This contradicts the political stance of the AU regarding the provision of justice on the African continent.
This amendment could be adopted at the upcoming 23rd Ordinary Session of the AU Summit in Malabo, Equatorial Guinea.
Of particular concern is the decision to ignore the many pleas from civil society and human rights organizations who appealed to the African Union on this matter. In a letter to the African Union in May 2014, 19 civil society organizations wrote to the Justice Ministers and Attorney Generals:
“The irrelevance of official capacity is at the core of making accountability for the gravest crimes meaningful. The alternative would carve out a sphere of impunity for high-level perpetrators, and create an incentive for such perpetrators to hold on to power indefinitely. Such impunity is further inconsistent with the needs of victims and ensuring justice for the gravest crimes.”
It seems that the African Union has a serious challenge ensuring the actions of its member states keep in line with the Constitutive Act of the African Union. Under Article 4 (o) of the Act, the AU is mandated to adhere to “respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities.”
As it is, at least 15 member states are currently in a state of conflict, and it is alleged that severe atrocities are being committed by both governments and insurgent groups.
The most devastating conflict currently receiving global attention is in the Central African Republic (CAR), where it is estimated that thousands have been killed in bloody sectarian violence that has seen the worst atrocities committed, including cannibalism in some instances.
Hot on the heels of the CAR conflict is the recent uprising by rebel groups allied to former deputy President Riek Machar in South Sudan. Severe atrocities have been reportedly committed by both government and rebel groups in a conflict said to have taken on ethnic dimensions. Despite several attempts at a ceasefire, the two parties to the conflict have yet to bring the war to a decisive end, and only recently signed an agreement to that effect on 6th June, 2014.
It is quite disconcerting, therefore, for the AU to proceed with an intention to set up the African Court of Justice with a clause to provide immunity for heads of state, a matter that is also contrary to Article 4 (h) which states that the AU has “the right to intervene in a Member State pursuant to a decision of the General Assembly in respect of grave circumstances namely: war crimes, genocide and crimes against humanity.”
The most insidious thing about the proposed amendment is not just that it is likely to be adopted by the General Assembly, but that it is the very heads of state seeking immunity who will adopt it.
Despite the seemingly well-intended legal instruments put together to formulate the African Court of Justice, it is now becoming clear that the AU is not only incapable of following through with its own decisions to seek justice for victims, but also that no successful prosecution of state government or individuals will occur in tandem with the political objective of such an amendment.
Whereas the AU and its member states repeatedly wax lyrical about seeking an “African Solution” to various peace, security, justice and human rights concerns, they actively remove the possibility of any form of accountability on the part of governments or heads of state.
This state of affairs leaves the very intention behind the push for the African Court of Justice open to question. What is the point of having a court that cannot prosecute?
Perhaps the answer lies in the ongoing political war being waged between the AU and the International Criminal Court.
In the meantime, for the millions of victims of human rights abuses, justice from the AU remains elusive.