24 August 2023
Johannesburg — African countries should reject immunity for sitting leaders for grave crimes before the African Court for Justice and Human Rights, 141 organizations said today in a declaration in advance of an African Union meeting in Nairobi. The organizations include both African groups and international groups and have a presence in 40 African countries.
The African Union (AU) Office of the Legal Counsel is convening a meeting in Nairobi on August 25 and 26, 2014, with government officials of AU member countries in East Africa to promote ratification of AU treaties. Discussions, which will take place at the Hilton Hotel, are expected to include a newly adopted protocol to extend the African Court’s jurisdiction to trials of genocide, war crimes, and crimes against humanity, while providing immunity for sitting leaders and other senior officials. The protocol to expand the authority of the African Court was adopted at the 23rd African Union summit, in Malabo in June.
“The immunity provision is a regrettable departure from the AU’s Constitutive Act, which rejects impunity under article 4,” said George Kegoro, executive director of the International Commission of Jurists-Kenya. “Immunity takes away the prospect that victims can access justice at the African court when leaders commit atrocities. African states should take a clear stand opposing this immunity.”
The adopted Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights is the first legal instrument to extend a regional court’s authority to criminal jurisdiction over genocide, war crimes, and crimes against humanity. The protocol also covers 11 additional crimes and notably provides for an independent defense office.
But Article 46A bis of the amendments provides immunity for sitting leaders, stating: “No charges shall be commenced or continued… 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.”
The statutes of international and hybrid international-national war crimes tribunals reject exemptions on the basis of official capacity. Other international conventions, including the Convention against Torture, the Convention on the Prevention and Punishment of the Crime of Genocide, and the Geneva Conventions of 1949, recognize the crucial importance of accountability for serious crimes.
“Granting immunity to sitting officials is retrogressive, and risks giving leaders license to commit crimes,” and Timothy Mtambo executive director at Malawi’s Centre for Human Rights and Rehabilitation. “Immunity also risks encouraging those accused of the crimes to cling to their positions to avoid facing the law.”
Some African countries like Benin, Burkina Faso, Democratic Republic of Congo, Kenya, and South Africa rule out immunity for sitting officials for serious crimes under their national laws, the groups said.
This text of the group declaration was drafted by Malawi’s Center for Human Rights and Rehabilitation, with input from several African organizations and international organizations with a presence in Africa.
“Instead of retreating from important achievements to limit impunity, advance the rule of law, and promote respect for human rights, African governments should remain steadfast in supporting justice for victims of the worst crimes by rejecting immunity before the African Court,” said Angela Mudukuti, international criminal justice project lawyer at the Southern Africa Litigation Centre.