The possible return of former Ivorian president Laurent Gbagbo to the Côte d’Ivoire after his acquittal on charges of crimes against humanity might well be the catalyst for negotiations in that country, argues Thabo Mbeki.

On 28 May, 2020 the International Criminal Court (ICC) took decisions which are likely to have a meaningful impact on Côte d’Ivoire, West Africa and Africa as a whole. These decisions concern the future of Mr Laurent Gbagbo, former President of Côte d’Ivoire.

Mr Gbagbo served as President of Côte d’Ivoire from 26 October, 2000 until 2011.

During his Presidency, in September 2002, a civil war broke out in the country. This split the country into two. President Gbagbo and his government exercised power over the Southern zone while the rebel Forces Nouvelles controlled the Northern zone.

The war ended with the signing of an agreement between the government and the Forces Nouvelles in Ouagadougou, Burkina Faso on 4 March, 2007.

Ordinarily, Presidential elections should have been held in Côte d’Ivoire in 2005, following those of 2000. However the fact of the civil war and the division of the country made this impossible. In the end, when various preparations had been made, Presidential elections were held in October 2010.

Since there was no clear winner according to the Electoral Law, a second round was held in November 2010. The two candidates in this round were President Laurent Gbagbo and Mr Alassane Ouattara, who had been and was supported by the Forces Nouvelles.

A controversy started as to who had won these elections. The Independent Electoral Commission said Mr Ouattara had won. For its part, the Constitutional Council said President Gbagbo had won and proceeded to swear him in as President. Mr Ouattara refused to accept this, claiming that he was the rightful President.

The Ivorian Electoral Law prescribed that it was only the Constitutional Council which could announce the final election results. Accordingly President Gbagbo refused to vacate his seat.

Violent conflict ensued between the two contending parties, reportedly leading to the death of 3 000 people, mainly civilians.

The conflict ended on 10 April, 2011 when the Forces Nouvelles acting together with the French Licorne soldiers and the UN UNOCI peace keeping forces jointly launched a final assault against President Gbagbo.

Having been captured, President Gbagbo was then left in the hands of the Forces Nouvelles, which supported Mr Ouattara.

Mr Ouattara was then installed as President.

He held former President Gbagbo under arrest in Korogho, a town in the north, until he handed him over to the ICC at The Hague, Netherlands on 29 November, 2011.

During the same month, the then ICC Prosecutor, Luis Moreno Ocampo, charged Mr Gbagbo with four counts of crimes against humanity.

Mr Gbagbo was later joined as a fellow accused by Charles Blé Goudé, a leader of the Youth League of Mr Gbagbo’s party, the FPI. He was arrested in Accra, Ghana on 17 January, 2013, deported and detained in Côte d’Ivoire. He was transported to The Hague on 21 March, 2014.

He was also charged with four counts of crimes against humanity and was later joined in one case with Mr Gbagbo on 11 March, 2015.

The two finally went on trial on 28 January, 2016, more than four years after Mr Gbagbo arrived at The Hague.

The two were finally acquitted on all charges on 15 January, 2019, with the court ordering their release.

ICC consistently refused to grant bail

On the face of it this meant that Mr Gbagbo could leave prison, having stayed for seven years in jail at The Hague and an additional seven months under house arrest in Côte d’Ivoire.

During the course of his trial, Mr Gbagbo had applied for release on bail. To meet the requirements of the ICC, both Uganda and Rwanda had agreed to host Mr Gbagbo while he was on bail. However, the ICC consistently refused to grant the requested bail.

It is also important to note that during the trial, through its Chairperson, President Joaquim Chissano, the Africa Forum (AF) of former African Heads of State and Government, and other African leaders, wrote to the then new ICC Prosecutor, Ms Fatou Bensouda.

The AF assured Ms Bensouda that it was convinced that Mr Gbagbo was not guilty of any of the charges she and her predecessor, Mr Ocampo, had preferred against him. It presented an argument to substantiate its claim, telling her that a fair trial would result in his acquittal.

Former Ivory Coast President Laurent Gbagbo gestures as he enters the courtroom of the International Criminal Court in The Hague. (AFP)

AFP

The Forum explained to Ms Bensouda that Côte d’Ivoire faced an urgent challenge seriously to address the task, after the civil war, of achieving national reconciliation and national unity. It said that the realisation of these objectives required Mr Gbagbo’s involvement and active participation.

It warned that the grave danger confronting Côte d’Ivoire and Africa as a whole was that the continued failure to address the Ivorian challenge of national reconciliation meant that the country could slip back into a civil war which would cost many innocent lives.

The Forum therefore pleaded with the ICC Prosecutor, Ms Bensouda, to withdraw the charges against Mr Gbagbo and therefore allow him to return home to contribute everything in his power to the achievement of the said national reconciliation.

Needless to say, Ms Bensouda completely ignored President Chissano’s passionate plea!

As the AF had foreseen, and as we have said, the ICC acquitted Messrs Gbagbo and Blé Goudé in January 2019. This should have resulted in their release.

Granted conditional releases

However, the ICC Prosecutor, Ms Bensouda, immediately informed the court that she intended to appeal against the acquittal. She then requested that the court should order Messrs Gbagbo and Blé Goudé to remain in prison so that they would be available during the appeal process. She argued that both of them were flight risks.

However, the court found it difficult to accept the very strange proposition that it could order the detention in prison of people it had found had not committed any of the alleged crimes for which they had been brought to The Hague!

Nevertheless the court sought to satisfy Ms Bensouda’s request by granting Messrs Gbagbo and Blé Goudé conditional releases.

Some of those conditions, imposed on 1 February, 2019 were that the former accused agreed:

• To sign an undertaking that they will abide by all instructions and orders from the Court, including to be present at the Court when ordered, and accepting that the proceedings before the Appeals Chamber may proceed in their absence, should they fail to appear before the Court when ordered to do so;
• To provide the address in the receiving State and contact information to the Court and the receiving State and request authorisation from the Court for any change of address;
• Not to travel beyond the territorial limits of the municipality of the receiving State without the explicit and prior authorisation of the Court;
• To surrender all identity documents, particularly their passports, to the Registry;
• To report weekly to the law enforcement authorities of the receiving State or the Registry; and,
• Not to make any public statements, directly or through any other person, about the case or be in contact with the public or speak to the press concerning the case

The ICC then agreed that Belgium and the Netherlands would be "the receiving States". Accordingly, Messrs Gbagbo and Blé Goudé have had to stay in Brussels and Holland respectively ever since their release in January 2019, not allowed to travel out of these countries.

Judgment by ICC Appeals Chamber

Mr Gbagbo challenged the very idea of imposing conditions on people who had been acquitted, demanding his immediate and unconditional release, while Mr Blé Goudé appealed against some of the conditions.

In its Judgment delivered on 28 May, 2020, the ICC Appeals Chamber said, among others:

"In applying the 'compelling reasons' standard, the Appeals Chamber found, as argued by the Prosecutor, that there was 'a sufficient factual indication that Mr Gbagbo and Mr Blé Goudé might abscond if released unconditionally'. The Appeals Chamber concluded that the risk of flight could be mitigated by imposing conditions on release and that 'there [were] compelling reasons to exercise its powers under the Statute to impose conditions on Mr Gbagbo and Mr Blé Goudé'."

It therefore withdrew the previous conditions which had required Messrs Gbagbo and Blé Goudé:

• Not to travel beyond the territorial limits of the municipality of the receiving State without the explicit and prior authorisation of the Court;
• To surrender all identity documents, particularly their passports, to the Registry;
• To report weekly to the law enforcement authorities of the receiving State or the Registry;
• To abide by any additional reasonable conditions imposed by the State of release.

Effectively, the significant change brought about by the ICC Appeals Chamber is the lifting of the condition that Messrs Gbagbo and Blé Goudé should be restricted to Belgium and the Netherlands respectively, pending the hearing of the appeal which the ICC Prosecutor has undertaken she will make against their acquittal.

This means that they are free to return home to Côte d’Ivoire!

At the same time, the reality is that both of them have 20-year prison sentences hanging over their heads should they return to Côte d’Ivoire.

Tried in absentia, Mr Gbagbo, and some of his then Ministers, was found guilty of having "robbed" the West African Central Bank (BCEAO) during the conflict following the 2010 Presidential elections, and sentenced to 20 years. The sentence was confirmed on appeal, in October 2019, months after his acquittal at the ICC.

Also tried in absentia, Mr Blé Goudé was sentenced to 20 years in December 2019 by an Ivorian court, on the basis of charges similar to those for which he was indicted and acquitted at the ICC.

Seize the moment!

There are two other matters we must bear in mind as we consider these developments.

One of these is that the next Presidential elections in Côte d’Ivoire are scheduled to take place in October 2020. There is much speculation about who will stand as the Presidential candidates! However President Ouattara has said he will not stand.

President Ouattara’s government has already said that any re-entry by Laurent Gbagbo in Ivorian politics would destabilise the country!

The other important development is that two of the most senior Ivorian political leaders, Messrs Laurent Gbagbo and Henri Konan Bédié, and their respective parties, the FPI and the PDCI-RDA, have formed a coalition and pledged to work together to facilitate national reconciliation and national unity!

Mr Bedie, himself a former President of Côte d’Ivoire, supported Mr Ouattara during the 2010 and 2015 Presidential elections and his party served in the Ouattara governments in coalition with President Ouattara’s RDR.

Mr Guillaume Soro is another important Ivorian political leader. Mr Soro served as the effective political leader of the rebel Forces Nouvelles. He therefore opposed then President Gbagbo and supported Mr Ouattara.

When the latter took over as President of Côte d’Ivoire, Mr Soro served as Speaker of the National Assembly. The Constitution at that time provided that the Speaker was second only to the President in terms of seniority. Others of Mr Soro’s colleagues served in the Ouattara government.

However, Mr Soro fell out with President Ouattara in January 2019. As a consequence of this Mr Soro resigned from his position as Speaker of the National Assembly.

Central to these developments was that President Ouattara had formed a new political party, the Rally of the Houphouëtists for Democracy and Peace (RHDP). He wanted Mr Soro and his political associates to join this new formation. Mr Soro declined the invitation, earning the wrath of President Ouattara.

Incidentally, Mr Henri Konan Bedie and his PDCI party also refused to join the RHDP and parted company with President Ouattara.

After he left his position as Speaker of the National Assembly, Mr Soro left the country and took up temporary residence in Spain. He then decided to return to Côte d’Ivoire in December 2019 to launch his own political party, the Generations and People in Solidarity (GPS), preparatory to the October 2020 Presidential elections.

However, on December 23, as Soro was in the air, the Ivorian authorities issued an international arrest warrant for him, accusing him, among others, of embezzlement and involvement in a "conspiracy against the authority of the State". To avoid arrest, Mr Soro had to divert his plane to land in Accra, Ghana. He then flew back to Europe.

Tried in absentia, Mr Soro was found guilty. He was sentenced to 20 years imprisonment, a fine of US $7.6 million and other sanctions.

Accordingly, three of the Ivorian political leaders who are currently out of the country, Messrs Gbagbo, Soro and Blé Goudé, with the first two being very senior, face the possibility of each being imprisoned for 20 years if they return to Côte d’Ivoire!

The AU Peace and Security Council (AU PSC) held a Summit Meeting on Côte d’Ivoire on 10 March, 2011. In the Communique it issued it “(reaffirmed) its conviction that the post-electoral crisis in Cote d’Ivoire requires an overall political solution that preserves democracy and peace, and promotes lasting reconciliation among all Ivorians…"

The Africa Forum followed up on this call by the AU PSC by writing a letter to Ivorian President Alassane Ouattara dated 19 December, 2011. The Forum said:

“…We were very disturbed that last year’s presidential election ultimately resulted in bitter conflict which cost many lives and which has obviously taken Côte d’Ivoire further away from the objectives we consider fundamental for the achievement of the goal of national unity and reconciliation. It is precisely because of this that we share the view that Côte d’Ivoire needs such national unity and reconciliation now more than ever before.

“We are concerned that any delay in moving the reconciliation agenda forward may undermine the new democratic dispensation ushered in by the recent legislative election. We make these comments, Your Excellency, because we are deeply troubled by the fear that in the absence of genuine national reconciliation, to which you are committed, Côte d’Ivoire could once more, in time, slide into a civil war."

Nine years have passed since both the then serving and former African Heads of State and Government called on the Government and people of Côte d’Ivoire to come together, negotiate and agree on a new order for their country which would guarantee democracy, peace, national reconciliation and national unity.

It may very well be that the return home of Mr Laurent Gbagbo, after the ICC varied the conditions for his release, may very well be the moment when, at last, the Ivorians will get together to negotiate and agree on a new order for their country which would indeed guarantee democracy, peace, national reconciliation and national unity!

There is no doubt that the ordinary citizens of Côte d’Ivoire would happily celebrate such an eventuality in their millions!

Neither is there any doubt that all Africa, in all its 55 States, would also celebrate with great emotion the day when the esteemed leaders of the sister people of Côte d’Ivoire would proclaim that – we the people of Côte d’Ivoire have agreed on a new State design which guarantees democracy, peace, national reconciliation and national unity for our country!

The time has come that the leaders of Côte d’Ivoire courageously seize the moment to cross the Rubicon!

- Thabo Mbeki was president of South Africa from 1999 to 2008.