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Business Day Live
By Nicole Fritz

JUST an ordinary piece of business — an announcement at the end of the African Union’s (AU’s) recent summit of heads of state and government in Malabo, Equatorial Guinea, that it had voted to adopt the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights.

And, with a title like that, the average observer would reckon it was not worth further thought: a document likely filled with tedious procedural stuff.

You would think that the AU might want a little more fanfare for its decision to vest its new court for the continent with criminal jurisdiction — an ability to prosecute crimes such as genocide and war crimes, but also piracy and trafficking.

Think again. Buried deep in the protocol is a clause that grants immunity to heads of state and other senior government officials, exempting them from prosecution for these crimes during their term of office.

Now the subterfuge starts making a little more sense.

Most of Africa’s inhabitants, with the exception perhaps of Swaziland’s citizens, are not much accustomed nowadays to having their leaders legislate one rule for them and an entirely different one for themselves.

Equality before the law is a principle central not only to our present-day legal systems, but has also served as motivation for liberation.

So AU leaders probably calculated, reasonably, that the general public would not be pleased to learn that they were now liable for such crimes — just not their leaders.

That is especially so when it is these African leaders, and not the general public, who are most likely to commit these crimes.

Crimes such as genocide and crimes against humanity are generally perpetrated on a huge scale and have a systematic nature. They take root where a lack of accountability prevails.

Those who have the means to perpetrate these crimes, who see themselves as above the law, are generally those who wield the greatest power.

Yet the protocol gives them greatest protection from prosecution.

It is as if a company CEO introduced stiff new penalties for abuse of the company credit card, when only he has access to it, and then exempts himself from such penalties.

Except that abuse of a credit card hardly squares with the devastation wrought by genocide and war crimes.

Article 46A bis of the protocol 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.”

Its inclusion places the AU in direct conflict with the Rome Statute of the International Criminal Court (ICC), which provides that the ICC rules “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.”

AU leaders will more than likely defend the inclusion of immunity on the basis that it is intended to ensure the smooth, efficient workings of state, allowing government officials to go about their work undisturbed by looming court proceedings.

They will probably argue that accountability is not denied, merely delayed; that state officials can be prosecuted when they retire from office.

This, however, ignores the perverse incentives that are generated: abusive leaders will seek to remain in power in perpetuity so that they are forever shielded from prosecution.

Far from contributing to a culture of accountability and protection on the African continent, the AU, by legislating for immunity for leaders, places Africa’s citizens at greater risk.

For those who will suffer the terror of a genocidal ruler, there is now the further tragedy: that ruler will now have every incentive to stay and stay and stay.

Not for nothing is the AU called the continent’s most elite trade union.

Never before, though, have Africa’s leaders so explicitly sought to negotiate better working conditions for themselves at the expense of their citizens.

  • Fritz is the director of the Southern Africa Litigation Centre.




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