Prosecuting the President of Sudan : a dispute between the African Union and the international criminal court

Abstract

South Africa's relatively peaceful transition from apartheid to democracy would not have been possible without the prevalence of a spirit of solidarity (ubuntu), not only within South Africa but across the continent, since it is largely due to African solidarity with the struggle against apartheid that an enabling environment for negotiation could be created. Therefore, the importance of including the unique and unprecedented solidarity rights of peoples in the African Charter on Human and Peoples' Rights cannot be emphasised enough. The rights of peoples - to existence, equality, self-determination, sovereignty over natural resources, peace and security, development and a satisfactory environment - were included in the African Charter for historical and philosophical reasons rooted uniquely in the African experience. The recognition of these rights has been resisted in other parts of the world along the lines of ideological division drawn during the Cold War. Solidarity rights, founded on the philosophy of African humanism, did not fit into the Cold War jurisprudential dichotomy, which featured, at the one extreme, the Western emphasis on liberty, rights and competition and, at the other extreme, the Eastern emphasis on equality, duties and compulsion. The solidarity rights rather represented an African emphasis on fraternity, reciprocity and compassion. African humanism has been applied in practice as a viable and valuable legal philosophy, particularly by the Constitutional Court of South Africa. Solidarity rights in the African Charter are similarly applicable as viable and valuable legal constructs, and therefore their precise contents and consequences may and must be explored through practical enforcement.