Immunity for Heads of State as an'African Solution'

Sunday February 2 2014

By BETTY WAITHERERO
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Caught between weak national justice systems and a slow, severely limited International Criminal Court, African states are deliberately moving to ensure that human rights abuses are tried by a continental court.

The proposal to form an African Court of Justice and Human Rights is still in the pipeline and the protocols to establish the criminal jurisdiction are still yet to be adopted by the assembly of the AU. Challenges include immunity for senior government officials and heads of state; in addition there is the clause on unconstitutional change of government and the matter of popular uprising as well the cost implications of funding such a court. At the moment in the draft protocol there is no immunity for heads of state.

Although the current African Human Rights Court has made important findings that uphold human rights – such as in the case of the Njemps in Kenya – its remit has not included criminal justice because its mandate is primarily on Human Rights issues brought against states and the court does not have criminal jurisdiction against individuals. Thus far, African states have referred five situations occurring on their territories to the International Criminal Court. The United Nations Security Council has referred two cases to the ICC. The case against Kenya’s President and Deputy President were triggered on the Prosecutor’s own motion after he received information from an African Union-led mediation investigation of crimes against humanity.

COMPLICATING JUSTICE

An increasing number of victims of violence and atrocities on the continent are demanding justice not only as retribution but as deterrent to possible recurrence. Political instability in Cote d’Ivoire, Mali, Libya and recently Central African Republic and South Sudan has produced widespread violence that has claimed many lives, characterized by egregious sexual violations and torture. Some of those identified for prosecution include individuals who wield political power and influence, which complicates the delivery of justice. It is in this context, where Sudan’s President Omar el-Bashir has a warrant of arrest from the ICC, and the Kenyan President and Deputy President are being tried at The Hague, that African leaders have been pushing for immunity from prosecution for sitting heads of State.

The Chief Executive Officer for the Pan African Lawyers Union, Mr. Donald Deya sees this ambiguity not as a barrier to prosecution but as an opportunity for African countries to push forward legitimate prosecutions without causing an upheaval in governments. He uses the example of the indictment of Sudan President Omar El-Bashir in March 2009.

“The argument put forward by the AU is quite fundamental; it is clear that at that particular time in March 2009, the possible arrest of Mr. Bashir could have resulted in a social and political upheaval in that state,” says Mr. Deya. “In a sense, the subsequent situation resulted in a de-facto deferral of that case for 5 years. But the situation in Sudan has since changed. It is imperative that points on peace and security need to be made objectively for each scenario,” he says.

The idea of an objective approach for each scenario might seem like a form of partiality in application of international justice, but certainly there is some merit to the anxieties over the proposition to arrest a sitting head of state. At the moment, there are serious concerns over the conflicts in Mali, Central African Republic and South Sudan. In as much as atrocities are ongoing and are as likely to be committed by the government of the day as by the rebels, the idea to issue a warrant of arrest for the heads of government at this particular juncture would certainly add fuel to the fire. Moreover, there is the reality that in many instances the actual perpetrators of crimes and those most responsible for the organization and orchestration of widespread violence are not necessarily the same people who sit as heads of state.

"TARGET THE KITCHEN CABINET"

“When you want fight corruption and impunity you target the kitchen cabinet and not necessarily the heads of government because in many cases these are the true masterminds of crimes,” says Donald Deya. There is an obvious disconnect between African countries and Western nations when it comes to international justice. It is a matter that has been conveyed in emotional politics on the part of African states with cases at the ICC which revolve around an argument on the so –called racist nature of the court. There is also a rather clear message sent by nations like the US concerning the prosecution of US citizens by international courts and this message is explicitly spelt out in the “American Service members Protection Act (ASPA) which was passed by the US House and Senate in 2002.

Steve Arthur Lamony, Senior Advisor for Coalition for the International Criminal Court explains. “The Hague Invasion Act provides that if any US serviceman or citizen is arrested and taken before any tribunal then the US has the right to invade that particular country; the US has argued that they have demonstrated that they have the capacity to prosecute their own citizens and they use this to justify the fact that their own citizens should never appear before an international court.”

This strong legal argument could indeed be seen as way of undermining international justice, international law and international peace keeping but at the same time it challenges the African countries to strengthen their own judicial systems.

JURISDICTION OF THE ICC 

 “Our African systems have shown that they cannot be able to prove that they can investigate and prosecute international crime and where they have failed the international courts have stepped in and in fact the African countries themselves have sought the help of the international courts,” says Lamony.

Despite this, there is room for negotiation for a universally accepted concept on the jurisdictions of the ICC as pertains international human rights. “Why don’t we enter into a partnership that means even US officials are prosecuted?” asks Lamony.

 This disparity on the part of the jurisdiction of the ICC should not deter the efforts of the African Union in establishing a comparative court of justice. Key to the success of this continental court will be the ultimate strengthening of the national courts and judiciaries in African states.

There is no denying the fact that the Kenya cases were referred to the ICC because of the weaknesses in the Kenyan judicial system at the time. Since 2008 however, the Kenya government has endeavored to undertake judicial reforms that ultimately seek to improve on the architecture of the court process and the legal provisions of the court to pursue and prosecute crimes and atrocities. Central to these reforms is the proposed formation of the International Crimes Division of the High Court of Kenya.Still, Kenya is still a long way from seeing that victims of the crimes committed during the Post-Election violence of 2008 get justice.

A worrying factor in all this includes the failures and setbacks faced by the Office of The Prosecutor (OTP) at the ICC.

“The incompetence of the OTP in the early years has negatively affected the course of justice,” says Donald Deya. “It is because of this and other underlying factors such as witness intimidation and recantation that have led to a situation where Kenya case 2 is facing a possible collapse.”

Even as the AU stresses the need for African solutions to African challenges, it is important to hold the AU accountable to the commitments made. It was the AU that led the initiative to sort out the crisis in Kenya during the 2008 post-election period and it is the AU that kept Kenya from descent into civil war. The turnaround in terms of their commitment as a union and individual states to the Rome Treaty and supporting the ICC needs to be addressed; the main concern behind this being that the AU and its member states may indeed do a similar turnaround towards their own African Court of Justice and Human Rights.

Twitter : @bettywaitherero