Leaders Agree on Immunity for Themselves During Expansion of African Court

by Mireille Affa'a-Mindzie

The opening ceremony of the 23rd Ordinary Session of the African Union in Malabo, Equatorial Guinea, June 26, 2014. (African Union)

The tension between African leaders and the International Criminal Court (ICC) reached a new high at the 23rd Ordinary Summit of the Assembly of the African Union (AU), held on June 26-27, 2014 in Malabo, Equatorial Guinea, where regional leaders formalized an expansion of the African court of justice and human rights’ jurisdiction to include international crimes; they also proclaimed their return to the internationally-abandoned principle of immunity for serving heads of state or government and other senior officials from prosecution of the same crimes. These changes had already been adopted by African justice ministers and attorneys general in May in Addis Ababa, Ethiopia, through a series of amendments to the 2008 protocol that established the court.

Far from easing strained relations between African governments and human rights defenders and supporters of the international justice system around the world, the revised protocol puts further at risk thousands of African men, women, and children who are already threatened by grave and massive human rights abuses, some of which are perpetrated by state security agencies.

Key Conclusions

  • The amendments adopted by the June AU assembly summit in Malabo extended the jurisdiction of the proposed African court of justice and human rights to international crimes, including a broad range of new crimes, an expansion that has the potential to fight impunity and advance justice and the protection of human rights in Africa.
  • However, potential duplicates and concurrence of jurisdiction with the ICC, as well as an immunity provision for serving heads of state enshrined in the new amendment protocol, are clear attempts to curb ongoing efforts to fight impunity and pursue international justice by the ICC.
  • While several legal and financial challenges may limit the effectiveness of the African court, coherent approaches both within the AU Commission and by its partners should be devised to advance accountable governance, human rights, and the rule of law on the basis of internationally agreed standards.

Analysis

Following a year of increasing tensions that ended with the dismissal of a Kenyan amendment to article 27 of the Rome Statute which sought to grant immunity to sitting heads of state by the meeting of the Assembly of States Parties to the International Criminal Court (ICC) in November 2013, African leaders have confirmed their resolve to shield themselves from any accusation or prosecution for international crimes while in office. Adopted among seven other regional treaties during the last AU summit in Malabo in June 2014, the new protocol—the consideration of which was initiated by the AU assembly in 2009—largely expands the jurisdiction of the African Court of Justice and Human and Peoples’ Rights to include a number of international crimes.

In addition to genocide, crimes against humanity, war crimes, and the crime of aggression that are also of the competence of the ICC, the African Court now has jurisdiction over crimes such as piracy and terrorism; corruption and money laundering; trafficking of people, drugs, and hazardous waste; illicit exploitation of natural resources; and the crime of unconstitutional change of government, also condemned by several AU legal instruments, including its Constitutive Act and the 2007 Charter on Democracy, Elections and Governance.

An explicit acknowledgement of the domestic and transnational violations that pose serious threats to Africa’s stability and security and to the lives of its people, this expansion of jurisdiction reflects African countries’ repeated claim to fight impunity and pursue justice across the continent. However, the underlying political motivation behind the African court’s expanded jurisdiction, which can be traced to unsuccessful attempts to curtail the ongoing proceedings involving the Kenyan and Sudanese presidents before the ICC, raises questions about regional leaders’ genuine commitment to fighting impunity and ensuring justice for the victims of international crimes.

Besides, although the regional tribunal would appear as the natural complement of the ICC with regard to crimes that are also of the competence of the international court, the revised protocol makes no explicit mention of the ICC. The only jurisdictions presented as complementary to that of the African court are those of national courts and of the relevant courts of the regional economic communities. As a result, the African criminal court has the potential to duplicate if not compete with the ICC, the jurisdiction of which 34 African countries have accepted.

Beyond the relationship of the proposed African criminal court with the ICC, heavy criticism has been levied against the granting of immunity, by the protocol, to heads of state and senior government officials during their term of office. Reportedly opposed by Botswana, the “immunity provision” was also widely condemned by African and international human rights organizations as it creates an unquestionable setback to the protection of human rights in Africa and the current international justice system. Following the summit in Malabo, the provision was justified by the AU Legal Counsel as a “compromise” reached to allow government officials to fully attend to their responsibilities while in office, which could also be seen as a warning to leaders who abuse their power to commit serious crimes.

Like the principle of irrelevance of official capacity which set aside the customary law principle of immunity of senior government officials, the imprescriptible nature of international crimes has indeed been accepted. However, because the stereotype of the “African leader (clinging) on to power until he drops” is not that far removed from reality, chances are high that many of the regional leaders who could be accused of international crimes are likely to stay indefinitely in office to avoid possible charges. As the AU is in the process of consolidating its African Governance Architecture, a component of which is the promotion and protection of human rights, it is critical that all continental norms and their implementing mechanisms are geared toward enhancing democratic governance, human rights, and the rule of law across the continent.

Despite its recent adoption, the ratification of the Malabo protocol by at least 15 AU member states, its entry into force, and its effective implementation are not a fait accompli. Delayed ratification of regional conventions, including those protecting human rights, has often been the rule more than the exception. It took nine years for the relatively consensual African Charter on the Rights and Welfare of the Child to enter into force following its adoption by AU leaders in 1990. The 1998 protocol establishing the Tanzania-based African Court of Human and Peoples’ Rights entered into force in 2004 and has so far been ratified by 27 countries—seven fewer than the 34 African states that are parties the Rome Statute establishing the ICC. The protocol establishing the African Court of Justice, adopted in 2003, entered into force in 2009, one year after the adoption of the protocol merging the African Court of Justice and the African Court on Human and Peoples’ Rights, which has been ratified by only five countries and has yet to enter into force.

Assuming that the protocol eventually enters into force without revision or reservation made to the immunity provision, the extension of the court’s jurisdiction to international crimes will create new legal challenges to its effectiveness. These challenges include the innovative attribution of state-to-state disputes and individual international crimes to the same tribunal, as well as issues of witness protection and the detention of the accused, for example. The proposed extension will further generate substantial financial implications. While in 2014, the African Court on Human and Peoples’ Rights was allocated a budget of close to $9 million, the Assembly of States Parties approved a budget of over $164 million for the ICC.

Understanding that the global jurisdiction of the ICC is not fully comparable to that of the continental court, the cost of international criminal trials is nonetheless a reality that will quickly hit the proposed African court and hinder the implementation of its mandate. This is more so considering the financial limitations of the AU Commission, which hosts the Office of the Legal Counsel, the Secretariat of the African Governance Architecture, and the Department of Political Affairs that all work closely with the continental human rights treaties and institutions, including the future court. As the commission relies on the generosity of its partners—including the European Union, the US, China, Japan, and Turkey among others—more than on AU member states’ assessed contributions, questions can be raised about these partners’ commitment to support, directly or indirectly, a new African court whose existence will not only duplicate but also threaten the international justice system embodied by the ICC.

Thus, while prospects remain bleak for a more constructive relationship of African leaders with the ICC, ensuring justice to current and future victims of mass atrocities in Africa calls for coherent and sustained approaches for advancing governance, human rights, and the rule of law in Africa, both within the AU Commission and with the AU’s international partners.

Mireille Affa’a-Mindzie is a Research Fellow at the International Peace Institute.