analysisBy Jemima Njeri Kariri
As atrocities continue to be committed across Africa, the continent's leaders seem more concerned with their own fate before international courts than a rigorous pursuit of justice for these crimes.
It is hard to fathom that in 2014, commitments to end impunity are under threat by African leaders even though the continent has been ravaged by serious crimes for decades and the Constitutive Act of the African Union (AU) rejects impunity.
In adopting the draft protocol of the proposed African Court of Justice and Human Rights (African Court) at the recent AU Summit in Equatorial Guinea, African leaders have signed off on the establishment of a new court that will provide immunity from prosecution to serving heads of state and senior government officials for a range of serious crimes, including war crimes, crimes against humanity and genocide ('international crimes').
The adopted amendment to Article 46A of the protocol now reads, '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 a capacity, or other senior states officials based on their function, during their tenure of office.'
The decision to entrench immunity for heads of state and senior officials was agreed to despite African and international civil society cautioning against it. African leaders had previously taken the immunity debate to the international level during the 12th Assembly of States Parties (ASP) of the International Criminal Court (ICC) in November 2013.
African states parties to the ICC tabled a proposal on behalf of the AU for the Rome Statute to be amended to exclude sitting heads of state from prosecution for international crimes.
The ASP rejected this proposal, although indications are that the same proposal is likely to be tabled again at the December 2014 ASP. This determination to exempt serving heads of state from prosecution for the gravest crimes known to mankind is highly concerning for supporters of international justice.
Discussions in Africa relating to immunity for heads of state who are wanted for international crimes began in 2006, when France and Spain issued arrest warrants against high-ranking Rwandan government officials, which provoked strong protests from Rwanda and the AU.
The cases at the ICC of President Omar al-Bashir of Sudan, and Kenyan President Uhuru Kenyatta and his deputy, William Ruto, have reignited the debate. These concerns no doubt informed the AU's decision to mandate its Commission in 2009 to consider the possibility of expanding the jurisdiction of the yet-to-be-established African Court to also try international crimes.
It is against this backdrop that the new African Court protocol must be viewed.
Another problem with the immunity provision in the protocol is that it extends beyond heads of state to include 'senior government officials.' Who exactly qualifies as a senior government official would be decided based on their functions during their tenure, on a case-by-case basis and in accordance with international law.
This definition is imprecise and potentially offers immunity from prosecution to a wide range of officials.
The potential threat that this spells for the protection of human rights in Africa cannot be overstated. Granting immunity offers free rein to senior officials and heads of state to perpetrate such crimes, and is likely to motivate them to cling to their official positions to avoid prosecution.
Even more worrisome is that this has taken place at a time when atrocities continue in countries such as South Sudan and the Central African Republic. The immunity provision flouts international law and is contrary to the national laws of African states like Kenya and South Africa. It goes against the very essence of promoting human rights, peace and stability, and presents a major setback to advancing democracy and the rule of law.
Africa has extensive accountability mechanisms at the national and regional levels, and many countries have acceded to international legal treaties that promote accountability. An African Court that can try serious crimes is another positive step for the continent. However, the protocol that was adopted at the AU summit in Malabo provides a protective veil that denies justice for victims, and is detrimental to accountability.
Can the African Court truly protect Africans against grave crimes and human rights abuses while it provides such immunity? Considering the progress made in bringing those responsible for gross crimes to justice, African states are urged to reconsider the proposed amendments before ratifying the protocol.
For the African Court to begin its work, the protocol must be ratified by 15 AU states, which means there is still an opportunity for governments to reconsider. To echo the words of the president of Botswana, heads of state need to ask themselves whether they want to be on the wrong side of history by opposing the arrest of prominent persons accused of serious crimes.
African leaders have the moral authority and responsibility to ensure that neither they nor any other person who perpetuates such crimes goes unpunished. In this way, they will demonstrate their commitment towards ensuring accountability through African solutions, including a reformed regional tribunal that serves justice for all Africans.
Jemima Njeri Kariri, Senior Researcher, Transnational Threats and International Crime Division, ISS Pretoria