Time to rethink justice in Africa

I recently attended a public lecture by acclaimed author, Ngugi wa Thiong’o, titled The Language of Justice in Africa.
The lecture was on how the English language has assumed its powerful status in Anglophone Africa and how the justice systems in these countries, premised on English codes, may actually be miscarrying justice by virtue of their language design.

The crux of Ngugi’s arguments is: “In nearly all Africa, European languages, though a minority, occupy positions of power in the market place, administration, education and the judiciary. In the courtroom you hardly ever come across a [lawyer who speaks an African language] arguing a case in [his/her mother tongue].

“Quite apart from anything else, all Acts, including the fundamental Law of the land, the Constitution, are all in English.

“Our judicial system, the most consequential in all our lives, in our court system, has no room for African language speakers. The defense, prosecution and the judge occupy a linguistic sphere totally removed from the person whose guilt or innocence is on the line, if he/she happens to be an African language speaker. This was the way it was during the colonial era; this is the way it is in the postcolonial era.”

You simply have to attend a court session in which the accused is not an English speaker to appreciate the above, and the consequences it bears for effective access to justice and protection of human rights.

The fundamental point related to the above is, of course, the unequal power relations – mediated by the English language – that have prevailed, and continue to prevail between colonial powers and the colonised, with devastating consequences on the latter.

To drive this point home, Ngugi asked simple but thought-provoking questions, correctly noting that one could not speak about the language of justice in Africa without referring to the continent’s colonial heritage – a heritage of violent dispossession and subjugation.

On identity, have you ever encountered a white European with an African name?

On the economy, how many African-owned companies possess land in Europe or the US? How many African-owned companies are conducting mining activities in Europe or the US?

On security, how many times have African police officers gone to Britain or the US to quell riots? How many African governments have been able to bomb a country or change a regime with a leader they didn’t like?

On justice, has any African judiciary been able to take white European or American leaders accused of committing crimes against humanity – including brutal colonial crimes – to The Hague?

The latter question is especially pertinent in light of the recent extra-ordinary summit of the African Union, which mooted a withdrawal from the International Criminal Court (ICC).

The argument being advanced by countries threatening the withdrawal is that this court unfairly and unjustly targets African leaders. Indeed, all of the current situations being adjudicated by the ICC affect African countries.

To better understand the weight and depth of the argument against a seemingly biased and Western-sponsored ICC, one needs to appreciate sentiments, such as those shared by Zimbabwe president Robert Mugabe, who at the recently-concluded United Nations General Assembly in New York unequivocally said: “We are preached to daily by the West on the virtues of democracy and freedom which they do not totally espouse.”

This thinking presupposes acts of breathtaking double-standards on the part of those who preach the water of democracy and freedom while drinking the palm-wine of tyranny and impunity. It should not be dismissed without thorough interrogation because it does bring into question the credibility of the ICC in terms of how it is seen to be delivering justice.

Hence, it is important to note that what is being questioned by those agitating for the withdrawal may not be the need for an institution such as the ICC to exist, but rather its function and commitment to principles of international law and justice if, indeed, justice is blind.

The criticism leveled at the intention to withdraw from the ICC is not without merit either. Without a court of this nature, many people – not just in Africa – are likely to escape accountability for actions that violate human rights, leading to gross impunity and the failure of those who suffer abuse to access justice.

The debate on the conduct of the ICC towards Africa is, undoubtedly, critical. However, if it excludes a much stronger focus on the need to review and strengthen national justice systems, doing away with the inherent structure and culture of colonial oppression, effective access to justice and legal protection of citizens’ rights will remain a pipe dream from many across the continent. Except, of course, the rich and competent English speakers, for example.

In any case, it is at the national level that most miscarriages of justice occur. It is also at this level that threats to judicial independence are seen.

Therefore, the occasion of the AU extra-ordinary summit provided Africans with an opportunity to question their leaders’ commitment to guaranteeing effective access to justice at a very local, grassroots level – where it matters the most.

As Ngugi accurately observes: “The struggle for Independence was a struggle for a people to be in control of their entire environment. But something went wrong at the raising of the flag. We Africanised and nationalised the colonial game; we normalised the abnormalities of the colonial system and called it national and African.”

Hence, efforts de-campaigning an African ICC withdrawal miss a crucial historical point if they do not link demands for effective access to justice on the continent to the need for reviewing national justice systems and the building of strong, organic institutions, including robust judicial mechanisms, which can inspire the confidence of all citizens and enable them to pursue accountability and justice without reverting to something as far-removed from them and indeterminate as the ICC.