An international legal drama is playing itself out in the Senegalese capital Dakar, against the backdrop of the Monument for the African Renaissance. Main characters in no specific order: Hissène Habré, former president of the central African state of Chad, Abdoulaye Wade, president of Senegal, the African Union, Belgium, lawyers and human rights groups. At issue: can an African state put a former head of another African state on trial for crimes against humanity?

By Bram Posthumus

This month sees the tenth anniversary of a unique action against the former head of an African state. In late January 2000, seven citizens from the republic of Chad walked into a court in the Senegalese capital Dakar and charged their former president Hissène Habré with torture. Ten years on, the frustration about the time it takes to get anything done is palpable. ‘It’s a shame for Senegal,’ says Jacqueline Moudeina, a lawyer and human rights activists from Chad. She has been campaigning long and hard to have Mr Habré tried. ‘Senegal was the first African country to ratify the UN Convention against Torture. Everything is in place to get this trial underway: the judges, the lawyers, the venue. These delays make them look bad.’

Hissène Habré, now 67, has been living under house arrest in Dakar since fleeing Chad in 1990. In April 2009, the Senegalese authorities promised the International Court of Justice in The Hague that he would not be leaving Senegal. But why are things moving so slowly? Answering that question in full requires us to dig into a bit of history.

Chad’s violent past
Like Senegal, Chad is a former French colony that has been independent since 1960. Unlike Senegal, however, Chad has been at war with itself for the last 45 years. Numerous factions led by hugely ambitious politicians and warlords have been fighting each other since 1965. Hissène Habré used to lead one of those factions, the Northern Armed Forces.

Early in 1982, Habré began a march on the Chadian capital N’Djamena where he aimed to overthrow a Lybia-backed government. Six months later Habré cruised victoriously into the city, thanks to large-scale financial, logistical and military support of the USA, France and Sudan. All were, at the time, sworn enemies of Lybia’s self-proclaimed Guide, Muamar Ghadaffi.

Habré went on to rule Chad in the way he had conquered it: with an iron fist. He remained in power until 1990, when he was overthrown by his former army commander Idriss Déby. Habré fled to neighbouring Cameroon while his former mentors in Washington looked for a more permanent place to keep him. They found it in the quiet Dakar suburb, where he has been ever since.

Between 1982 and 1990, Habré is alleged to have been responsible for the deaths of an estimated 40,000 people, murdered on his watch by a massive security apparatus. Some 200,000 may have been tortured. In 2001, a Human Rights Watch team came across a secret service archive and found detailed information about more than one thousand deaths and more than ten thousand torture victims.

The Pinochet precedent
But how to bring Habré to account? Well, there was a precedent: the case of the former Chilean dictator Augusto Pinochet. International action to have him tried for massive human rights violations gathered pace in the 1990s, mostly thanks to Spanish judge Báltazar Garzón, who requested the United Kingdom to extradite Pinochet to Spain. He was arrested in October 1998, when visiting the UK for medical checks.

Over a year later, Chadian, Senegalese and international human rights activists indicted Habré in that Dakar courtroom. They were hoping that Senegal would use the same principle of international jurisdiction as Garzon had done with Pinochet. Initially, this seemed to be the case. In February 2000, investigating Judge Demba Kandji indicted Habré for complicity to torture.

But then politics took over. In March, Abdoulaye Wade was elected president and appointed Madické Niang - one of Habre’s lawyers - as his legal advisor. Within a few months, the case had been strangled to death. Judge Kandji was removed from the Habré dossier and the highest court of the land later decided that universal jurisdiction did not apply in this case. “Wade had become a member of the trade union of heads of state,” Moudeina drily remarks.

However - things did not end there.

The AU steps in
Following Senegal’s action to throw the case out, three torture victims who had become Belgian citizens turned to that country’s judiciary. Belgian law had a similar provision to Spain and in September 2005, Belgium lodged an extradition request with the Senegalese authorities.

But one year later, something more important happened. The African Union stepped in and mandated Senegal to put Habré on trial, “in the name of Africa”. A hugely important move: Africa was taking matters of human rights violations into its own hands, in spite of the existence of the “trade union of heads of state”. Senegal complied and used the following two years to adjust its penal code and constitution to bring the possibility of a Habré trial on the grounds of crimes against humanity within its legal remit.
But once again, nothing substantial happened. Until now. Why?

Politics, money and the international picture
Madické Niang is still a highly influential figure in president Wade’s government. Campaigners believe Habré left Chad with up to 11 million dollars. Reed Brody, a veteran campaigner for Human Rights Watch, thinks that he may well have used some of this money to buy influence and protection in Senegal.

Says Jacqueline Moudeina, “we needed to work on public opinion in Senegal. This is why we went to Dakar...and let some of Habré’s victims tell their story.” The International Committee for a Fair Trial of Hissène Habré started challenging prevailing views in Senegal: the idea of putting Habré on trial was dreamt up by the West; the campaigners had been bought by Habré’s opponents; Senegal’s traditional hospitality proscribed any legal action against its guest – and so on. Modeina hopes that some headway has been made in changing these ideas.

Human rights campaigners maintain that Senegal is using the finance argument as an excuse to further delay proceedings. Reed Brody: “Senegal says it needs €27 million. They are yet to make a credible budget. Last December there has been a joint EU-AU delegation to Dakar and I expect them to come up with a budget soon. And then we’ll see how much progress there will be.”

Meanwhile, Habré has launched his own legal action against Senegal at the increasingly influential ECOWAS Court of Justice, charging that Senegal has violated his right to a fair trial.

Internationally, eyes would naturally be trained on Libya, still ruled by Habré’s enemy and former AU president Ghadaffi. Wade has hinted that he’s ready to deliver Habré to Libya, but Tripoli isn’t interested, says Reed Brody: “I have been to Libya a few times and I have never come across any evidence that they are willing to become involved.” The same applies to the wider international community. “We would really like the African Union, the EU and others to press Senegal harder for this trial to go ahead,” says Moudeina. But will they?

There is widespread African irritation at the ICC’s perceived bias against the continent. AU Commission chairman Jean Ping recently cited the case of Habré as a clear example of the need for an African court of law. But Brody argues that the victims cannot wait for this. “Two of the original complainants have died. And with each year that passes, fewer victims will see justice. This is a golden opportunity to show that an African court can do justice in a case like this.”

Download the print version of the International Justice Tribune 99 (PDF file)

Subscribe to the International Justice Tribune