The African Union (AU) has defended the decision by members to approve a clause in its protocol that would shield sitting heads of state from prosecution for war crimes.
The Director for the African Union Legal Counsel, Vincent Nmehielle, on Monday evening told the Nation the clause in the Statute of the African Court of Justice and Human Rights “is not a departure” from known international legal systems and is only meant to ensure governments are not “interrupted.”
“This immunity is not absolute. It is only extended during their term of office. It doesn’t mean that they can never be tried for war crimes or crimes against humanity or for genocide,” Prof Nmehielle told the Nation in Nairobi.
“I have never seen that any leader can lead forever. There is a misconception that African leaders continue to be bad and that is not really a fair assessment.
INTERNATIONAL LEGAL SYSTEMS
“If they committed those crimes while in office, it means that the prosecution will wait until they leave the office, which appears to be in accord with a number of international legal systems where no criminal prosecutions against a sitting head of state are preferred.”
The AU’s legal chief was speaking on the sidelines of a meeting that the AU has called in Nairobi to “brainstorm on a strategy to speed up ratification, accession and implementation of the OAU/AU treaties in Eastern Africa."
The two-day event that ends on Tuesday has drawn attendants from Kenya, Uganda, Ethiopia, Madagascar, Tanzania and other countries from the region.
Participants will review a protocol adopted at an AU summit in June in Equatorial Guinea that would give more teeth to the African Court of Justice and Human Rights to try suspects for war crimes, crimes against humanity and genocide.
But specific focus was drawn by civil society groups from 40 African countries earlier in the day, who demanded that the legal experts advise member states to drop article 46A, which provides that no sitting head of state should face crimes against humanity charges.
“The immunity provision is a regrettable departure from the AU’s Constitutive Act, which rejects impunity under article 4,” said Mr George Kegoro, the director of the Kenya chapter of the International Commission of Jurists.
“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.”