Together, let us strive to build an African continent where the flames of conflict are extinguished, and the light of justice shines brightly for all—MDF Brigadier General Prof. Dan Kuwali

Brigadier General Kuwali (2nd left) addressing the distinguished delegates

* For in the end, it is not only the fate of Africa that hangs in the balance but the collective destiny of humanity itself

* It is imperative that we reflect on the profound impact of conflict on the African continent and the role of legal frameworks in promoting peace and justice

By Duncan Mlanjira

In his keynote address at the 10th Forum of the African Union Commission on International Law (AUCIL) in Addis Ababa, Ethiopia on May 20, Malawi Defence Force (MDF) Brigadier General, Prof. Dan Kuwali delivered a moving speech, who concluded by saying:

“Together, let us strive to build an African continent where the flames of conflict are extinguished, and the light of justice shines brightly for all. For in the end, it is not only the fate of Africa that hangs in the balance but the collective destiny of humanity itself.”

Brigadier General Kuwali is the Commandant of Malawi’s National Defence College and former MDF Chief of Legal Services & Judge Advocate General.

He is also Professor of International Law and International Relations at the University of Pretoria and an Affiliated Professor at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund University.

He is also an author and his publications include:

The Palgrave Handbook of Sustainable Peace and Security in Africa(2022);

Forceful Intervention for Protection of Human Rights in Africa – International Law – Oxford Bibliographies (2020;

By All Means Necessary: Protecting Civilians and Preventing Atrocities in Africa (2017);  

Africa and the Responsibility to Protect: Article 4(h) of the African Union (2016); and scores of  other peer-reviewed  monographs, book chapters, and articles and blogs.

We bring you his speech in verbatim he made before the AU delegates led by AUCIL chairperson, Professor Kevin Ndjimba; vice-chairperson, Dr Bélibi Sébastien DAILA, AU legal counsel, Professor Hajer Gueldich, representative of the AU Ambassador Commission, Tordeta Ratebaye, amongst other distinguished participants, saying:

It is a privilege to address you today on the critical issues of international law, alternative justice, and armed conflict in Africa. As we gather here, it is imperative that we reflect on the profound impact of conflict on the African continent and the role of legal frameworks in promoting peace and justice.

Given the interconnected global village that this world has become, the problems that confront Africa are not localised; rather, they ripple across borders, with contagion transcending communities and nations far beyond their immediate vicinity.

Today, we stand at a crossroads where our collective actions can (and should) shape the trajectory of the continent’s future, steering it towards a path of stability, prosperity, and dignity for all its inhabitants.

Chairperson and esteemed colleagues, the scars of armed conflict run deep in Africa, with millions of lives lost and communities torn apart by violence.

From the civil wars in Sierra Leone and Liberia to the ongoing conflicts in the Democratic Republic of the Congo and South Sudan, among other conflict epicentres, the consequences of warfare are devastating. Therefore, it is imperative to recognise the human cost of conflict and the urgent need for sustainable solutions.

Yet, amidst these harrowing realities, stories of resilience and hope emerge from the most unlikely of places. The story of Rwanda in 1994 and Kenya 2007/8 have shown that communities shattered by conflict can come together to rebuild — demonstrating the unwavering human spirit in the face of adversity.

It is these stories that remind us of the resilience of the African people and the potential for a brighter tomorrow. International law, particularly humanitarian law, serves as a cornerstone for regulating armed conflicts and upholding fundamental human rights.

Treaties such as the Geneva Conventions and the Rome Statute of the International Criminal Court provide crucial guidelines for mitigating the impact of war on civilians and holding perpetrators accountable for their actions.

So, too, is the Malabo Protocol that seeks to establish the African Court of Justice and Human Rights (ACJHR), with jurisdiction over serious crimes in International Law.

However, the implementation and enforcement of these legal instruments face significant challenges, particularly in conflict-ridden regions where state institutions are weak or compromised.

For example, how do you explain the ambivalence of States to ratify the Malabo Protocol that seeks to protect their own people from atrocity crimes? Time is also of the essence, especially the speed with which we act in response to violations.

We saw in 2015 how the African Union initiatives were able to prevent a potential armed conflict in Burundi. We also witnessed how Economic Community of West African States (ECOWAS) thwarted the Gambian constitutional crisis in 2017.

We also noticed in 2012 that the African Union ambivalence in resolving the Libyan conflict was overtaken by the North Atlantic Treaty Organisation (NATO), and the coalition of the willing led to the current chaos in that country.

It cannot be denied that NATO’s intervention in Libya contributed to the mutation of the notion of the responsibility to protect (R2P). Neither can it be concealed that Article 4(h) of the AU Constitutive Act preceded R2P and remains a potent tool for preventing mass atrocities in Africa.

As you are aware, Article 4(h) grants the right to intervene in a Member State in the face of war crimes, genocide, and crimes against humanity. However, the question we face today is not simply how to react after atrocities have already occurred but rather how to prevent them from happening in the first place.

It is within this context that I coined the concept of ‘persuasive prevention’ in my doctoral thesis in 2009.

Persuasive prevention can be looked at as a proactive and graduated approach aimed at securing respect for human rights, humanitarian norms, and conflict prevention strategies through constructive engagement by civil society and the international community with potential perpetrators.

It calls for a concerted effort to intervene before the situation escalates into mass atrocities. The action that the Republic of South Africa took against the State of Israel in the International Court of Justice is a textbook case of persuasive prevention.

As such, the primary aim of Article 4(h) intervention should not solely be reactive; rather, it should be focused on prevention. Where mass atrocities are occurring, intervention should prioritise the protection of populations at risk and the pursuit of perpetrators to ensure justice and accountability in a manner that does not give room to impunity, cater for the needs of the victims and survivors, and deter potential perpetrators.

Distinguished ladies and gentlemen, in order to overcome the problems that Africa is currently facing, we need to strengthen the legal systems and promote an accountability culture that cuts across national boundaries.

Alternative justice systems have become important tools for resolving disputes and fostering reconciliation in African societies in the face of these obstacles.

Traditional techniques for resolving disputes, like community dialogues and restorative justice practices, provide culturally appropriate means of mending the scars of conflict and restoring trust among impacted communities.

The Gaçaça courts in the aftermath of the 1994 genocide in Rwanda and truth and reconciliation commissions, exemplified by the South African experience, have played a pivotal role in fostering national healing and acknowledging the atrocities of the past.

Moreover, these systems embody the principle of Ubuntu – the recognition of our interconnectedness and shared humanity – which lies at the heart of African philosophy.

By embracing Ubuntu, we can transcend the barriers of ethnicity, religion, and nationality, forging pathways to reconciliation and peace that honour the dignity of all involved.

The precursor of the AU, the Organisation of the African Unity (OAU) aptly entrenched the principle of uti possidetis ita possidat, preserving the sanctity of African borders as adopted at independence.

However, it is not a secret that several African countries have dragged each other to the International Court of Justice over boundaries, especially those endowed with resources.

The jury is still out on whether the principle of uti possidetis precludes renegotiating boundaries or political settlement by post-colonial independent States in Africa.

Nonetheless, if pan-African lawyers worked with political scientists, you would find that joint resource sharing between neighbouring countries would preserve the principle of uti possidetis and promote the African dream of regional integration.

Chair, distinguished colleagues, many countries today still face difficult governance questions, such as how can governments counter terrorism and cybercrimes without infringing on individuals’ right to privacy.

A related question is; how can security agencies strike a balance between confidentiality or secrecy and the citizens’ right of access to information? Another is how can we ensure parliamentary oversight of the defence and security organs in view of the lack of technical capacity of parliamentarians in this specialised sector?

However, the tragedy of Africa is not the paucity of laws nor the absence of lawyers but rather enforcement of the rule of law. Although the AU has prohibited unconstitutional changes of governments, its response to recent coups reflects a waning resolve to enforce anti-coup norms, which is one of its foundational principles, complete with sanctions against errant putschists.

While there cannot be a one-size-fits-all explanation for the proliferation of coups, the causal factors for coups include illiteracy and poverty, especially for vulnerable and marginalised populations, insecurity, poor governance, including endemic corruption and economic mismanagement, infrastructural deficit, poor socio- economic systems and institutions, and frustrated youths.

Africa has seen a renewed quest for accountable governance expressed itself in the streets, popular culture, the Internet, and social media. These youth-led popular protests have demonstrated against social injustice, fraudulent elections, grand corruption, and insecurity, demanding inclusion to participate in governance and a life of dignity as equal citizens.

As a result, African states should address youth socioeconomic exclusion and create conditions that support the five fundamental transitions for youth well-being, namely: education, employment, new lifestyle, family formation, and exercising citizenship.

To prevent coups, African governments should strengthen security sector governance by promoting civil-military relations, professionalism in the security sector, and democratic control over the armed forces.

We should also strengthen diagonal accountability by the civil society where African citizens should be empowered to reject unconstitutional changes of government as was the case in Sudan in 2022, and political leaders should commit to democratic processes anchored on the will and agency of the people as well as implementation of inclusive institutions of governance.

Honourable Commissioners, distinguished colleagues, Africa needs a cogent response as the international political system is moving toward multipolarity and as strategic competition among the major global powers intensifies in the areas of economics, security, and diplomacy.

It is not appropriate to force African leaders to choose between the East and the West. The continent is big enough and open for business so that both worlds may benefit. But those who should profit most from the strategic partnerships should be Africans at the grassroot level.

In line with the continental development agenda, African countries should chart their paths to ensure a win-win trade and investment partnership for all that align with their national visions.

Remember; Ghana’s independence leader Kwame Nkrumah inspired the continent to “face neither East nor West” but forward. We need more pan-African leaders who should push for increased access for African products to global markets and request an equal partnership with global powers to achieve these aspirations.

Looking ahead, it is essential to explore innovative ways to strengthen the impact of international law on conflict resolution on the continent. How do you explain the fact that 70% of ongoing conflicts in the world are in Africa yet the AU does not have a specialised body to oversee the Law of Armed Conflict on the continent!

Protecting populations from the scourges of war in Africa should not be left to the International Committee of the Red Cross (ICRC) alone. The AU should not just replicate organs of the United Nations (UN) but rather continue to establish institutions tailored to address challenges facing the continent progressively.

This should also include enhancing the capacity of legal institutions, promoting legal literacy among communities, and supporting local actors in implementing legal frameworks effectively.

Furthermore, there is potential for addressing the complexity of conflicts and guaranteeing all-encompassing peace-building initiatives through the integration of alternative justice systems with formal legal mechanisms.

Through the strategic integration of the two systems, we can establish a more robust and comprehensive framework for peace and justice in Africa.

Now, it becomes troubling to see that about 80% of the AU peace fund budget is contributed by foreign partners. This is why it is imperative to implement the 2017 Kigali Financing Decision to the letter to achieve financial autonomy and realise Ali Mazrui’s pax Africana — the quest for African problems to be resolved by African solutions using African resources.

External partners may not be as altruistic as we want them to be, as they may have their own agendas, too. More importantly, we need to address the root causes of conflicts.

Among the seven key aspirations listed in Africa Agenda 2063: ‘The Africa We Want’; one theme stands out as the key to Africa’s political and economic transformation — that is “an Africa of good governance, democracy, respect for human rights, justice and the rule of law.”

Even the former UN Secretary General, Ghana’s Kofi Annan, advised that “[good] governance is perhaps the single most important factor in eradicating poverty and promoting development.”

Thus, accountable governance is central to the achievement of all the 17 UN Sustainable Development Goals (SDGs). This is particularly clear in Goal 16, which requires States to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable, and inclusive institutions at all levels.

For example, in the context of the African Continental Free Trade Area (ACFTA), Africa cannot have free trade that creates wealth without governance systems that ensure that all trade within and across the continent is fair.

In all this, the rule of law plays a central role. Hence, African lawyers and jurists have the key to achieving sustainable peace and prosperity on the continent.

We also need more States to subject themselves to the African Peer Review Mechanism (APRM) to achieve a critical mass of accountable governance on the continent. As a New Partnership for Africa’s Development (NEPAD) component, the APRM is a voluntary initiative designed to promote structural conflict prevention through good governance.

Given the nature of the peace and security on the continent, the African Peace and Security Architecture (APSA) cannot, and should not, work in isolation. Rather, it must consistently and coherently coordinate with human rights institutions and organs meant to promote peace, security, and socioeconomic well-being of individuals on the continent.

Accountable governance entails responsible leadership, participatory citizenship, as well as free, fair, and just political representation. Accountable governance has the attendant attributes to improving the socioeconomic well-being of the population in terms of quality education, affordable health care, job creation, financial security, food security, and an effective criminal justice system that fights corruption and impunity.

In the spirit of African Solutions to African Problems, African states should resolve some of the ethical and governance issues stalling peace and clogging the wheels of growth and development on the continent.

Without governance frameworks that shield employees from exploitation, states are unable to provide jobs that lead to economic independence.

Food security cannot be attained by states unless they hold cartels responsible for distorting the market in order to shield farmers. Public office bearers who disobey their constitutional duties do so at their own risk.

The rule of law and accountability serve as a formidable and cutting edge against impunity. Institutional corruption cannot be defeated by States in the absence of impartial, independent oversight mechanisms that hold public officials accountable.

Thus, the cornerstones for realising the ‘Africa We Want’ are responsible governance and ethical leadership. The norm bearers for bringing this vision to reality are African lawyers and jurists.

Distinguished ladies and gentlemen, let’s reaffirm our commitment to promoting justice and peace in Africa. Through the religious ratification and enforcement of relevant international treaties, the development of alternative justice systems, and cooperative partnerships, we can move closer to a future in which cooperation will replace conflict and impunity will give way to justice.

Emboldened by the spirit of fraternity and solidarity, Africa boasts more multilingual and multicultural statesmen than any other continent in the world. Afro-diplomats, legal scholars, and policymakers have the power to make Africa a more peaceful, secure, and prosperous continent.

Together, let us strive to build a continent where the flames of conflict are extinguished, and the light of justice shines brightly for all. For in the end, it is not only the fate of Africa that hangs in the balance but the collective destiny of humanity itself.

I thank you, most sincerely, for your attention.