In a controversial decision, the African Union has decided to specifically exempt senior government officials from prosecution by a proposed regional human rights court, which will otherwise be authorized to try individuals accused of crimes against humanity and other serious international crimes. At its 23rd Ordinary Session in Malabo, Equatorial Guinea last week, the Assembly of the African Union (AU) adopted an amendment to the Protocol on the Statute of the African Court of Justice and Human Rights to immunize African leaders accused of committing serious human rights violations from criminal prosecution before the proposed African Court of Justice and Human Rights. [African Union] While it is hoped that the amendment will foster greater cooperation and compliance with the future Court, the limitation on its mandate has been the subject of intense criticism by civil society groups.
The African Court of Justice and Human Rights is intended to replace the African Court on Human and Peoples’ Rights (AfCHPR) and the African Court of Justice, to become the main judicial organ of the African Union and predominant human rights court for the African continent. The scope of the African Court of Justice and Human Rights’ mandate will be greater than that of its predecessors, as its jurisdiction will extend beyond inter-State disputes and State responsibility for human rights violations to deciding individuals’ responsibility for genocide, war crimes, and crimes against humanity. [African Legal Aid]
Owing to the newly adopted immunity provision, however, its jurisdiction would not extend to sitting heads of state and senior government officials while they are in office. This limitation has raised serious doubts about the potential efficacy of the future court. [African Legal Aid]
Immunity for Heads of State and Senior Officials from International Criminal Prosecution
Article 46A bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (“the Protocol on Amendments”) provides: “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.” [allAfrica; Zimbabwean] (While the current text of the Protocol on Amendments is not available online, a 2012 draft version can be viewed here.)
This immunity provision differs from the mandates of other supranational criminal courts, including the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda. Article 27(1) of the Rome Statute of the ICC, for example, states that the Statute applies “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.”
The wording of Article 7(2) of the Statute of the ICTY and Article 6(2) of the Statute of the ICTR are identical; both state that the “official position of any accused person, whether as Head of state or government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment.”
In this way, all three courts – the ICC, the ICTY, and the ICTR – have the authority to prosecute sitting heads of state and senior officials. This is consistent with international law, which allows international courts to lift immunity from current heads of state and senior officials.
The African Court of Justice and Human Rights would be unique among regional human rights bodies, which typically do not have jurisdiction to prosecute individuals.
Heads of state and high officials do usually enjoy a degree of immunity by virtue of their positions, however. They have immunity from national courts when they are on the territory of a foreign State, and former heads of state and senior officials enjoy immunity for official duties carried out while they were in office.
Reactions from Civil Society
Over 40 civil society groups have expressed disapproval at the inclusion of immunity for heads of state and senior officials in the mandate of the African Court of Justice and Human Rights. [African Legal Aid] In an open letter to the African Union, many of these groups argued that the authority to prosecute government officials is critical to ensuring justice and accountability for the most serious crimes. [Amnesty International: Open Letter] There is concern that immunity will insulate those most responsible for international crimes, as well as those in the best position to prevent such crimes. [FIDH]
These groups also argued that the immunity provision goes against the founding principles of the AU. The Constitutive Act of the African Union enumerates principles by which the African Union must function; Article 4(o) provides that the African Union must respect the sanctity of human life and condemn and reject impunity. Civil society groups contend that granting immunity for heads of state and senior officials is a step backwards. “Africa should be moving forward in the fight against impunity, not regressing,” said Stephen Lamony of the Coalition for the International Criminal Court. [African Legal Aid]
Furthermore, the immunity provision has led some to worry about the ability of the future African Court of Justice and Human Rights to achieve its objectives. Netsanet Belay, Amnesty International’s Africa Director for Research and Advocacy, has said that “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.” [ABC; Amnesty International: AU Summit]
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 proposed new court, and to abide by its rulings.” [ABC] Simon Allison of the Institute for Security Studies reasoned that “[i]f Africa’s leaders aren’t worrying about their own fate, they won’t have anything to lose by cooperating.” This argument potentially overlooks the fact that former heads of state do not have immunity for non-official duties, which have been found to include torture. Civil society groups have thus warned that immunity for heads of state and high officials “would carve out a sphere of impunity for high-level perpetrators, and create an incentive for such perpetrators to hold on to power indefinitely.” [Amnesty International: Open Letter]
Conflicts between African States and the ICC
The AU adopted this immunity provision in the context of ongoing tensions between African States and the International Criminal Court, which has been accused of singling out African leaders for prosecution. Currently, two sitting presidents face prosecution at the ICC for crimes against humanity and other crimes; they are Kenya’s President Uhuru Kenyatta and Sudan’s President Omar al-Bashir. Kenya’s Deputy President William Ruto has also been charged with indirectly committing crimes against humanity.
The perception that the ICC is disproportionately focusing on situations in Africa has prompted African States to threaten to withdraw from its jurisdiction. In October 2013, the AU held an Extraordinary Summit on the ICC to discuss the ICC’s treatment of African cases. The Assembly decided that no sitting head of state should ever appear before an international court. [IJRC]
Despite these calls to withdraw from the jurisdiction of the ICC, more African States are party to the Rome Statute than in any other region. Out of the 122 States Parties to the Rome Statute, 34 are African, 27 are Latin American and Caribbean, 25 are Western European and other States, 18 are Asia-Pacific States, and 18 are Eastern European. [ICC]
Adoption of the Amending Protocol
Articles 5(1)(d) and 18 of the Constitutive Act of the African Union provide that a court of justice must be established, and that it will constitute one of the nine organs of the African Union. The Assembly acts as the “supreme organ” of the AU. It reaches decisions by consensus, or if consensus cannot be reached, by a two-thirds majority vote. Two-thirds of the total membership of the AU is needed to have a quorum.
Journalists were excluded from the summit vote at the Ordinary Session last week, so it is unknown how many votes were in favor of the proposed amendment. [ABC] In the past, however, Botswana has been a lone objector to immunity for heads of state before international court. [ABC]
For more information on the African system of human rights, please visit IJRC’s Online Resource Hub.