Kenyans for Peace with Truth and Justice (KPTJ)Recently African Union Attorneys General and Ministers of Justice met in Addis Ababa, Ethiopia to discuss the draft protocol expanding the jurisdiction of the African Court of Justice and Human Rights which aims to give it power to prosecute international crimes.
One of the key outcomes of their discussions was to amend the draft protocol to include immunity for heads of state and senior government officials from prosecution for international crimes during their tenure. The draft protocol is now likely to be debated and adopted by the AU heads of state during their forthcoming summit scheduled to take place in Malabo, Equatorial Guinea, later this month.
The move to grant immunity to heads of state and senior officials alleged to have committed gross human rights violations is an unwelcome development that is likely to perpetuate impunity in Africa. It is an unfortunate clawback on a fundamental principle of international criminal justice.
Since the Second World War, international law has progressively recognised that gross human rights violations committed in the context of civil conflict usually have a political element and implicate individuals who may already be in power or may subsequently seize power. That is why the Rome Statute that created the International Criminal Court states unequivocally that official capacity is irrelevant when it comes to holding suspects accountable.
Likewise the statutes that created the International Criminal Tribunals for Rwanda and Yugoslavia as well as the Special Court for Sierra Leone and all other accountability mechanisms that seek to address legacies of gross human rights violations such as genocide, torture or enforced disappearances state clearly that impunity is not an option regardless of the official capacity of a suspected perpetrator. The AU’s own Constitutive Act similarly commits itself to the fight against impunity on the continent.
The amendment to give immunity to heads of state and senior officials therefore purports to ignore over half a century of developments in international human rights and criminal justice law. It attempts to take Africa back to the dark ages in which states could kill and terrorize their own populations without consequence as long as it was their political leaders who were doing the killing and the torture. Not only does it offend international law, it also contradicts our own constitution, which provides in Article 143 (4) that immunity of the President from criminal prosecutions does not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.
In their rhetoric, African leaders suggest that the move to give the regional court criminal jurisdiction is a good faith effort to fight impunity on the continent in accordance with Article 4 (h) of the AU’s Constitutive Act. However, it is obvious even to the most casual observer that what they are doing is creating a court whose primary purpose is to shield powerful individuals from justice at the expense of victims. It is precisely because African victims of mass atrocities had nowhere to turn for protection against unaccountable leaders and warlords that the international community, with Africa’s full participation and support, created the ICC as a court of last resort to investigate and prosecute cases where member states were either unwilling or unable to prosecute.
The AU has frequently accused the ICC of targeting Africa. But in truth, this latest move demonstrates only too clearly that it is not the ICC that targets Africa, but it is African leaders who target African peoples thereby forcing them to reach out to the ICC for justice when all options at home are closed to them.
It has been suggested that the proposed immunity for heads of state and senior officials is not substantive, but only postpones the time when a serving head of state may be indicted until after they have left office. However, in states that have weak judicial systems, non-existent or ineffective witness protection agencies, and where witnesses’ lives are put indefinitely on hold sometimes following relocation to unfamiliar foreign countries, proposing that a trial be put on hold for five or 10 years in the case of a head of state, or indefinitely in case of senior officials without term limits, will have the practical effect of permanently postponing the quest for justice. Immunity will mean impunity. It will therefore be a sad day for Africa and African victims of mass human rights violations when African heads of state adopt the draft protocol with its most recent amendment.
*The writer is a human rights lawyer and Program Advisor to Kenyans for Peace with Truth and Justice (KPTJ).
– See more at: http://www.the-star.co.ke/news/article-170300/granting-presidents-immunity-wrong#sthash.jJloeW75.dpuf
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