By stripping the ACJHR of the power to prosecute Africa’s leaders have the AU scored an own goal?

No comments Governance, Human Rights, Humanitarian, LEAP

At a closed-door session over the weekend of 28-29 June 2014, the assembly of the AU granted sitting African leaders immunity from prosecution at the African Court of Justice and Human Rights.  Incumbent leaders and “senior state officials based on their functions” who allegedly committed genocide, war crimes and crimes against humanity will not be charged or tried by the African Court of Justice and Human Rights during their period in office.

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<a href="http://www.issafrica.org/uploads/CSO-letter-African-Court-5-May-2014.pdf">Fourty-two African and international civil society and rights groups</a> had objected to the amendment arguing that the impunity violates international and domestic laws as well as the AU’s own constitution.

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Human rights organisations have joined forces to slam the move with Amnesty International stating it is a “backward step in the fight against impunity and a betrayal of victims of serious human rights violations.”

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The African Court of Justice and Human Rights was the proposed alternative to African leaders being tried by the International Criminal Court.  The ICC is a court of last resort and can and does prosecute sitting leaders.  The direct consequence of this move therefore is to remove the power of Africa to charge and try its own leaders.

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The ICC has frequently, and probably justifiably, been accused of unfairly targeting African leaders.  All eight situations being investigated by the ICC are African.  Two sitting leaders, Uhuru Kenyatta (Kenya) and  Omar al_Bashir  (Sudan) and one ousted president, Laurent Gbagbo (Ivory Coast) have been indicted.

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So what does this move achieve?  Some argue that guaranteed immunity from prosecution regionally may lead African states to engage more enthusiastically with the proposed new court and to abide by its rulings.  The court may also escape the political issues that beset the ICC.  If leaders are not at risk of prosecution regionally it may well also assist with peace seeking solutions to regional crises.

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Critics of the move point out that it could result in leaders attempting to seize office for life and increase the likelihood of vote rigging and election fraud.  They also note that victims will have no regional recourse to justice but will be required to turn to the ICC.

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The good news is that the draft protocol does include some progressive clauses.  These bring corruption, money laundering, human and drug trafficking and piracy, amongst other serious crimes, within the court’s ambit.  This is the first regional court in the world to do so.  There is also a clause that excludes regime change by peaceful popular protest from the Court’s jurisdiction.

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Whichever way you look at it the move is clearly unpopular with victims of human rights abuses across the continent, many of whom fought hard for the ICC itself to be set up and welcomed a regional alternative, and sets up a two tier system whereby the prime orchestrators of the grossest human rights abuses are granted immunity whereas the “ordinary” citizen is not.

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