Brexit: Labour has plans to counter the non-existence “Moving-On” plans of the Tories!

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Its days after and just two weeks after leaked Memo that said how little plans the Conservative Party or Tories Government had. So this report is a answer to that. Like the certain quote of the memo:

“The divisions within the Cabinet are between the three Brexiteers on one side and Philip Hammond/Greg Clark on the other side. The Prime Minister is rapidly acquiring the reputation of drawing in decisions and details to settle matters herself – which is unlikely to be sustainable. Overall, it appears best to judge who is winning the debate by assuming that the noisiest individuals have lost the intra-Government debate and are stirring up external supporters” (Sky News, 2016).

When the matter comes into the light like this; it’s fruitful to see that the major Opposition Party have now showed alternative path or at-least thought things through where they have propositions to a counter-party that doesn’t care for fulfilling their mandate and exercising the vote of the people.

Theresa May, was voted into the Parliament to be MP and not a PM. Therefore she might forget how to get the popular vote and get consensus. Here is one set of ideas and suggestions to how to make amends of the Brexit. This is worth listening to and also reading to get ideas of how to fix the problems of the European Union and the United Kingdom. Take a look!

Infrastructure Policy:

“So what should be done? Brexit offers British policy-makers the opportunity to step back and examine the future direction of infrastructure and housing policy. The Autumn Statement should be used signal a change in direction towards an economic strategy which uses infrastructure and housing policy as a tool to boost growth and productivity in regions that have suffered a lack of investment” (Moving On, P: 12, 2016). “Ignore this problem and it is clear that unity in our divided country will be even further away. Accept the challenge, take steps to rebalance investment, and the United Kingdom has half a chance at sticking together“ (Moving On, P: 14, 2016).

Working Policy:

“First, he should do all that he can to stimulate investment in innovation. Coming up with new ideas, products and services which the rest of the world wants to buy is the best way we can remain internationally competitive post Brexit without seeking to pursue an alternative strategy, advocated by those on the Right, of making our labour markets ever more flexible and embarking on a race to the bottom on people’s terms and conditions of work. Innovation will also help improve UK productivity which is 18% below the G7 average, the largest gap since 1991 when the ONS started collecting such data” (Moving On, P: 19, 2016). “Limited digital connectivity is one of the biggest barriers to business and Ofcom estimates that 1 in 5 small business premises will still not be able to access superfast broadband without further action from government. The Universal Service Obligation – which sets a target of all homes having 10MB per second speeds by 2020 is nowhere near ambitious enough – a more ambitious target and timeframe for delivery should be set if Britain is to be at the forefront of the fourth industrial revolution” (Moving on, P: 22, 2016). “The biggest boost he could provide is by declaring that the Government’s goal during the Brexit negotiations is to continue with the UK’s membership – not just access to – the European Single Market, as I set out in my speech to the Centre for Progressive Capitalism last month” (Moving on, P: 24, 2016).

Skills/Education:

“The National Audit Office for instance has recommended that the Department of Education should set out the planned overall impact of its apprenticeships policy on productivity and growth, along with short-term key performance indicators to measure the programme’s success. The Government must also adequately fund welfare-to-work in the Autumn Statement, get a grip on inclusive regional growth and ensure that welfare-to-work helps those in areas with high unemployment and not just those who find it easiest to get back into work. As the Science and Technology Select Committee has said, the Government should now publish its Digital Strategy policy without further delay and include goals for developing better basic digital skills and increasing digital apprenticeships as well as providing a framework through which the private sector can more readily collaborate with communities and local authorities to raise digital skills in local SMEs” (Moving On, P: 30, 2016).

Welfare:

“The ‘digital skills gap’ meanwhile has been estimated as costing the economy £63 billion a year in lost additional GDP. Also holding us back from the high tech economy of the future is the lack of new engineering and technology recruits meeting employers’ expectations. We are also facing an engineering ‘retirement cliff’ with the average engineer currently in their fifties.18 According to the Engineering UK 2016 report, engineering employers have the potential to generate an additional £27 billion per year from 2022 but only if we can meet the forecasted demand for 257 000 new engineering vacancies.19 And these are exactly the type of professions we need to build our industries and export to the world after we leave the European Union” (Moving On, P: 28, 2016).

Welfare II:

“Firstly, he must reverse cuts to Universal Credit (UC) and restore confidence after the programme’s chaotic introduction so it genuinely provides an incentive to work. Secondly, the Chancellor has to do more to help parents join or re-join the workforce and give every child the best start in life. We should move towards a system of universal free childcare for all working parents of pre-school children, starting with free childcare for all two year olds” (…) “There is also a worrying picture on pay progression too. Universal Credit was intended to help workers move onto higher pay levels, as well as get a job in the first place. But as the Resolution Foundation has said “implementation realities scuppered the ambition of the design”. The likely result is that UC will leave an increasing number of workers stuck on the minimum wage when they should be looking to earn more” (Moving On, P: 32-34, 2016).

Championing Key Sector:

Because Brexit austerity could last beyond a conventional economic cycle, it will require fundamental policy change and supply-side efforts to counteract. Take, for example, the risks now hanging over the financial services sector – which represents 12% of our economic output, nearly two million jobs in the UK and which generates £67billion of revenues for the public purse. It’s not simply a case of having an ‘industrial strategy’ to play to this core comparative advantage for the UK. We will need to negotiate long term access to EU markets where a whole series of product lines face the prospect of being banned and outlawed. Should this turn out to be the case, and the cluster of specialisms in UK financial centres erode with core competences like clearing relocating to Frankfurt or to New York, then we lose a vital skills infrastructure as well as year by year corporation and income tax revenues” (Moving On, P: 38, 2016).

“So we should test the Autumn Statement for whether it counteracts the looming Brexit austerity and whether it can deliver access and opportunities for sectors under threat, like financial services. Yes, there are reforms still needed to many of the tax regimes in which the financial services sector operate. Some lucrative practices need loopholes closing – for instance in the taxation of financial spread betting or old Osborne legacies such as the wasteful ‘shares for rights’ dodge that is rife for abuse” (Moving On, P: 2016).

This here shows the proofs that the Labour Party can have things that works for the nation, if they get people to believe it, but the simplistic dogma of the Tories is sold to the commoners like coke and cheddar cheese, while the Labour Party message is a rock to hit your head instead of being served feasible to the public. Therefore the Labour has to change their ways of sending their message and make sense to the ones blinded by the PM May and her deceptive tone of arrogance from White Hall. Peace.

Reference:

Alison McGovern MP, Chuka Umunna MP, Shabana Mahmood MP, Rachel Reeves MP & Chris Leslie MP – ‘Moving on – A Labour approach to the post-Brexit economy’ (November 2016)

Sky News – ‘Leaked memo shows Government’s lack of Brexit plans’ (15.11.2016) link: http://news.sky.com/story/leaked-memo-shows-governments-lack-of-brexit-plans-10658063/revision/1479197701

EFF Statement on the ANC’s Rejection of the EFF Parliament Motion to Repeal all Apartheid Laws (22.11.2016)

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Today the EFF tabled a motion today in parliament to have a resolution that all apartheid laws should be repealed. The purpose of this motion was to allow a process that makes sure all the legislation passed under apartheid with the intent of realising the superiority, rule and dominance of white people over blacks are removed. After humiliating and factually weak inputs, the ANC caucus elected to vote against this motion. The implication of this vote is that we will continue to live with apartheid laws, 22 years after democracy, thus condemning our democratic dispensation to continue live under the shadow of the murderous apartheid regime.

The ANC has refused to change apartheid laws because they want to continue to use them to fight battles against political opponents. This is clearly demonstrated by their usage of the Riotous Assemblies Act of 1956, which is about protecting and advancing the dominance and supremacy of the white minority. The ANC brought charges against the CIC Julius Malema in the Newcastle Magistrate Court using this act with a view to suppress him and the Economic Emancipation Movement. This same Act was used in the Treason Trail against anti-apartheid activists who were in turn jailed for decades.

This rejection of repealing apartheid laws must be seen as yet another sign of ANC’s degeneration and that it is following on the path of post-colonial failure. That apartheid legislation is still here and alive 22 years into democracy is a sign of unfinished liberation. This is a political failure on the part of the ANC. It means finally, we can actually say with confidence that the ANC has not only failed to provide economic freedom, it has also failed to provide complete political freedom.

ISSUED BY THE ECONOMIC FREEDOM FIGHTERS
MBUYISENI QUINTIN NDLOZI (National Spokesperson)

Contact: +27 (76) 834 7308

Naledi Chirwa (Media Liaison) +27 (61) 482 6589

Website: http://www.effionline.org

Email: communications@effonline.org
Facebook: Mbuyiseni Quintin Ndlozi || Twitter: @EFFSouthAfrica and @MbuyiseniNdlozi

Uganda: Mak Visitiation Committee 2016 – Inaugural Press Statement (22.11.2016)

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Ugandan farmers praise UN report citing flaws with Bidco (22.11.2016)

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The report acknowledges that a partnership with Bidco “could adversely damage UNDP’s reputation and the communities it seeks to help”

KAMPALA, Uganda, November 22, 2016Embattled Ugandan farmers fighting threats and land grabbing by Bidco have praised a draft report by U.N. investigators that calls into question the company’s business practices.

The report is the result of a complaint by the Bugala Farmers Association to the U.N.’s Social and Environmental Compliance Unit (SECU).

The report can be found on the following link: APO.af/cWkh3e

In the complaint, the farmers stated that the United Nations had not performed sufficient due diligence on Bidco before inviting it to join Business Call to Action, which is part of the United Nations Development Programme (UNDP). The farmers provided evidence that Bidco has engaged in human rights, labour and environmental violations in the Kalangala District of Bugala Island, Lake Victoria, Uganda, where Bidco has grabbed land from smallholder farmers and cut down over 18,000 acres of rainforest to make way for a large-scale palm oil business.

The U.N. investigators found fault with the decision to invite Bidco into partnership with UNDP: “After the fieldwork and additional research, SECU concluded that the processes employed by UNDP for admission of Bidco were not consistent with UNDP policies.”

The report acknowledges that a partnership with Bidco “could adversely damage UNDP’s reputation and the communities it seeks to help”, and Bidco’s activities “may be considered risky”.

Kenya-based Bidco has tried to distance itself from the allegations of land grabbing and environmental destruction in Uganda, but the UNDP investigators found there is a clear link between the company’s corporate structure, overseen by CEO Vimal Shah, and operations in Uganda.

The investigators also determined that Bidco’s claim of not being involved in land acquisition in Uganda is not accurate. Bidco “knew of, relied on, and encouraged the purchase (of land) by the government.” Bidco Uganda also was “engaged in decisions and discussions related to the purchase,” the report says.

John Muyisa, a representative of the Bugala Farmers Association, commended the work of the U.N. investigators, who visited remote Kalangala District as part of their research.

“We are very pleased that the United Nations has performed an objective evaluation of its internal processes and determined that it is risky to partner with Bidco. The United Nations is a globally admired organisation, and it is absolutely correct that, as the report says, ‘Communities should be empowered’ and not be trodden upon by predator corporations like Bidco.”

In light of the report’s findings, the Bugala Farmers Association has called on the United Nations to terminate its partnership with Bidco.

Any member of the public can comment on the U.N. draft report until 7 December. The report can be found on the following link: APO.af/cWkh3e

Kenya: Press Statement on the Status of the Recruitment of Chairperson, Ethics and Anti-Corruption Commission (21.11.2016)

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Kadaga Criticizes Museveni’s Closure of Makerere University (Youtube-Clip)

https://www.youtube.com/watch?v=Y14WKXKo3cw

“The Speaker of Parliament Rebecca Alitwala has criticized a decision by President Yoweri Museveni to indefinitely close Makerere University without consulting other stakeholders. Kadaga is concerned that the closure has affected various other institutions utilizing the university’s services especially health centers.
Kadaga’s remarks come after the Chairperson of the Parliamentary Committee on Health Dr. Michael Bukenya informed parliament on the worrying state of Kawempe Hospital where over 15 new born babies are dying daily as a result of the medical interns leaving their posts in the wake of the University’s closure” (NTV Uganda, 2016)

MPs turn violent, exchange blows after meeting Interior CS (Youtube-Clip)

“Two members of parliament from Laikipia County engaged in a physical confrontation as they emerged from a peace meeting convened by interior affairs cabinet secretary joseph Nkaissery at harambee house. Laikipia north MP Mathew Lempurkel clashed with nominated MP Sarah Paulata Korere during which they are reported to have exchanged blows and kicks. Both MPs recorded statements with the police accusing each other of assault” (Kenya Citizen TV, 2016)

White House Report states that the A.I. regulations are lacking in both military and privately at this current day in the U.S.

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Simultaneously, industry has been increasing its investment in AI. In 2016, Google Chief Executive Officer (CEO) Sundar Pichai said, “Machine learning [a subfield of AI] is a core, transformative way by which we’re rethinking how we’re doing everything. We are thoughtfully applying it across all our products, be it search, ads, YouTube, or Play. And we’re in early days, but you will see us — in a systematic way — apply machine learning in all these areas.” (White House, 2016).

Present AI-enabled Products:

“Currently relevant examples of the regulatory challenges that AI-enabled products present are found in the cases of automated vehicles (AVs, such as self-driving cars) and AI-equipped unmanned aircraft systems (UAS, or “drones”). In the long run, AVs will likely save many lives by reducing driver error and increasing personal mobility, and UAS will offer many economic benefits. Yet public safety must be protected as these technologies are tested and begin to mature. The Department of Transportation (DOT) is using an approach to evolving the relevant regulations that is based on building expertise in the Department, creating safe spaces and test beds for experimentation, and working with industry and civil society to evolve performance-based regulations that will enable more uses as evidence of safe operation accumulates” (White House, 2016).

Recommendation to the States:

“Recommendation 1: Private and public institutions are encouraged to examine whether and how they can responsibly leverage AI and machine learning in ways that will benefit society. Social justice and public policy institutions that do not typically engage with advanced technologies and data science in their work should consider partnerships with AI researchers and practitioners that can help apply AI tactics to the broad social problems these institutions already address in other ways.

Recommendation 2: Federal agencies should prioritize open training data and open data standards in AI. The government should emphasize the release of datasets that enable the use of AI to address social challenges. Potential steps may include developing an “Open Data for AI” initiative with the objective of releasing a significant number of government data sets to accelerate AI research and galvanize the use of open data standards and best practices across government, academia, and the private sector” (White House, 2016).

Recommendation to the Federal Government:

“Recommendation 3: The Federal Government should explore ways to improve the capacity of key agencies to apply AI to their missions. For example, Federal agencies should explore the potential to create DARPA-like organizations to support high-risk, high-reward AI research and its application, much as the Department of Education has done through its proposal to create an “ARPA-ED,” to support R&D to determine whether AI and other technologies could significantly improve student learning outcomes.

Recommendation 4: The NSTC MLAI subcommittee should develop a community of practice for AI practitioners across government. Agencies should work together to develop and share standards and best practices around the use of AI in government operations. Agencies should ensure that Federal employee training programs include relevant AI opportunities” (White House, 2016).

On LAWS:

“Over the past several years, in particular, issues concerning the development of so-called “Lethal Autonomous Weapon Systems” (LAWS) have been raised by technical experts, ethicists, and others in the international community.79 The United States has actively participated in the ongoing international discussion on LAWS in the context of the Convention on Certain Conventional Weapons (CCW),80 and anticipates continued robust international discussion of these potential weapon systems going forward.

State Parties to the CCW are discussing technical, legal, military, ethical, and other issues involved with emerging technologies, although it is clear that there is no common understanding of LAWS. Some States have conflated LAWS with remotely piloted aircraft (military “drones”), a position which the United States opposes, as remotely-piloted craft are, by definition, directly controlled by humans just as manned aircraft are. Other States have focused on artificial intelligence, robot armies, or whether “meaningful human control” – an undefined term – is exercised over life-and-death decisions. The U.S. priority has been to reiterate that all weapon systems, autonomous or otherwise, must adhere to international” (White House, 2016).

US Government and the DoD:

“The U.S. government is also conducting a comprehensive review of the implications of autonomy in defense systems. In November 2012, the Department of Defense (DoD) issued DoD Directive 3000.09, “Autonomy in Weapon Systems,” which outlines requirements for the development and fielding of autonomous and semi-autonomous weapons. Weapon systems capable of autonomously selecting and engaging targets with lethal force require senior-level DoD reviews and approval before those weapon systems enter formal development and again before fielding. The DoD Directive neither prohibits nor encourages such development, but requires it to proceed carefully and only after review and approval by senior defense officials. Among other things, the DoD Directive requires that autonomous and semi-autonomous weapon systems are rigorously tested and that personnel are trained appropriately in their use to advance international norms pertaining to armed conflict” (White House, 2016).

Recommendation 23: The U.S. Government should complete the development of a single, government-wide policy, consistent with international humanitarian law, on autonomous and semi-autonomous weapons” (White House, 2016).

These findings are showing how the current Obama Administration has worked on the matter and studied the use of AI in workforce and military. Together with the DoD, the DoD and usage of the AI and UAS. United States Government has made decisions, but has not apparently a current vision on how to use or how regulate the technology of the moment. What is problematic is that there are no common ground for the Lethal Autonomous Weapon Systems (LAWS), neither the DoD Directive neither prohibits nor encourages such development, but requires it to proceed carefully and only after review and approval by senior defense officials. This shows the importance of the current regulations and how to develop the technology to use it in combat and in private sector in the US.

Certainly the Trump Administration has to work on this, but they will surely use this for their benefit. We can all wonder what they will use of this technology and the AI and UAS. Peace.  

Reference:

United States White House – ‘Science and Technology Council PREPARING FOR THE FUTURE Executive Office of the President National Science and Technology Council Committee on Technology’ (October, 2016)

Advocacy Brief on Kenya: 15th Session of the Assembly of State Parties (ASP) to the Rome Statute of the International Criminal Court 16-24 November, 2016 (21.11.2016)

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Background

At the height of the violence that gripped Kenya after the disputed 2007 elections, the Party of the National Unity and the Orange Democratic Movement, who were parties to the conflict, wrote to the International Criminal Court (ICC) seeking its intervention to stop what they called genocide. A local investigatory commission with international participation found that some actions during the post-election violence likely met the threshold of crimes against humanity and recommended the establishment of a Special Tribunal for Kenya, or in the alternative, the handover of the sealed evidence to the Prosecutor at the ICC.

Efforts to establish the Tribunal were defeated by political forces aligned to suspected perpetrators, hence triggering the handover of evidence to the ICC and the subsequent investigation. Six Kenyans were named in connection with seven crimes against humanity charges; the ICC Pre-Trial Chamber II confirmed charges against four suspects. Two suspects – Uhuru Kenyatta and William Ruto were subsequently elected President and Deputy President, respectively, before their trials could begin at the ICC. Thereafter, the Prosecutor withdrew charges against two suspects – Francis Muthaura and Kenyatta – citing witness bribery and intimidation, as well as failure by the Kenya government to cooperate with the court. The remaining case against Ruto and journalist Joshua arap Sang was terminated citing “intolerable levels of witness interference and political meddling”.

Kenyans for Peace with Truth and Justice (KPTJ) has followed closely the developments around accountability for the crimes committed during the 2007 post-election violence. Since the opening of the investigations in March 2010, we have observed certain shortcomings and challenges on the part of the Government of Kenya, the ICC, the Assembly of States Parties (ASP) and the African Union (AU). This brief seeks to focus on key issues emerging from the situation that the ICC and international justice finds itself in today, while drawing linkages from how the Kenya cases and other ICC cases were managed. KPTJ also makes recommendations on actions that require to be undertaken by the ASP, the ICC and African governments in order to address the emergent challenges.

  1. Engage and Withdraw Simultaneously?

A Contradiction in the Mandate of the AU Open Ended Committee

  1. The 27th ordinary session of the African Union’s assembly in July 2016 issued a decision on the ICC[1] pursuant to a similar one from the previous session[2]. Besides praising the court’s termination of the case against Kenya’s Deputy President William Ruto, the AU outlined a five-point agenda for the Open-Ended Committee of Foreign Ministers on the ICC, which included the following:
  • Engaging with the United Nations Security Council (UNSC) before the January 2017 AU Summit and before the 15th Assembly of State Parties in November 2016.
  • Maintaining the earlier decision from January 2016, to develop a comprehensive strategy to inform the actions of AU member states that are party to the Rome Statute; a strategy that includes collective withdrawal from the ICC.
  • Concluding a review of the ICC’s interpretation of Article 93 of the Rome Statute regarding the compulsion of unwilling witnesses to testify, with a view to inform debate at the 15th
  • Conveying the message that AU member states object to the inclusion of language requiring the UNSC to mandate UN peace-keeping missions to enforce arrest warrants in Africa.
  • Utilising the AU Mission in Brussels, Belgium, as the secretariat to the Open-ended Ministerial Committee and provision of institutional support to the African Group in The Hague, Netherlands, to ensure effective coordination of its activities.
  1. The AU has since held a meeting with the UNSC in September 2016 to present pre-formulated terms developed by the Open-ended Ministerial Committee as conditions to keep African States as parties to the Rome Statute. These conditions were as follows[3]:
  • Immunity under the ICC’s Rome Statute for sitting heads of state and government as well as senior officials;
  • Intervention of the ICC in cases involving African states only after those cases have been submitted to the AU or AU judicial institutions; and
  • Reduction in the powers of the ICC Prosecutor.
  1. Recent developments have seen South Africa, Burundi and The Gambia commence processes to withdraw from the ICC; seemingly as part of actualising the intention cited in the agenda of the Open-ended Ministerial Committee. These actions expose the agenda by the AU to be disingenuous and presupposes that the deliberations within the ASP would be futile.. The wave of withdrawals occurs against a counter-wave of support for the Court by countries including Cote d’Ivoire, Nigeria, Senegal, Sierra Leone, Tanzania, Malawi, Zambia and Botswana[4]; an indication that the strategy for mass withdrawal does not enjoy the consensus suggested by the AU decision of July 2016. These countries have suggested that concerns expressed by African states are not insurmountable and can be addressed within the framework of the ASP. Their support for the ICC underscores the fact that the obligations under the Rome Statute are State obligations and not AU obligations; as such, decisions on withdrawal will be based on national interest that cannot be assumed by the AU.
  1. Furthermore, the strategy for AU member states to withdraw undermines the other outlined agenda items of engagement with the ASP, such as the review of the interpretation of Article 93 of the Rome Statute and the enforcement of arrest warrants. Such contradictory actions raise the question of whether the AU is negotiating ICC reforms in good faith.
  1. In light of the foregoing, KPTJ recommends that:
  • African States abandon and disregard calls for mass withdrawal from the Court and instead consolidate the member bloc to advance their concerns within the bounds of the ASP in deliberations based on good faith.
  • African states should continue to publicly reaffirm their support for engaging with the ICC through the ASP and prevail on the AU to adjust its engagement strategy accordingly. We applaud the statements made by Cote d’Ivoire, Nigeria, Senegal, Sierra Leone, Tanzania, Malawi, Zambia and Botswana.
  • An ICC Liaison Office should be established at the AU headquarters in Addis Ababa to facilitate more productive and sustained communication between African States and the ICC as part of restoring a relationship that has become plagued by mistrust and misunderstandings.
  1. Absence of Accountability?

Peace, Security and Stability

  1. The characterisation of the ICC as undermining the peace and security of states or threatening their stability has become a recurring theme by those advocating disengagement or withdrawal from the ICC. In its notice of withdrawal, South Africa claims that its aspirations for the peaceful resolution of conflicts were being hindered by its obligations under the Rome Statute[5] to arrest Sudanese President Omar Al Bashir when he attended the June 2015 AU Summit in Johannesburg. Kenyan government officials have also previously described the cases against Kenyatta and Ruto as an existential threat to peace and stability.
  2. A closer scrutiny of this assertion in the face of ongoing conflict situations suggests the contrary. The absence of accountability processes does not necessarily facilitate peaceful resolution of conflicts; the South Sudan and Burundi conflicts instead point to protagonists willing to escalate violence, even in the context of peace negotiations. Burundi and The Gambia have commenced processes to withdraw from the ICC at a time when their respective governments stand accused of acts of repression and mass human rights violations. Rather than advance the cause for peace, the clamour for withdrawal from the ICC is playing into the hands of those wary of the prospects of accountability in the aftermath of conflict. Even more concerning is an apparent trend of rising post-election violence, such as that witnessed in Kenya previously and in Gabon currently, or violence stemming from efforts to instal third-term incumbencies in the Democratic Republic of Congo (DRC) and Burundi. Such trends are bound to persist in the absence of mechanisms for accountability, of which the ICC is a critical component.
  3. The assertion that the African Court of Justice and Human Rights (African Court) and its proposed expanded criminal jurisdiction through the Malabo Protocol would fill in any void created by a mass withdrawal from the ICC is erroneous. The African Court is a distant prospect for addressing the impunity gap: it is far from being operational. Since 2013, only five states namely Benin, Kenya, Congo, Guinea Bissau and Mauritania have signed but not ratified the Malabo Protocol, which requires the ratification of 15 states to begin operations. Kenya is the only state thus far that has made a financial pledge of USD 1 million to operationalise the court — a far cry from the resources required for a court of broad jurisdiction consisting of a mandate on human rights as well as international law and interstate disputes. It has previously been estimated that a singular international criminal trial costs USD 20 million to undertake. In addition, the protocol contains contentious provisions that undermine its viability as an alternative platform for international crimes, the most notable being the clause of immunity for sitting heads of state and senior government officials. As a testament to the inability of the African Court to be an immediate replacement of the ICC as desired by some, even South Africa through its Justice Minister has indicated that it will ask for a review of the Malabo Protocol to address contentious issues. Furthermore, limited progress has been made towards establishing national mechanisms that can sufficiently undertake the obligation of accountability for international crimes.
  4. KPTJ recognises the pursuit of justice in conflict and post-conflict settings as an essential pillar of rebuilding democracies and restoring rule of law. These are the pathways to lasting peace, security and stability. Rather than push to void international justice mechanisms after the conflict to facilitate mediation, we recommend that:
  • African states fully implement and consistently apply already established norms on democracy, peace and security as a preventative measure to conflict including: the African Charter on Human and Peoples’ Rights; the African Charter on Democracy, Elections and Governance and; the African Governance Architecture.
  • African states must critically reflect on and address the issues of the African Court’s capacity, accessibility, legal standards outlined for crimes under international law and expunge provisions conferring immunity on sitting Heads of State and senior government officials. This process must not be rushed or predicated on a manufactured crisis precipitated by a strategy of mass withdrawal from the ICC.
  • African states should establish robust and credible national mechanisms to address the accountability question at first instance and in complementarity with regional and international mechanisms. They must also broaden their policy considerations to include comprehensive reparation programmes for victims of international crimes.
  • Disparity between State Obligations and Reality?

A look at State Cooperation

  1. The Kenya and Sudan cases have exposed the frailties within the Rome Statute framework in as far as state cooperation is concerned. These cases have laid waste to the presumption that States will willingly engage with the court in the face of cases seeking to prosecute sitting heads of state, their deputies or powerful elites in close proximity to power. State cooperation has only demonstrably worked in instances where the target for prosecution is a vanquished foe of conflict as seen in the cases of Uganda and Cote d’Ivoire, that are fast advancing a notion of “victor’s justice”. This challenge is further compounded by the fact that the final recourse for addressing the lack of state cooperation rests with the ASP. The ASP being a political organ of the Rome Statute is influenced by political rather than purely legal considerations in making its decisions, which makes the issue of resolving the non-cooperation of states problematic. A final challenge to state cooperation is the failure of the United States, China and Russia to ratify the Rome Statute while also being members of the UNSC with the power of referral of matters to the court. This has created the notion of double standards within the international justice system and emboldened other states to disregard cooperation with the court.
  2. KPTJ calls on the members of the UNSC who have not ratified the Rome Statute to display leadership on State cooperation with the court by first ratifying the Statute and utilising its discretion on referral and deferral in a manner that adheres to the objectives of the Statute. We further wish to reiterate that state cooperation must denote effective cooperation that facilitates the mandates of the respective organs of the court and not feigned cooperation which creates the perception of facilitating the court but in fact consists of using procedural and technical obstacles to undermine the court. We call on the ASP to adopt a consistent and objective legal standard in the assessment of state cooperation.
  3. Are there lessons to be learned?

Taking stock of the experience in the Kenya cases

  1. The Kenya cases and the manner of their termination carry critical lessons for consideration to inform future actions by the court and the content of reforms within the strategic plans of its respective organs. The Office of the Prosecutor (OTP) as well as the bench on various occasions decried the instances of witness tampering and intimidation as well as non-cooperation by the state in responding to the OTP requests for information and a failure to execute ICC warrants of arrest with respect to three Kenyans suspected of witness tampering. This in fact has led to a finding of non-compliance against Kenya and led to its referral to the ASP under article 87(7) of the Rome Statute. In the midst of all this, was an unprecedented and disruptive diplomatic effort that deliberately exerted political pressure on the court with a view to influencing the outcome of the Kenya cases. It is arguable that these diplomacy efforts yielded the concession of excusing President Kenyatta and Deputy President Ruto from continuous presence at their trial and that the current wave of withdrawals from the ICC on the basis of an apparent bias by the court against Africans are a fallout from these diplomatic efforts. The capitulations of the cases have also pointed to significant flaws in the investigative and prosecutorial approaches that informed the development of the cases and must lead to some introspection from the relevant mechanisms. The fact that the Trust Fund for Victims is yet to commence operations in Kenya cannot go without mention.
  2. KPTJ urges all the organs of the court to reflect on these experiences and take due cognisance of the following lessons and recommendations:
  • The ICC, particularly the ASP, should do more to ensure that it does not allow political statements to interfere with the judicial independence of the Court.
  • The ICC should ensure that it takes steps to respond to messages of a political nature and correct inaccurate statements in a timely manner. In addition, it should ensure that such key messages reach the right audiences, including victims and affected communities.
  • The Court should continue to build its relationship with African States that openly support the mandate of the ICC; in addition, the ICC should do more to improve its relationship with, and image at, the AU.
  • The Trust Fund for Victims should commence operations in Kenya, as victims have received little to no assistance from the Kenyan government.
  • The Prosecutor should carefully consider when to request ‘summons to appear’ as opposed to ‘warrants of arrest’ and take into account the individual circumstances of each accused person in doing so, particularly their potential to intimidate witnesses and interfere with evidence.
  • Swift action should be taken by the Prosecutor and the Court in instances of non-cooperation by States Parties. Any instances of non-cooperation should be resolved as speedily as possible, in such a manner that the outcome of proceedings on non-cooperation can be applied to strengthen an ongoing case and not be delayed to the point that the outcome is only of academic significance.
  • The Prosecutor should continue to carry out a review of its investigative strategies and methods in order to improve its chances of success at trial.
  • The Prosecution should ensure that its staff are able to spend as much time as possible on better understanding the context and nuances of a given situation country.
  1. Pursuit of reform without prejudice?

UN Reform vs ICC Reform

  1. The unique role played by UNSC in referral and deferral of cases before the ICC means that the debates on reforming the court and reforming the UN and in particular the UNSC have inevitably intersected. We have witnessed both undertones and overt accusations of imperialism and undue influence directed at the court on account of cases on Africa referred to it by the UNSC (Libya and Sudan). Arguments made to amend the Rome Statute to confer immunity for sitting heads of state and senior government officials are laced with grievance against the UNSC permanent five members possessing a de facto immunity from prosecution under the ICC on account of their veto power. The end result is a misdirected effort to amend the Rome Statute or in the extreme withdraw from the ICC on the basis of perceived excesses that are better addressed by engaging the broader debate of UN reforms.
  1. While KPTJ acknowledges the slanted relationship of the UNSC with the court and supports a robust conversation on its reforms, we call on states not to misdirect the agenda of reforming the UNSC into discussions on improving the functions of the court and occasion amendments to the Rome statute that sacrifice the future of the court as part of a bargaining process on UNSC reforms. We call on African states in particular, to distinguish the broader question of UN reforms as enshrined in the “Ezulwini Consensus” from the question of reforming the Rome Statute and reflecting on the performance of the court. We call upon African member states to the Rome Statute not to sacrifice the promise of justice for victims of atrocity crimes at the altar of grievance against the unequal power relations represented by the UN Security Council.

end/kptj/16.06.2016

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About KPTJ:

This brief was prepared by Kenyans for Peace with Truth and Justice (KPTJ), a coalition of Kenyan citizens and over 30 organisations working in the human rights, governance and legal fields that came together during the crisis over the disputed results of the 2007 presidential election to seek truth and accountability for the elections and the widespread violence that followed; and who continue to work closely with the victims of that period. It is a brief update on the situation in Kenya as pertains to pursuing accountability for the crimes against humanity committed during the 2007-2008 Post-Election Violence as well as its adherence to its obligations under the Rome Statute.

[1] Assembly/AU/Dec.616 (XXVII)

[2] Assembly/AU/Dec.590(XXVI)

[3] Press Release: “UN/African Union: Reject ICC withdrawal”. Available here: http://www.khrc.or.ke/2015-03-04-10-37-01/press-releases/552-un-african-union-reject-icc-withdrawal.html

[4] Article: “Which African states slammed Burundi, South Africa and Gambia’s withdrawal from ICC?” Available here: http://www.ibtimes.co.uk/which-african-states-slammed-burundi-south-africa-gambias-withdrawal-icc-1589711

[5] https://www.justsecurity.org/wp-content/uploads/2016/10/South-Africa-Instrument-of-Withdrawal-International-Criminal-Court.jpg

Zimbabwe: Patson Dzamara recounts his abduction and beating

zim-abduction