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23.01.2011 Article

PAN AFRICAN COURT & IVORY COAST

By Rakwena Molefe
PAN AFRICAN COURT  IVORY COAST
23.01.2011 LISTEN

In the absence of the Pan African Court as Africa's Supreme Court, ECOWAS may commission each member country to assign one Chief Justice to a special seating in the Ivory Coast or other African country in or outside West Africa, to review, uphold or overrule the ruling of the Ivorian Constitutional Council that confirmed Laurent Gbagbo as president. Only based on the ruling of the Chief Justices will ECOWAS force and the AU have the legitimacy to enforce the ruling of the Chief Justices.

The AU and ECOWAS pre-eminent duty and obligation is to uphold the rule of law as the basis to resolving the conflict in Ivory Coast and regional conflicts. The AU and ECOWAS has the legitimate inalienable right to use force in Ivory Coast only to stop the torture and murder of innocent civilians, not to depose Laurent Gbagbo.

First ECOWAS should acknowledge both the ruling of the Electoral Commission and Constitutional Council, and seek to protect the independence of both institutions, notwithstanding the flaws in either one. To do otherwise sets an unthinkable precedence of ECOWAS debunking the existence and independence of one sovereign institution against another in one member country, and by extension expunge the sovereign vote of one Ivorian constituency against another. A seating of the Chief Justices provide the appropriate body and legal framework to review and resolve the electoral dispute. The court shall weigh and apply due process to hear both sides, recount and uphold each sovereign vote, declare the victor or call for new elections or other dispensation.

Second the ruling of the Constitutional Council supersedes the ruling of the Electoral Commission.

The ECOWAS seating of the Chief Justices supersedes the Constitutional Council, and provides Alassane Quatarra the right to appeal the ruling of the Constitutional Council, to submit the votes and evidence confirming the ruling of the Electoral Commission. The seating also provides Laurent Gbagbo the right to submit the votes and evidence to confirm the ruling of the Constitutional Council.

Third the UN is wrong to have removed the Laurent Gbagbo sitting representative imposing the Alassane Quatarra representative. Rather the UN should suspend the Ivory Coast UN seat pending resolution of the election dispute.

The UN role as observer, arranger and supervisor of the elections is to provide evidence of its observation to the Chief Justices when seated.

For more than 70 years the apartheid courts ruled in defense of apartheid and suppression of the black majority in South Africa. Europe, the United States, and France in particular never called for the invasion and overthrow of the apartheid regime. They all refused to sign the United Nations Conventions for the Punishment of the Crimes of Apartheid, covertly undermined economic and military sanctions against the apartheid regime. France is grossly illegitimate to call on Laurent Gbagbo to step down much worse set the date to step down. ECOWAS and the AU were wrong to echo France, or appear to echo France.

Electoral disputes and conflicts will continue in the future in West Africa and across Africa. The duty of the AU is to establish the Pan African Court and strengthen independent state and regional courts to resolve electoral and all disputes and conflicts toward construction of the United States of Africa. Africa may use military force only in the last resort to stop the torture and killings of innocent civilians, second to enforce the rulings of the Pan African Court.

The threat by ECOWAS and the AU to invade and remove Laurent Gbagbo by military force discounts collateral damage in loss of innocent civilian lives, and the diversion of scarce resources the West African countries need to rebuild from civil wars. The UN, ECOWAS and AU are no impartial arbiters in the conflict in Ivory Coast. Their stated bias for military intervention is the consequence of the absence of the Pan African Court, and should be avoided and averted.

Ivory Coast is a divided nation, split between the north and south by religion and ethnicity on the ebb of civil conflict. ECOWAS and the AU have the responsibility to weigh the division, therefore seek not to take sides and not to exacerbate the division into civil conflict.

Establishing the Pan African Court is imperative to protect and uphold Africa's territorial and judicial sovereignty and independence. The call by the AU, ECOWAS, and Alassane Quatarra to Laurent Gbagbo to step down or face military intervention is evidence that in the absence of the Pan African Court as Africa's Supreme Court, political disputes escalate to confrontation, to conflict, to violence, to murder and military intervention.

Sending the ECOWAS and AU delegations to the Ivory Coast is no substitute to establishing the Pan African Court, or to assembling an impartial independent seating of ECOWAS Chief Justices. Sending individual emissaries to negotiate disputes effectively undermines establishing the rule of law, sustainable peace and stability in Africa. Individual emissaries are imperfect and susceptible to bias.

In the landmark United States Supreme Court decision in the 2002 presidential election vote dispute between candidates George Bush and Al Gore, the Court in a 5-4 decision ruled ". the counting of the votes that of questionable legality does threaten irreparable harm to petitioner Bush, and to country;" that the ". count first, and rule upon legality afterwards, is not a recipe for producing election results that have public acceptance democratic stability requires.

These were the votes legally cast in the State of Florida but recounted because the vote margin mandated recount under the state electoral laws. The Court stopped the recounting, the country accepted the Court's ruling, George Bush became US President and the country moved on.

In the Ivory Coast, a country with an underlying ethnic and religious divide, grinding poverty and dormant civil conflict, ECOWAS and the AU are threatening legitimate force invasion as the last resort to depose one candidate without exhausting establishing the judicial appeals, due process and the rule of law.

The seating of the Chief Justices provide the immediate best less costly solution to peacefully and permanently resolve the Ivorian conflict within days or weeks.

Rakwena Molefe
Pan African - New York

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