3 July 2014

Africa: Serving Leaders to Enjoy Immunity From African Court

African Union, AU leaders recently voted to grant immunity to sitting colleagues from prosecution for crimes against humanity, war crimes and genocide, by the proposed African Court of Justice and Human Rights, ACJHR, in a decision that has only come to light, news agencies reported on July 2, 2014.

Rising from the 23rd Ordinary Summit of Heads of State and Government in Malabo, Equatorial Guinea on June 27, 2014, they decided that the court, which was formally created by the African Union six years ago, will have no power to hear cases against sitting leaders and senior officials. The leaders also expanded ACJHR's scope from a civil tribunal for hearing human rights complaints to a full-fledged criminal court with authority to deal with serious matters such as genocide, crimes against humanity and piracy.

Article 46A bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights provides as follows: "No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior State officials based on their functions, during their tenure of office."

Observers suggest that the decision to broaden the court's authority is linked to complaints by several African leaders that the International Criminal Court, ICC in The Hague, The Netherlands, which deals with similar crimes, was singling out Africans as targets for prosecution. Currently, two sitting Presidents face prosecution at the ICC for crimes against humanity and other crimes. Kenya's President, Uhuru Kenyatta - alongside his deputy, William Rutu - is accused of involvement in the 2007 post-election violence in his country; while Sudanese leader, Omar al-Bashir, is accused of crimes against humanity in the Darfur region.

Proponents of the immunity provision argue that "guaranteed immunity for Presidents and senior officials might actually encourage African States to engage more enthusiastically with the new court and to abide by its rulings." On the other hand, its opponents say immunity will insulate those most responsible for international crimes as well as those in the best position to prevent them.


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