On June 27th at the 23rd AU Summit in Malabo, Equatorial Guinea, the General Assembly surreptitiously adopted draft legal instruments giving immunity for Heads of State and government at the African Court of Justice and Human Rights.
The immunities article (Article 46A bis "Immunities") states that:
"No Charges shall be commenced or continued before the court against any serving AU head of state or government or anybody acting or entitled to act in such capacity or other senior state officials based on their official functions, during their tenure in office."
Most notable about the structure of this particular article is the ambiguity in relation to exactly who is liable for prosecution. In totality, the article gives immunity to just about every senior government official in every government of every member state of the AU.
The clause not only completely weakens the jurisdiction and ultimate purpose of the African Court of Justice and Human Rights, but makes an utter mockery of the entire reason for expansion of the court to include prosecution of individuals for war crimes and crimes against humanity.
Steve Arther Lamony, Senior Adviser - AU, UN and Africa Situations at the Coalition for the ICC (CICC) put it most succinctly:
“This outcome is disgraceful. The principle of no immunity for grave crimes before international tribunals or courts - no matter the status of the offender - is crucial to the fight against impunity and part of the foundation of the Rome Statute of the ICC, which most African states have signed and ratified. African members of the ICC should bear that in mind and not ratify this protocol. Africa should be moving forward in the fight against impunity, not retrogressing!”
Such a move by the AU goes directly against its own efforts, through the Peace and Security Council, to stabilize these countries and bring about constitutional order. There certainly can be no peace without justice.
“At a time when the African continent is struggling to ensure that there is accountability for serious human rights violations and abuses, it is impossible to justify this decision which undermines the integrity of the African Court of Justice and Human Rights, even before it becomes operational,” said Netsanet Belay, Amnesty International’s Africa Director for Research and Advocacy.
Indeed, the very creation and adoption of the clause exacerbates many conflict situations. It gives free reign to perpetrators of grave crimes in the knowledge that as long as they retain power they will not be held accountable.
“Accountability is surely needed in countries like the CAR and South Sudan if they are to return to peace. Under the AU’s proposal, however, government leaders would be beyond the reach of justice even if they were found to have directed alleged atrocities,” says Lamony.
WORRIED ABOUT THEIR OWN FATE
The adoption of such a protocol seems to be only the tip of the iceberg when it comes to the apparent reluctance of the African Union to commit to the pursuit of justice for African citizens.
The African Court not only faces the challenge of restrictive and harmful legal instruments that impede its jurisdiction, but also the challenge of funding a matter that severely limits the ability of the court to function.
The matter of funding for the court in turn hinges on the political commitment from the member states and the heads of state and government. It is quite a conundrum.
"This amendment is a law to shield the strong and the powerful; it does nothing to protect the victims of horrendous crimes in Africa," said Carla Ferstman, the Director of REDRESS. "Not surprisingly, the decision comes at a time when two sitting presidents and one former president are facing charges for serious human rights abuses at the International Criminal Court."
The inclusion of an immunities clause makes the argument for an African Court similar to the ICC null and void, given that the AU is yet to show the slightest commitment to its own justice agenda.
"This decision calls into question the African Union's commitment to ensuring justice for victims of serious crimes such as war crimes, crimes against humanity and genocide," added Ferstman. "At a time when the African continent is grappling with accountability for massive violations, one should wonder why some leaders instead of cooperating to ensure justice, would want to give themselves immunity unless they are worrying about their own fate."
The International Criminal Court is intended to be a complimentary court to regional international tribunals, but with the inclusion of such a broad and ambiguous clause, there can be no complementarity between the ICC and the African Court. According to Mr Lamony:
“In its current form, the Rome Statute of the ICC is only complimentary to national criminal jurisdictions. Kenya and South Africa submitted an amendment suggesting that the ICC should also be complimentary to regional criminal jurisdictions, but if the expanded African Court gives immunity to heads of state, it will in an important sense not be complimentary to the ICC, because it will be unable to prosecute the most powerful perpetrators of grave crimes.”
Moreover, the broad description means that one cannot determine who is a senior member of government and who is not, leading to a situation where immunity can be granted at the mere behest of a person’s official title.
The immunities clause goes against the AU Constitutive Act, as well as the constitutions of several member states and protocols of regional bodies. Steve Lamony explains:
“The new protocol would also be in contradiction to many AU members’ own constitutions that do not allow immunity, e.g. Kenya Article 143(4) and the Protocol for the Prevention and the Punishment of the Crime of Genocide, War Crimes and Crimes against Humanity and all forms of Discrimination of the International Conference of the Great lakes region.”
The immunities clause in the draft protocol of the African Court, quite simply, has dealt the ultimate blow to the court.
It is the culmination nearly 18 years of reluctance by the AU to form any regional functional judicial system, where the people of Africa can seek legal duress against regimes that commit crimes against humanity.
As it stands now, the survivors and victims of atrocities will be forced to seek justice from other international tribunals, hopefully none of which will contain any sort of “African solution.”