African leaders — can’t touch this.
On Friday, 4 July 2014, the African Union (AU) amended the Protocol on the Statute of the African Court of Justice and Human Rights to provide for blanket immunity from prosecution for African leaders and their “senior government officials”.
The language of the amended Protocol is clear and succinct: “No charges shall be commenced or continued before the court against any serving African Union Heads 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 language of the Protocol protects a broad range of perpetrators. It extends unfettered immunity from criminal prosecution in any jurisdiction in Africa. The amendment also creates an “exceptionalism” that is enjoyed only by African leaders. It shields the leaders and their cronies from accountability. This obnoxious law must be challenged by all persons of good will.
It is regrettable that other democratic states in Africa, such as South Africa, Namibia, Tanzania, Ghana and Senegal did not stand shoulder to shoulder with Botswana to oppose this antiquated law. Instead, they allowed themselves to join the ranks of unsavory dictatorship like Egypt, Uganda, the Democratic Republic of the Congo (DRC); other failing states such as Somalia, Mali, Libya, Niger, Central African Republic (CAR); and ungovernable states like Nigeria whose writ does not cover northern Nigeria, as Boko Haram has attested. These undemocratic states have ceased to represent the interests of their people or to act on their behalf.
In democratic countries, the lines between the citizens and the state are based on recognition of a citizen’s individual rights which is then framed in terms of what the state needs to do to protect those rights.
The state, through its leadership, neither murders its citizens, nor gets away with it subsequently. The rights of leaders are always tempered and balanced by their duty and obligation to protect the rights of its people. All acts of a leader must be carried out within agreed legal framework. Leaders who fail to follow the law must be accountable for their actions before courts of law, including and especially when they are in office. The Protocol adopted by the African leaders on 4 July, turned this basic legal principle on its head.
The new “impunity law” ignores Africa’s history of the 1970s, 80s, and 90s when military dictatorships and one-party state’s governments brutalized their citizens without any form of accountability. Some of these “criminal” leaders of the 70s, 80s, and 90s are still in power today and were instrumental in the adoption of the “impunity law”. More recently, between 2000 and 2014, more than 6 million civilians were murdered in the DRC by its government and the governments of neighboring states after invading the DRC; in South Sudan, troops from neighboring states have joined the blood-letting. It is some of these criminal acts that are the forces behind the “impunity law”.
Africa cannot close its eyes and hide behind the fact that George W. Bush and Tony Blair have not been prosecuted with respect to the Iraq war and therefore African leaders should not be prosecuted. Charity begins at home, and it is important that Africa puts its house in order before it begins finger pointing at leaders of foreign nations. After all, African leaders pride themselves of “African solutions to African problems”. Well, Bush and Blair are not Africa’s problem; leave them to the ICC to handle. On the other hand,African leaders are Africa’s problems and African Court must handle you. That sounds fair, doesn’t it?
There are more serious and pressing problems for the AU to address, and that problem is battling impunity. Nigeria, the biggest economy in Africa and the most populous state on the continent, with excellent record of peace keeping, cannot protect its own children from Boko Haram militia; Libya, a wealthy nation, cannot protect its sovereignty as militias divide the country; Egypt, a country with a rich history, is busy murdering its own people; and CAR is heading towards genocide while South Sudan is falling apart through political and ethnic vendettas. Instead of seeking solutions to these, and other grave issues, African leaders are more concerned on protecting themselves from criminal prosecutions.
Any good student of history easily recognizes that mere existence of immunity clauses in any legal framework, regardless of how it is used, is itself sufficient to create conditions under which impunity flourishes. A citizenry that is always abused by those in authority, eventually becomes used to the idea of abuse, develops a compliant mode and fearful, and even possibly an accomplice to his and her degradation and humiliation.
Impunity unites governments of otherwise remarkably divergent political creed: from Cairo to Kampala; Bangui to Harare, these governments share one thing in common – terrorizing the civilian population without accountability. Besides Botswana, the lone sane voice at the AU summit, all states whose constitutions guarantee individual human rights and free access to court, ganged up to grant to themselves and their cronies immunity from prosecution for atrocity crimes.
The ability for an ordinary citizen to murder a person and get away with it is already bad enough, particularly when police investigators need to be bribed before they can perform their official duties. For Heads of State or Government to give themselves a right to murder hundreds or thousands of people, without any form of accountability, vests immense power in these leaders who, whether properly elected, rigged elections or gained power through armed rebellion, have no right to pass such a law without the consent of the people.
It is particularly disturbing that the representatives of victims, NGOS and human rights organizations were denied access and the right to participate in deliberations leading to the adoption of the “impunity clause”. It is particularly distressing when one of the objectives of the Constitutive Act of the AU, as stipulated in Article 3(h), is dedicated to “promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples Rights and other relevant human rights instruments.” With the recent adoption of the “impunity clause” to protect heads of state and government from prosecution, this makes the provision hollow and a mockery of justice.
Overall, the decision by the AU leaders granting themselves immunity from prosecution is gross abuse of power and a dereliction of duty. I know from my years of experience in the conduct of international criminal prosecution that the AU’s “impunity clause” can be viewed by some analysts and critics as abstraction, one that is difficult to get people to care about viscerally. What is more, the issue of international criminal prosecution is invariably complex, making it even harder to engage the public in a widespread and positive way because of the experiences of the challenges encountered by the ICC in prosecuting past and present Heads of State and Governments.
But what is pertinent is to separate the issues that undermines the good work of the ICC from justification being peddled around to demonize not only the ICC but international criminal justice wholesale. The fact that the ICC has encountered difficulties in prosecuting Heads of State does not translate into extending immunity to all African leaders.
Dr. Obote-Odora is an international lawyer and consultant