context of responses to conflict and associated atrocities, it discusses the evolving roles of the various AU organs – political, deliberative and judicial. The chapter/contribution argues that AU has a direct role to play in respect of prosecutions at the international and national levels and indirectly in a number of other ways that has a bearing on international criminal justice. Noting that this involvement by regional and sub-regional bodies in international criminal justice is for the most part novel, it argues that this heralds a new and exciting era of engagement that should contribute to the fight against impunity and by extension to peace and security on the continent. However, the approach adopted and certain measures taken by regional body have potential of undermining or rolling back gains made so far in the fight against impunity and achieving security on the continent.
SSRN Electronic Journal, 2007
The International Criminal Court and Africa
African Human Rights Law Journal, 2005
This paper considers the question of the criminal responsibility of child soldiers for atrocities... more This paper considers the question of the criminal responsibility of child soldiers for atrocities committed in armed conflict. It highlights the innovation introduced in international criminal law by the Statute of the Special Court for Sierra Leone, which permits the prosecution of children aged 15 and above. In viewing child soldiers not only as perpetrators but also as victims of human rights abuses, it argues that the existing mechanisms of criminal sanction for human rights violations that focus on punishment of the perpetrator are inadequate and that elements of restitutive justice, which are already asserted to a limited extent in recent developments in international human rights law regarding juvenile justice, should be included in the criminal prosecution process. Such an approach would satisfy the minimum requirements of justice while ensuring that child soldiers, who are often themselves the victims of human rights abuses, are appropriately sentenced.
The African Court of Justice and Human and Peoples' Rights in Context
SSRN Electronic Journal
Africa is a vast and complex continent that does not lend itself readily to facile characterizati... more Africa is a vast and complex continent that does not lend itself readily to facile characterizations. Yet the need for a handy framework for getting to grips with the state of security and political risk for individual African countries — one that could explain more than the common reductive narrative of war and disease — is ever present. The distortive impact of Africa’s encounter with colonialism and its recreation on the Westphalian state model based on inherited borders is real, and it often looms large in renderings of social, economic and political phenomena. We look beyond this somewhat reductionist lens to propose a frame that identifies five key structural factors that might be seen as essential to a nuanced understanding of the security and political reality in Africa. Granted, a framework that encompasses ethnicity, the state of democracy, rule of law, geopolitics and technology furnishes but one set of lenses. It does no more than provide one set of tools to obtain a summative yet nuanced grasp of what can be a complex and daunting reality. The twin assumptions that under-gird our thinking pertain to the role of the state and the essence of security. We posit that the primary role of the state is to secure life, limb and property — a task that calls for effective resolution of conflicts vertically between the state and subjects of the law and horizontally between the latter. Security encompasses more than regime security, state security and physical security and liberty of individuals — it extends to elements that touch on the social and economic welfare of individuals and societies. Citizen security, or human security, it is often called.
SSRN Electronic Journal
This paper examines the proposed options for justice and reconciliation in the Central African Re... more This paper examines the proposed options for justice and reconciliation in the Central African Republic and proposes policy recommendations on how mechanisms identified should be implemented. It provides a detailed analysis of the relationship between various options for justice, including the International Criminal Court and the proposed Special Criminal Court considered within the national transitional justice framework – the Republican Pact for Peace, National Reconciliation and Reconstruction – agreed upon by the Bangui Forum on May 11, 2015. With respect to the Special Criminal Court, it reflects upon its operation based on the current text of the law, and proposes policy recommendations drawn in part from the experience of similar courts as they relate to subject matter jurisdiction, the prosecutorial function, victims’ rights, witness protection, the court’s relationship with other courts as well as non-judicial accountability mechanisms. The paper discusses how mechanisms of (criminal) accountability relate to the broader transitional justice project, including constitutional reforms and others aimed at establishing peace and stability. Adopting a broad conception of justice – one that is not restricted to retributive justice – the paper locates victims within the transitional justice and criminal accountability project and argues that peace and stability as long term goals will remain elusive if the concerns of victims – however defined – are not addressed. The paper consequently argues that policy makers must fashion responses that address a multiplicity of concerns and interests in the Central African Republic.
Peace at the University of Lubumbashi, DRC, and Lynn Gentile, formerly of the International Crimi... more Peace at the University of Lubumbashi, DRC, and Lynn Gentile, formerly of the International Criminal Court, who formally peer-reviewed the monograph. Thanks to my colleagues at the International Crime in Africa Programme, Anton du Plessis and Antoinette Louw, for their useful comments, edits and insights. In representing and commenting on views about the work of the ICC in the DRC, the author has made an attempt to be critically constructive in discussing various aspects of that important relationship. The views expressed in this monograph in no way bind the individuals or institutions listed above; neither does it necessarily reflect the views of Institute for Security Studies.
From Western Sahara in the North to South Africa at the Southern tip of the continent and from th... more From Western Sahara in the North to South Africa at the Southern tip of the continent and from the Gulf of Guinea in the West to the Horn in the East, the recent history of the continent seems inseparable from that of armed non-state formations. In South Africa, the armed struggle waged by Umkhonto we Sizwe, the military wing of the African National Congress (ANC) and other groups put paid to the oppressive apartheid regime with the inauguration of democracy in that country. In many other African countries, independence was won on the edge of the sword wielded by similar groups: Frente de Libertacao de Mocambique (FRELIMO) in Mozambique; Mau Mau in Kenya; South West Africa People's Organization (SWAPO) in Namibia; Front de Liberation Nationale (FLN) in Algeria among others. Current African experience demonstrates that the activities of armed non-state formations did not cease with the hoisting of independence flags. For various historical reasons, new struggles emerged in many countries not long after these celebrations had ended. Some of these conflicts can be explained by oppressive dictatorships, ethnic & religious struggles for power and resources and abortive attempts at democratisation. There are quite a few countries on this list: the Democratic Republic of the Congo (then Zaire), Mozambique, Angola, Sudan, the Comoros, Nigeria, and others. While the activities of some of these movements have not yielded quick success thus provoking endless spirals of violence, elsewhere, they have resulted in decisive ends. In some countries, the endeavours of these non-state formations have resulted in take over of power thus catapulting them into government: Uganda’s National Resistance Movement (NRM); Rwandan Patriotic Front (RPF); the Alliance of Democratic Forces for the Liberation of Congo-Zaire (ADFL); and the National Patriotic Front of Liberia (NPFL) are good examples. In other countries, rebel activities have resulted in fragmentation and secession, as was the case of Eritrea, and possibly Southern Sudan. Experience from some African countries also shows that some armed non-state formations may not necessarily have grand political objectives such as national liberation movements and rebel movements whose ultimate goal is either to take power or reach an accommodation for a new political dispensation. While this category may be appropriated by political formations for their own ends, it remains founded in either criminal (petty or organised and mafia-like) motives or espouses pseudo-religious messages. The Mungiki in Kenya and similar criminal gangs and sects are a good example. The fact that the activities of armed non-state actors in general have invariably been regarded as criminal (or terrorist) in the various national systems has coloured responses by relevant authorities. What about international law? What is the place of these groups under the various branches of international law? It is similarly true that by their very existence, these entities – rebel movements, militias and other armed groups – operate against or threaten to overturn existing social, economic and legal orders, not least the international legal order. For instance, as shown later in this chapter, some of the most egregious crimes committed during the continent’s many conflicts have been attributed to some of these armed formations. As noted already, activities of such entities have in a number of cases resulted in redrawing the boundaries of states, touching on a central pillar of the international legal order. Further, armed conflicts in various parts of the continent have resulted in far-reaching socio-economic effects on individuals and entire communities. For at least these reasons, international law – hitherto unresponsive to non-state entities – has attempted to deal with these new actors whose actions often have international ramifications. Since the various non-state actors described above may form separate categories, the response of international law and its various branches has not been uniform. This chapter has four main objectives. First, it attempts to distinguish the various categories of actors – national liberation movements, rebels and militia as well as other relevant groups – in legal context. Second, it reviews international law and its various relevant branches in relation to these groups – in particular rebel movements and militia. Third, it outlines the legislative responses by the AU and UN to rebels and militia activities within the African context. Fourth, it provides an overview of the breaches of international law committed by these actors and how international and national legal regimes has held them accountable, and some of the challenges of holding perpetrators accountable under international law. The chapter has three parts. The first part, of which this introduction is part, sets out the theoretical framework while clarifying some of the basic concepts. It also outlines the place of relevant…
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Papers by Godfrey M Musila
This edited volume is the result of first interdisciplinary research project which took from 2015-2017 at the International Nuremberg Principles Academy aiming at developing a comprehensive research tool for assessing acceptance in different situation countries. It contributes and sheds light on understanding ‘how international criminal justice is accepted by relevant actors in situation countries?’ and provides consolidated findings to practitioners and academics.
The project reflects one of the main goals of the Nuremberg Academy, namely to contribute to the promotion of the legitimacy, lawfulness and acceptance of international criminal justice. It also reflects the Academy’s concept of interdisciplinary research, understood as an opening up the collaboration with universities and research institutions in countries with critical situations and to engage with professionals and practitioners in the field of peace and justice research. For that reason, at the core of the project lies a fellowship program for young academics from situation countries.
The project started with a preparatory phase in 2015, during which the project team conducted literature research and developed a methodology for studying ‘acceptance’. Experts from Colombia, Bosnia and Herzegovina, Kenya and Lebanon were consulted in writing reports on the acceptance of international criminal justice in their respective countries. This was in addition to fieldwork contributions from young scholars from Cambodia, Cote d'Ivoire, Croatia, DR Congo, Kenya, Kosovo, Nigeria, Palestine, Rwanda, Serbia, Uganda and Ukraine.
The acceptance online platform is a repository of educational and research tools, openly published and addressed to a wide audience of academics and practitioners interested in understanding, researching and influencing the acceptance of international criminal justice at regional, national or international level.
This platform is a hub designed by the acceptance team to share the outcomes but also the lessons learned through the different stages of the project. Since its inception in early 2015, the acceptance team tried to bring on board a diversity of views, backgrounds, interests and experiences amongst the team, fellows, contributing experts and the audience.