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Will Hissène Habré receive a fair trial?
5 August 2015

It is going to be a very busy few weeks for Senegalese lawyers Mbaye Sène, Mounirou Balane and Abdou Gniing. They have piles of documents – up to 16 gigabites of them, according to the Senegalese media – to go through before the trial of Chad’s former dictator Hissène Habré resumes in Dakar on 7 September. All eyes are on them and the Senegalese justice system to ensure a fair trial for Habré in the West African city now dubbed ‘The Hague of Africa’.

The lawyers were assigned to defend Habré against the accusations of crimes against humanity, war crimes and torture on 21 July. This after the former Chadian leader refused to cooperate with the Extraordinary African Chambers in the Courts of Senegal, set up by the African Union (AU) to conduct his trial. Habré had also requested his own lawyers leave the courtroom. The head of the court – Gberdao Gustave Kam, who is from Burkina Faso – subsequently ordered that the three Senegalese lawyers represent Habré.

The trial is costing around US$9.7 million. It is financed by Chad (at a cost of US$3,74m), the European Union (€2m) and the AU (US$1m), as well as the United States, the Netherlands, Belgium, France and others. While this is not the first time that a former African head of state is tried by a court (a former Liberian president was tried by the Special Court for Sierra Leone, a hybrid court with an international character), it is the first time that a former leader is being tried by the courts of another African country. The Habré trial is therefore an important step forward for international justice in Africa.

Around 40 000 people are said to have died at the hands of Habré and the notorious DDS
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Between 1982 and 1990, around 40 000 people are said to have died at the hands of Habré and his notoriously cruel Directorate of Documentation and Security (DDS). Thousands of victims met their end in torture chambers built in an emptied swimming pool in N’djamena, where, years later, a group of French investigators and journalists stumbled upon lists of victims and atrocities committed.

Habré lived peacefully in Dakar after he was overthrown in December 1990 by Idriss Déby, Chad’s current president who also, incidentally, served in Habré’s regime. In January 2000, Chadian victims opened a case in Senegal. They were assisted by human rights activists, such as Alioune Tine of the Dakar-based African Assembly for the Defense of Human Rights, and Human Rights Watch’s unflappable Reed Brody, who never gave up the fight to get Habré in the dock.

The road to the start of the case against Habré was not an easy one. In 2005, based on a complaint lodged by 21 victims, a judge ruled that Habré should be tried in Belgium and requested his extradition from Senegal. (A universal jurisdiction law allows Belgian courts to hear cases even when the victims, alleged perpetrators and the crimes are outside of Belgium.)

Senegalese authorities subsequently arrested Habré, but remained reluctant to transfer him to Belgium even after a ruling by the International Court of Justice that Senegal either prosecute or extradite Habré. Senegalese courts, however, declared themselves incompetent to make a decision on the extradition request. Initially, then president Abdoulaye Wade was keen to continue with the case, but as years went by, he seemed to get cold feet.

The road to the start of the case against Habré was not an easy one
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Wade requested AU intervention, and handed over this political hot potato at an AU summit in Khartoum in January 2006, saying that ‘Africa’ should try Habré. The AU then established a Committee of Eminent African Jurists, headed by Advocate Robert Dossou of Benin. The committee recommended that Habré should be tried in Senegal.

Wade still seemed reluctant – saying the trial would be too expensive. After much wrangling and intervention from the likes of Kofi Annan and Archbishop Desmond Tutu, who denounced the delay as an ‘interminable politico-judicial soap opera,’ the AU and other states agreed to carry some of the cost of the trial. It was only after Wade’s successor, Macky Sall, came to power in 2012 that the wheels of justice started turning again. Finally Habré was arrested and put behind bars to await trial on 30 June 2013.

His appearance in the Dakar courtroom on 20 July 2015 was clearly a historic moment. It has been lamented that Habré refuses to cooperate and that, for justice to be done, the defendant should have his day in court. That is why the verdict announced last week against Libya’s Saif al-Islam Gaddafi, son of former Libyan strongman Muammar Gaddafi, has received so much criticism. Denied the chance to travel to the capital for the hearing, al-Islam was given the death sentence by a court in Tripoli while he was being held by militias in Zintan, another Libyan town.

‘Instead of helping to establish the truth and ensuring accountability for serious violations during the 2011 armed conflict, this trial exposes the weakness of a criminal justice system which is hanging on by a thread in a war-torn country with no central authority,’ said Amnesty International of the trial.

Allan Ngari, a senior researcher at the Institute for Security Studies (ISS) in Pretoria agrees that al-Islam’s trial was ‘a travesty of justice’. International human rights law requires the accused to be present, or at the very least, to be represented by council. These rights are contained in Article 14 of the International Covenant on Civil and Political Rights, he says.

There is no basis for Habré’s allegations that it is an illegitimate court
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‘To guarantee a fair trial, the accused person must among others be present; be represented by counsel and the language spoken at the trial must be one that the accused person can understand. He must be able to confront witnesses. So if the accused is not present at his trial, it is difficult to say that the trial has been conducted fairly, and within the dictates of international law,’ explains Ngari.

Ngari participated in a seminar co-hosted by the ISS in Dakar last month, where the Habré trial was analysed. Some were of the view that Habré should not have been brought into the courtroom by force on the first two days of the trial. The scenes of a defiant Habré, flanked on both sides by fierce-looking Senegalese guards, did not advance the cause of justice, says Ngari. ‘It’s not right. A preferred option is that the process is carried out with respect of the dignity of the accused person.’ Still, Habré won’t be the first high-profile figure to refuse to cooperate with a court. Former Serbian leader Slobodan Milosevic – appearing before the International Criminal Tribunal for the former Yugoslavia – and others, have done so before him.

As Habré was led into the court, he shouted accusations at the judge and called the trial a ‘masquerade’. ‘Down with colonialism,’ he called out. Many commentators remarked on the hypocrisy of this statement from a man who was financed by the West during the height of the Cold War in the 1980s to fight against Gaddafi. Several members of his feared DDS were trained in the United States.

‘There is no basis for Habré’s allegations that it is an illegitimate court. It has been properly established as a court within the jurisdiction of Senegal, and so far has received the support of Chad, the AU and development partners. Its founding laws and rules of procedures were adopted according to international standards,’ says Ngari.

Senegal is known for having a solid justice system – something the current minister of justice and former head of the International Federation of Human Rights, Sidiki Kaba, is proud of. His appointment by Sall was seen as part of the process of bringing Habré to trial, since it removed all the remaining political obstacles in Senegal.

Kaba was elected as president of the Assembly of States Parties to the Rome Statute of the International Criminal Court (ICC) in December 2014. He believes that the current conflict between the ICC and Africa can be resolved, notably by the strengthening of local courts in Africa. At a conference in Senegal last year, he said that the ideal would be for African countries to be able to try their own – from the ordinary criminal to the head of state. The success of the Habré trial is therefore not just important for the victims in Chad, but also for the future of justice on the continent.

Liesl Louw-Vaudran, ISS Consultant

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