This African Union (AU) that is expected to be an improvement on its predecessor, the Organisation of African Union (OAU), in terms of promotion of good governancy, transparence and justice on the African continent, is increasingly proving to be just the opposite. An instance: the 23rd Ordinary Summit of the AU held in Malabo, Equatorial Guinea, on June 20-27, endorsed amendments to its Protocol on the Statute of the African Court of Justice and Human Rights, a merger of the existing African Court on Human and People’s Rights and a proposed African Court of Justice. A key provision of the Protocol is immunity for serving heads of state and “senior state officials”.
The amendments to Article 46 of the draft protocol says, “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, during their term of office”. The amendments were drafted and approved by African justice ministers and attorneys general a month earlier at their meeting in Addis Ababa, Ethiopia.
Expectedly, the decision of the Malabo summit, though not effective until it is ratified by 15 heads of state, has been rejected by human rights groups across the continent for several reasons. First, they say the definition of “senior state officials” is ambiguous, and could include just anybody, “depending on their function”. Second, immunity, they argue, is a contradiction of the Rome Statute of the International Criminal Court (ICC) at The Hague. Most AU members have signed up to and ratified it. Article 27 (1) and (2) of the Rome Statute states that it “1)…shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.2)Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”
Third, it should be noted that the constitutions of most AU members already protect their political leaders from prosecution while they still hold office. Extending this to the continental level is increasing their“sphere of impunity”. Furthermore, it is argued that “If the African Court shields leaders from prosecution it will create contradictory legal norms and this will make the administration of justice for international crimes even more difficult”.
Fourthly, the AU makes a commitment in its Constitutive Act to “promote peace, security and stability on the continent and to protect human and peoples’ rights”. This is apposite to the proposed immunity for heads of state and senior government officials “purely because this immunity will perpetuate impunity”. Again, it would appear the mature advice of the AU Panel of the Wise has been ignored. Specifically, they defined impunity “as the manifestation of the absence of institutions that promote pluralism, participation, impartiality, accountability and fairness…”
The blunder the AU heads state made in Malabo was all the more grave because everyone knows for a fact that genocides, war crimes and crimes against humanity are committed by the state and its officials. The proposed immunity must not stand; we implore all progressive heads of state who stand for justice and good governance not to ratify it.
