Trial of Chad’s ex-leader Hissene Habre offers test case for African justice

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On the nights when she wasn't being tortured with electric shocks or beatings, Fatime Sakine retrieved a hidden pen and wrote down the names of the prisoners who were led away for execution. She recorded the names on scraps of cardboard, folded them as small as possible, and hid them in a pipe in her prison cell.

By the end of her 15 months of imprisonment, she had documented the names of about 100 dead prisoners – just a few of the tens of thousands who were allegedly killed under the orders of Chad's notorious dictator, Hissene Habre, in the 1980s. It was an act of resistance, so that the dead would not be forgotten.

Three decades later, after a marathon fight for justice, Ms. Sakine will finally get her chance to confront Mr. Habre over those names on the scraps of cardboard. She will be a witness at Mr. Habre's trial — a historic test case for African justice and for the emerging principle of "universal jurisdiction" for crimes against humanity.

Mr. Habre, whose trial began in a Senegalese court in Dakar this week, is the first former ruler to be prosecuted by the courts of another country for alleged human-rights crimes. He is also the first African ruler to be put on trial under universal jurisdiction — the legal principle that led to an earlier failed effort to prosecute former Chilean dictator Augusto Pinochet under Spanish law.

Mr. Habre, refusing to accept the trial's legitimacy, had to be dragged into the courtroom by policemen on Monday as he screamed and struggled furiously. He covered his face with a white turban and sunglasses, as if afraid to show himself to the victims in the gallery. As the lengthy 187-page indictment was read out in court, including charges of torture and mass killings, Mr. Habre tried to disrupt the trial, shouting "lies" and "shut up, shut up, shut up."

In the courtroom, Ms. Sakine watched it all. "Hissene Habre was the absolute king in Chad, throwing people in jail, having them tortured as he pleased, and now he's acting like a spoiled child who won't take his medicine," she said. "He's just afraid of us and afraid of the truth."

Mr. Habre's prosecution in Senegal could become a model for the future of African justice. At a time when many Africans are denouncing the International Criminal Court for its failure to prosecute anyone except Africans, the Habre trial offers a glimpse of an alternate model, in which Africans are judged by African courts.

Unlike the ICC trials in The Hague, with their European courtroom and their unofficial exemptions for the superpowers, the Habre trial has been supported and authorized by the African Union. But this trial has been driven by the persistence of the victims themselves and their 25-year struggle for justice.

"I saw so many deaths," Ms. Sakine said in an interview in a seaside hotel in Dakar as she awaited her chance to testify. "I never thought I would see this trial. Habre was president, and he had a lot of money and power. But I am not afraid to look him in his eyes."

Ms. Sakine remembers every detail of her ordeal in the "Locaux" prison in N'Djamena, Chad's capital. Three times she was led away to be executed, only to be spared when the executioners argued and changed their mind. She remembers hearing the executioners casually praising the courage of a woman who did not cry as she was killed. And she remembers being strapped into a metal chair while electricity was pumped into it. "I screamed and I screamed. It was a very intense burning sensation. It makes you jump, and then you lose consciousness."

The trial of the former U.S.-backed dictator, accused of orchestrating the murder of 40,000 people and the torture of another 200,000, is scheduled to continue for at least two months, with testimony from about 100 victims and other witnesses. One scheduled witness is a Canadian forensic documents expert, Tobin Tanaka, who will testify about Mr. Habre's handwritten notes on secret police reports on the execution of prisoners. Those reports were discovered by human-rights lawyer Reed Brody in an extraordinary moment in 2001 when he pushed through the cobwebs of an abandoned headquarters of Chad's secret police.

"This trial shows that survivors and activists with tenacity and perseverance can actually organize to bring a dictator to justice in Africa," says Mr. Brody, a lawyer at Human Rights Watch who has been working with the victims since 1999.

"The survivors are the architects of an amazing accomplishment: coming out of prison and saying, 'We are going to seek justice' – and showing it's possible, even against a former head of state in Africa. The idea that these people are untouchable doesn't always have to be the case."

Africa's search for alternatives to The Hague is becoming increasingly urgent. After supporting the ICC in its early days, many African rulers are accusing it of hypocrisy, racism and bias against Africa. The United States, Russia and China have never been members of the ICC, and they have vetoes over any cases referred by the United Nations Security Council, so they and their allies in the Middle East and Asia have never been prosecuted.

South Africa, originally a strong supporter of the international court, is now threatening to withdraw from it. In June, in one of the worst crises for the court, South Africa ignored its legal obligations and refused to enforce an ICC arrest warrant against Sudanese President Omar al-Bashir, who has been indicted for war crimes and genocide.

Meanwhile, the ICC's prosecution of top Kenyan leaders for political violence and murder was shelved because Kenya's government refused to co-operate in providing evidence, while witnesses were intimidated and attacked. In another setback, Libya ignored the ICC arrest warrants for ex-dictator Moammar Gadhafi's son Saif, and his former intelligence chief, Abdullah al-Senussi. Instead, in July, a Libyan court sentenced them to death, without bothering to hear any evidence.

Other justice models have been tried, from the Truth and Reconciliation Commission in South Africa (which granted amnesties to perpetrators who confessed their guilt) to the Rwandan community courts that dealt with genocide cases. All have been flawed. Southern African leaders, for example, created a tribunal for regional cases – and then suspended the tribunal when it dared to rule against Zimbabwe on land seizures. The African Union is creating its own "African Court of Justice and Human Rights" – but its rules would grant immunity to all heads of state and senior government officials.

Many Africans hope the Habre trial could provide a better option. "This is Africa judging Africa," said Senegal's Justice Minister, Sidiki Kaba. "The perception of white man's justice must cease."

Some observers even suggest that Dakar could become the "Hague of Africa." Activists from Chad and the Democratic Republic of Congo are already seeking to bring two high-level cases to Senegal's courts under "universal jurisdiction."

But even the Dakar model is flawed. A judge in Senegal first indicted Mr. Habre in 2000, yet the case did not proceed for a dozen years, until a new president, Macky Sall, was elected in 2012 and supported the prosecution. Mr. Habre, who fled Chad with an estimated $28-million (U.S.) in looted money, was able to live in Senegal for 23 years, with the protection of influential Senegalese supporters, before he was finally arrested.

The concept of universal jurisdiction has been equally battered. It was endorsed by laws in Spain and Belgium, but then came under fire from countries such as the United States and China, fearing the potential threat to their own officials. The laws were weakened, and Mr. Pinochet was never brought to trial in Europe. But the Pinochet case inspired Chad's survivors to push ahead with their own case, and Senegal now has one of the world's leading universal-jurisdiction laws.

In 1984, at the age of 19, Rachel Mouaba saw her father tortured and executed in front of her eyes by Mr. Habre's soldiers. Then the soldiers gang-raped her. She has waited three decades for justice. "The trial is a great moment in my life," she said in Dakar. "Habre was a feared lion. We didn't dare to pronounce his name. But it is he who owes us the explanations now. The wheel has turned."

Another survivor, Clement Abaifouta, still doesn't know why he was imprisoned from 1985 to 1989, except that his uncle was an opposition supporter. He nearly died of hunger and illness in prison. Later he became the president of an association of Mr. Habre's victims, but was often harassed or detained by Chad's police because of his activism, and his offices were ransacked.

Mr. Abaifouta is still haunted by his prison memories. He was forced to become the prison's gravedigger, burying the dead prisoners in mass graves. For years he buried at least 10 bodies a day, and sometimes up to 40 a day.

It left him traumatized and numb. "It broke me," he said in an interview. "I still have holes in my memories. In the morning you would speak to people, and on that same night they would die and I would have to bury them."

This week he joined the other survivors in the gallery of the Dakar courtroom. "I want Habre to be in front of me, to answer why he did what he did."