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January 17, 2019

South Africa right to leave the icc

During the state banquet for South African President Jacob Zuma recently, President Uhuru Kenyatta made one of those simple statements that tend to have a profound effect. President Uhuru explained that before Western civilisation landed on the shores of Africa, Africans had no one in jail. Essentially, Africa had no prisons.

I had never thought about, it but he was right.

I do not know of a single African community that sentenced people to jail for years as punishment for committing a crime. It would have made no sense, especially because everyone built their own homes and no one had the time to build communal jail structures. There certainly was also no one to build a house with the sole purpose of locking someone in for a long duration. And what would they do with such prisoners when the community had to move?

In the African justice system, when you committed a crime you got judged and if found guilty,  punishment was instantaneous. In most cases certain compromises would be made, including the option of paying off whatever losses had been incurred by your actions, with additional socioeconomic sanctions. In extreme cases, the perpetrator would be sentenced to death, usually delivered in some very painful ways. However, such punishments would be done in public as a lesson to others, not revenge. Once the punishment was delivered, everyone moved on.

However, even for the worst crimes, Africans would always find a way of ensuring some mode of restoration was done to those who incurred direct losses. Even in the case of a murder, a system would be found to ensure whatever losses such killing had caused or would cause would be made up for by the family of the guilty person; even where the direct perpetrator ended up being killed.

This system of criminal justice is called restorative justice, and it focuses on the rehabilitation of offenders through reconciliation with victims and with the community at large. This is why there was no option in Africa where someone would be locked up in a room for years as a punishment.
When Western ‘civilisation’ hit our shores, it introduced retributive justice. This is defined as ‘punishment inflicted on someone as vengeance for a wrong or criminal act’.

Retributive justice is about revenge. When someone commits a crime, the main focus of the punishment is to make them pay through pain or jail-time [isolation from society]. There are no attempts to restore the one who has been wronged. The conflict between African and Western civilisation is best represented by these two justice systems. Now these differences are playing out at the International Criminal Court. South Africa argues it “has found that our obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the ICC of obligations contained in the Rome Statute”. It is, therefore, withdrawing from The Hague-based court. Burundi has initiated the same process. Kenya is not far behind. I expect literally every African state to withdraw its membership of this court over the next 10 years.

This exodus is mainly because Africa and the West look at justice differently — and the ICC seems to see only the Western type of justice. It is also because the world has become a global village and as Africa finds its place in this village, its states will continue to explore ways to not only deliver justice, but also governance and economic development, that align to the African culture. I expect Africa to not only mainstream its own form of justice but find its own format of democracy — or whatever we will call it —  and determine its own economic agenda.

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