Author: Tosin Osasona
Bar associations and law societies are a critical component of legal institutions across the world and the same can be said of African bar associations and law societies. There are fifty-four distinct national lawyers associations in Africa, five regional lawyers association and a Pan-African Lawyers Union that serves as continental platform for lawyers’ guilds across the continent.[i] Some of these national organizations have a long history dating back to colonial period and have evolved over time reflecting the political and social cultures of their societies, so much that they have become an integral part of the legal process in public consciousness.[ii] In fact, the legal profession in Africa has been labeled “the most dominant and the most influential profession.”[iii]
While the membership structure and size[iv] of these organizations differ, almost all are incorporated non-for-profit entities, guided by charters, led by elected officials, and composed entirely of legal professionals. A good number of these associations have wide community coverage and are represented at all levels of society; for instance, the Nigerian Bar Association has 109 branches, spread across 102 different cities and towns in Nigeria[v] and the Law Society of South Africa has six constituent member associations.[vi] These bar associations and law societies are an integral part of public space and a critical component of any compendium of civil society organizations in Africa.
In spite of the lofty ideals crafted into the objective of these associations, legal guilds on the continent operate in a different polity space compared to their peers elsewhere, as their status, skills and training imposes a tripartite duty not just to provide professional legal services, but also to bear the social responsibility for strengthening public institutions, promotion of social equilibrium through the instrumentality of law and consolidating democratic governance.[vii]
John Berry, highlighting the role of lawyers in shaping the rule of law in a difficult environment opined that “[Nigeria] is a country rife with corruption, violence, and poverty […] religious and tribal differences combine with poverty and rampant corruption to give even the strongest optimist concern for the nation’s democratic future—yet the lawyers of Nigeria are at the center of a monumental effort to build a society based on the rule of law. The best was exemplified by lawyers, who under the toughest of circumstances are fighting to create a system of justice that decides disputes not by guns or planes crashed into buildings, but by the rule of law.”[viii]
International criminal justice essentially operates in a sphere where the countervailing forces of culture, religion, law, politics, diplomacy, and justice struggle for dominance. It is an environment where a myriad of non-state actors, states, regional organizations and alliances, international institutions and private citizens interrelate. In spite of the very charged political space in which international criminal justice operates, the concept has gained ascendancy in the last two decades with international criminal tribunals initiating trial process of senior government officials in eight sub-Saharan African countries,[ix] four European countries,[x] and in Cambodia, Lebanon, and Libya. In all – more than sixty heads of states and government have been brought to trial for human rights abuses and corruption at both national and international tribunals.[xi]
However, because of the influence of the Nuremberg and Tokyo trials, as well as the ad hoc tribunals of the 1990s on the evolution of international criminal justice, there is a predisposition towards the internationalization of the concept and in Florian Jessberger words “[…] the popular equation of international criminal justice with prosecution by international criminal courts is foreshortened, and may be misleading […].”[xii] However, for most part of the 20th century, domestic courts and institutions were relied on to enforce international criminal law, in the absence of international enforcement mechanism. For instance, both the 1948 Genocide Convention and all the four 1949 Geneva Convention contain provisions empowering domestic courts to try offenders.[xiii]
Furthermore, the preamble to the Rome Statute of the International Criminal Court (ICC) and Article 1 refers to the ICC as an institution that “shall be complementary to national criminal jurisdictions.” This complementary relationship presupposes that unlike preceding international tribunals “the ICC does not have primary jurisdiction over national authorities, but plays subsidiary role and supplements the domestic investigation and prosecution of the most serious crimes of international concern.”[xiv] Therefore it can be said that international criminal justice should in the ordinary course of events take place within national judicial systems and this brings into fore the role of African bar associations and law societies.
Bar associations and law societies in Africa have an enlightened self-interest in the promotion of the rule of law and accountability in governance.[xv] Lawyers on the continent have a professional interest in the progress of international criminal justice.
There is the need for the promoters of international criminal justice in Africa to specially target and co-opt law societies on the continent as one of the pillars on which the architecture of the concept in Africa can be built. While progress have been made at national level in ratification of the Rome Statute, only few African states have adopted necessary legislation to implement their obligations under the statute, in order to provide for domestic prosecution of international crimes in domestic courts. This is the natural terrain for lawyers and lawyers as part of civil society organizations can push for the integration of the concept into national criminal legal order. Perhaps, this remains one of the best ways to dispel the myth of international criminal justice as western imposition on the continent.
The author: Tosin Osasona is a research associate at the Centre For Public Policy Alternatives, based in Lagos, Nigeria. He is a development professional with cross-cutting experience in legal practice, public policy research and advocacy, human rights promotion and civil society engagement. He is interested in the use of juridical procedures, research and advocacy tools towards the enhancement of human rights and the rule of law in Nigeria and sub-Saharan Africa. You can find his other contribution to A CONTRARIO here.
[ii] The Association of Law Societies of the Republic of South Africa, which is the precursor of the Law Society of South Africa was founded in 1938 (http://www.lssa.org.za/?q=con,67,History). While there are disagreements as to the exact date that the Nigerian Bar Association was founded, there is a reference to the association in a 1933 statute, presuming that the association must have existed at least at the time. (Legal Practitioners Ordinance of 1933) The Tanganyika Law Society, which is the Bar Association of the Tanzanian mainland, was founded in 1954. (The Tanganyika Law Society Ordinance, Chapter 344 of 1954) Law Society of Zimbabwe 1981, Ugandan law Society, 1956 (Ugandan Law Society Act, 1956)
[iii] Okechukwu Oko, The Lawyer’s Role in a Contemporary Democracy, Promoting the Rule of Law, Lawyers in Fragile Democracies and the Challenges of Democratic Consolidation: The Nigerian Experience, 77 Fordham L. Rev. 1295 (2009).
[iv] Law Society of South Africa(21 400 attorneys and 5 000 candidate attorneys)
[vi] the Black Lawyers Association (BLA), the Cape Law Society, the KwaZulu-Natal Law Society, the Law Society of the Free State, the Law Society of the Northern Provinces and the National Association of Democratic Lawyers (Nadel).
[vii] Okechukwu Oko, The Problems and Challenges of Lawyering in Developing Societies, 35 RUTGERS L.J. 569, 573-74
[viii] John T. Berry, Lawyers Are Special: Lessons Learned from Nigeria, MICH. B.J., June 2002, at 12, 12-13 (https://www.michbar.org/journal/pdf/pdf4article443.pdf)
[ix] Central African Republic, Democratic Republic of the Congo, Kenya, Liberia, Rwanda, Sierra Leone, Sudan and Uganda
[x] Bosnia-Herzegovina, Croatia, Kosovo and Serbia
[xi] Aryeh Neier, International criminal justice: Developing into a deterrent,2012, sourced from: http://www.osisa.org/openspace/global/developing-deterrent
[xii] Florian Jessberger, “International v National Prosecutions of International Crimes” in Anthonio Cassesse The Oxford Companion to International Criminal Justice, Oxford: Oxford University Press, 2009, P. 208.
[xiii] Article VI, Convention on the Prevention and Punishment of the Crime of Genocide (1948); Article 49, First Geneva Convention; Article 50, Second Geneva Convention; Article 129, Third Geneva Convention and Article 146, Fourth Geneva Convention (all 12 August 1949). Further, article 85(1), AdditionalProtocol I incorporates this provision by reference; A Bianchi “State Responsibility and Criminal Liability of Individuals” in Cassese ibid, P. 28.
[xiv] Markus Benzing, “The Complementarity regime of The International Criminal Court: International Criminal Justice Between State Sovereignty and the Fight Against Impunity”, A. Von Bogdandy and R. Wolfrum (eds) Max Planck Yearbook of United Nations Law, Vol 7, 2003, P. 591
[xv] Kenneth M. Rosen, Lessons on Lawyers, Democracy, and Professional Responsibility, 19 Geo. J. Legal Ethic, 2006, 155, 162