Statesman -- LEGAL contacts of The Statesman in Belgium have indicated that there are moves by a small group of Ghanaian victims of human rights abuse to institute legal action against Ghana's former President Jerry John Rawlings for alleged crimes against humanity. The former air force officer served as the Head of State under Ghana's two most brutal military regimes, the AFRC and PNDC, according to official accounts. The Constitution of the Fourth Republic grants him some qualified immunity for things that happened during that era. However, our sources in Belgium have disclosed that the move in that country to have Mr Rawlings face the law is very much on course. This could lead to an arrest warrant being issued against the former chairman of both the AFRC and PNDC, under Belgium's universal jurisdiction law, which allows its judges to prosecute human rights violations no matter where they were committed.
The Ghanaians pursuing the class action in Belgium, our sources say, have been buoyed by the recent arrest in Senegal of the former dictator of Chad, Hissène Habré, 63. His arrest followed a similar warrant which was issued by a Belgian prosecutor.
But John Mahama, Minority Spokesman on Foreign Affairs and NDC MP for Bole-Bamboi thinks any plans to arrest and prosecute the former dictator on charges of genocide or crime against humanity could well be a misplaced priority and “I am doubtful that they will achieve much success.” Speaking to The Statesman yesterday, Mr Mahama said: “My understanding of such protocols is that they are used in circumstances of systematic genocide and deliberate killing of political opponents.” While conceding that there was indeed some loss of lives during the AFRC and PNDC periods because some soldiers took the law into their own hands – a fact he describes as “regrettable” – Mr Mahama argues that they might not merit being described as systematic genocide against political opponents for which Mr Rawlings should be hauled before a Belgian court.
“I know that under the two regimes, which were headed by the former President, there were a number of excesses as a result of some soldiers taking the law into their own hands resulting in loss of lives but the circumstances might not qualify as genocidal,” said he.
“It will be preposterous to bring such charge against the former Military dictator at this time when he has become accepted by the international community for contributing greatly to developing the nation's democracy, peacefully handing over power and currently working as a UN Ambassador for Malaria,” he added.
“I am in this regard doubtful that any action to arrest the former president will achieve any success.”
Instead, he advised that victims find solace in the work of the National Reconciliation Commission which he said offered victims of those regimes the opportunity to assuage their suffering and pain with the telling of their stories.
Some 30 current or former political leaders are facing action under the Belgian law. Those who have risked being snared by the law include Israeli Prime Minister Ariel Sharon, US President George W Bush, the late Palestinian leader Yasser Arafat and Cuban President Fidel Castro.
After more than a decade of living in comfortable exile in Senegal, the deposed Chadian dictator nicknamed “Africa's Pinochet” was arrested by police Tuesday. He is accused of mass murder and the torture of political opponents, and now faces extradition to Belgium and a trial for crimes against humanity.
Also this week, Court-appointed experts in Chile have determined that former dictator Augusto Pinochet is fit to stand trial on crimes against humanity. One prosecution lawyer said doctors believed Pinochet had faked ill-health. Human rights groups have hailed Mr Habre's arrest as a turning point for Africa. “Fear is finally changing sides,” Boucounta Diallo, a lawyer representing alleged torture victims told reporters in Europe. “From now on, dictators will watch themselves.”
One difficulty in pursuing ex-dictators, however, is the clash between the desire for justice and realpolitik. President John Agyekum Kufuor, on being handed the report of the National Reconciliation Commission last October, assured Ghanaians that his government was not going to use the report to prosecute the perpetrators of human rights violations, whom he said would have to live with their consciences.
But, apparently unhappy with this, several Ghanaian victims have travelled to seek justice elsewhere.
And the findings of the NRC report of October 12 2004 certainly bear comparison with the charges made against Gen Pinochet. For example, on the June 1982 abduction and murder of the three judges and the retired Major, the National Reconciliation Commission concluded that without the “express orders, or tacit approval” of Flt Lt Rawlings, “the operational pass would not have been issued to Amedeka and his gang,” to able to breach the national curfew at the time to abduct the four people.
“The truth was that the murderers knew that they were on an assignment which had the blessing of the PNDC.” It continued: “For a decision of such moment, Rawlings looked to a small coterie of advisors which included Capt Kojo Tsikata and Tsatsu Tsikata.”
The NRC also concluded that the murder of three famous fetish priests from the Volta Region in February 1982 by Lance Corporal Samuel Amedeka and others was also state sponsored. They described it as “a dress rehearsal for what was to happen on 30 June, 1982, when armed men led by L/Cpl Amedeka, abducted three High Court judges – Mr Justice Fred Poku Sarkodee, Mr Justice Kwadwo Agyei Agyapong and Mrs Justice Cecilia Koranteng-Addow (nee Gaisie) – from their homes.
“Also abducted was Maj Sam Acquah (retired), Director of Personnel of the Ghana Industrial Holding Corporation. They were abducted at night when a curfew was in force. The abducted persons were murdered in cold blood and the bodies set ablaze. On 3 July, 1982, the charred remains were found at the Bundase military range.”
The Ghanaians, whose identities are still under investigation, are not the first to institute such a class action on crimes against humanity in Belgium – although Belgium's controversial law allowing foreigners to be tried for crimes against humanity no matter where they took place. The law was slightly amended in 2003 after Israel's prime minister was sued in the country and to prevent US President George W Bush from being prosecuted for war crimes over the conflict in Iraq.
The law, enacted 16 June 1993, was intended to permit Belgian prosecutors and investigating judges to act on behalf of the international community to investigate the worst possible crimes imaginable when other national prosecutors and investigating judges in the states where the crimes were committed were unable or unwilling to do so and to request extradition of suspects to Belgium. The law gives Belgian courts universal jurisdiction over grave breaches of the Geneva Conventions and Protocol I and violations of Protocol II, all of which have been ratified by Belgium.
Under Section 34 of the Transitional Provisions in the Fourth Republic Constitution, “No member of the Provisional National Defence Council, Provisional National Defence Coucil Secretary, or other appointee of the Provisional National Defence Council shall be held liable either jointly or severally, for any act or omission during the administration of the Provisional National Defence Council,” which ruled from December 31 1981 to January 6, 1993. However, since the British House of Lords ruling in the 1998 landmark Pinochet case, the word has gone round that not even constitutionally guaranteed immunity can save a leader from crimes against humanity; that former dictators living in safe havens now travel abroad at their peril.
Fate of Africa's despots
Charles Taylor Ruled Liberia 1989-2003. Has been in Nigeria since and faces arrest if he returns
Mengistu Haile Mariam President of Ethiopia, 1974-91. In Zimbabwe Idi Amin Uganda's president 1971-79. Died in exile in Saudi Arabia in 2003 Jean-Bedel Bokassa President of Central African Republic, 1966-79. Exiled in Ivory Coast and France.
Died in 1996 Joseph Desire Mobuto Sese Seko President of Zaire 1965-97. Died in exile in Morocco in 1997 Gen Sani Abacha, of Nigeria died in June 1998, while in power.