Article 46A Bis: A Step Backward in Ending Impunity in Africa

Article 46A Bis: A Step Backward in Ending Impunity in Africa

At its twenty-third ordinary session, held on June 26–27, 2014, the Assembly of the African Union (AU) surreptitiously adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. Among other provisions, the Amended Protocol contains Article 46A bis, which effectively shields African leaders and senior government officials accused of committing serious human rights violations from criminal prosecution before the proposed African Court.1 The jurisdiction of the proposed court will be broader than that of its predecessor, the African Court on Human and Peoples’ Rights (AfCHPR), in that it will include atrocity crimes—namely, genocide, war crimes, and crimes against humanity. The AU Assembly’s approval of the immunity clause comes at a time of growing acrimony between the African Union and the International Criminal Court (ICC) over allegations that in its ongoing proceedings against the Kenyan and Sudanese presidents, the Hague-based court is predominantly targeting African leaders. Circumventing the “Africanization” of the ICC seems to be driving the AU Assembly’s expansion of the continental court’s jurisdiction.

Article 46A bis of the Protocol on Amendments provides that “no charges shall be commenced or continued before the Court against any serving [AU] Head 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.”2 Its effect is to make sitting heads of state or government, as well as senior government officials in AU member states, immune from prosecution in the African Court while they are in office. The blanket description of “anybody acting or entitled to act in such capacity, or other senior state officials” may lead to a situation where every senior member of government can be granted immunity by virtue of his or her official position.3 The immunity clause raises serious doubts about the potential efficacy of the African Court and its leaders’ commitment to ending impunity and ensuring justice for the victims of atrocity crimes on the continent.

The AU has justified its adoption of the immunity provision under Article 46A bis as a “compromise” reached to allow government officials to attend fully to their responsibilities while in office.4 Also in support of the immunity provision is the argument that guaranteeing immunity for leaders and senior officials might foster greater cooperation by African states with the court and thereby ensure compliance with its rulings.

Others indicate that Article 46A bis seeks to rectify the position in international law that heads of state and top government officials have functional immunity for acts committed while in office.5 The AU Assembly, therefore, inserted Article 46A bis “to stop legal and judicial activism of overzealous young investigating magistrates in Europe from indicting African heads of state and government officials as they did in Djibouti, Senegal and Rwanda.”6 If this is the case, then there is no way Article 46A bis can be a deterrent to leaders who have a propensity to commit atrocities against their citizens.7 It should be noted that former heads of state do not have immunity for nonofficial functions when it comes to liability for serious crimes in international law, which include genocide, war crimes, and crimes against humanity. This view derives from the Pinochet case where the courts decided that commission of atrocity crimes such as torture cannot be said to be a state function warranting functional immunity.8

Inconsistent with international law

Article 46A bis of the Protocol on Amendments is a departure from, in stark contrast to, and inconsistent with international law, which allows international courts to lift immunity from sitting heads of state and senior officials and upholds the principle of equality before the law. The irrelevance of official capacity before international criminal courts is also entrenched in international legal instruments, including the Convention against Torture, the Convention on the Prevention and Punishment of the Crime of Genocide, and the Geneva Conventions of 1949, which recognize the imperative of accountability for individuals who have committed serious crimes, irrespective of their positions.9

Since mass atrocities imply the complicity of the state or of its organs, irrelevancy of official status affects how states behave toward their citizens and promotes the protection of fundamental human rights as a concern for the international community as a whole. For this reason, statutes of the international criminal institutions provide legal authority to prosecute sitting heads of state and senior officials. Irrelevance of official capacity has been codified in international law for more than six decades, beginning with the Nuremberg principles created after the Second World War and followed by the statutes of ad hoc criminal tribunals, including the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR). Article 27(1) of the Rome Statute of the ICC, for example, states that the statute applies "equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute."10

Creating a sphere of impunity that denies justice to victims

Penetration of the veil of immunity to prosecute government officials is key to ensuring justice and accountability for serious crimes under international law. The immunity conferred by Article 46A bis will insulate from prosecution those most responsible for international crimes, as well as those in the best position to prevent them.11 It is, therefore, evident that Article 46A bis is not in the interest of the victims of atrocity crimes on the continent. History teaches that crimes from which the leaders and government officials are exempted are usually committed at the hand of the state or those who wield state-like power. This raises the difficult question of who will try the perpetrators of these crimes. Looking at the spectrum of post-conflict justice mechanisms, the African adage that “as long as lions will not have their own historians, hunting stories will continue to glorify the hunters” proves to be absolutely correct.12 It explains why irrelevance of official capacity is key to ensuring accountability for mass atrocities. In the words of Schabas, "If a country’s rulers are behind the crime, can its courts seriously be expected to hand out justice? Where those responsible for genocide have been vanquished—Germany in 1945 or Rwanda in 1994—there may be modest hope of progress with prosecution. Where they have prevailed, impunity would seem to be the order of the day."13

The African Court could, therefore, have been one of the possible forums for meting out justice in such cases. Article 46A bis will achieve nothing beyond creating a “sphere of impunity” for state-sponsored perpetrators, which is inconsistent with the needs of victims and ensuring justice for atrocity crimes.14 Indeed, the very adoption of the immunity clause may exacerbate conflict situations and the suffering of victims. Insulating state-sponsored perpetrators from prosecution for as long as they retain power is a step backward in the fight against impunity and a betrayal of victims of atrocity crimes.

Antithetical to the spirit of the AU Constitutive Act and other national constitutions

Granting immunity to sitting heads of state and senior government officials for mass atrocities runs against the spirit of the AU Constitutive Act, particularly Article 4(o), which proclaims the AU’s commitment to respect the sanctity of human life and condemns and rejects impunity, and Article 4(h), which asserts the continental body’s right to intervene in a member state with respect to genocide, war crimes, and crimes against humanity.15

Furthermore, several domestic courts in Africa reject immunity for serious crimes in violation of international law. For example, Article 143(4) of the Kenyan constitution provides that immunity of the president shall not extend to a crime for which the president may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity. Likewise, section 4(2) (a) of South Africa’s International Criminal Court Act adopts the Rome Statute’s hard line on rejecting immunity for government officials, including heads of state or government, as defense for a crime or grounds for any possible reduction of a sentence for a crime under the jurisdiction of the ICC.16

Survivors and victims will now look beyond “African Solutions”

Where national constitutions provide immunity from prosecution for atrocity crimes, courts with jurisdiction beyond national borders can come in to close this gap and avoid impunity. By granting immunity for heads of state and high-level government officials in the continental court, the AU Assembly has taken a step backward in ending impunity on the continent. If this retrogressive provision comes into force, the survivors and victims of atrocities will have no option but to seek justice and reparation from elsewhere—in this case, the ICC, which still has jurisdiction to try perpetrators of mass atrocities, regardless of official position—thereby defeating the principle of “African solutions to African problems.”17 So far, thirty-four African states are parties to the Rome Statute of the ICC, meaning they have accepted the irrelevance of official capacity for perpetrators of atrocity crimes.

Prevention is better than cure

In exempting state officials from prosecution, African leaders have lost the plot of ending impunity on the continent as set out in Article 4(o) of the AU Constitutive Act. The AU Assembly ought to have realized that preventing mass atrocities is more worthwhile than penalizing perpetrators after the fact. To prevent these crimes, factors such as restructuring and the political and economic empowerment of certain disadvantaged classes or groups of people on the continent, as well as cultural issues, must be addressed. If they are not, mass atrocities will remain commonplace. Instead of focusing on prosecution as curative medicine for an injury that has already occurred, the African leaders should address the urgent problems that spark the conflicts that lead to the crimes for which they have exempted themselves from prosecution.

Fortunately, although the Protocol on Amendments has been adopted, it is not yet in force. This is because Article 9 of the Protocol on the Statute of the African Court of Justice and Human Rights requires that it should be ratified by at least fifteen AU member states for it to come into force.18 If past delays in ratifying international instruments by African states are anything to go by, there is still a long way to go before the immunity provision comes into play.19 Meanwhile, African leaders who commit atrocities should remember there is still no immunity for them beyond the continent.

  1. The Amendment Protocol was adopted on June 27, 2014 in Malabo, Equatorial Guinea. See http://summits.au.int/en/23rdsummit, accessed July 24, 2014.
  2. See "Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights," p. 34, http://www.iccnow.org/documents/African_Court_Protocol_-_July_2014.pdf, accessed August 18, 2014.
  3. Betty Waitherero, “Immunities Clause at the African Court of Justice and Human Rights Is Outrageous,” Daily Nation, July 4, 2014, http://mobile.nation.co.ke/blogs/-Heads-of-state-Immunities-clause/-/1949942/2369696/-/format/xhtml/-/7lahgiz/-/index.html, accessed July 25, 2014.
  4. Mireille Affa’a-Mindzie, “Leaders Agree on Immunity for Themselves During Expansion of African Court,” Global Observatory, http://theglobalobservatory.org/analysis/788-leaders-agree-immunity-expansion-african-court.html, accessed July 26, 2014.
  5. A former top official of the African Union who is familiar with the history and raison d’être of the drafting of Article 46A bis, in an interview with the author in Pretoria, 5 September 2014.
  6. Ibid.
  7. See Mireille Affa’a-Mindzie, note 3 above.
  8. Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet and Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (on appeal from a divisional court of the Queen’s Bench Division), http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990324/pino2.htm, accessed July 31, 2014.
  9. See, generally, Micaela Frulli, “Some Reflections on Immunity of State Officials,” offprint from The Italian Yearbook of International Law, vol. 19, 2009, http://www.academia.edu/1996792/Some_Reflections_on_the_Functional_Immunity_of_State_Officials, accessed July 30, 2014. See also Andrea Bianchi, “Immunity versus Human Rights: The Pinochet Case”, European Journal of International Law 10 (1999): 237–77, http://www.ejil.org/pdfs/10/2/581.pdf, accessed July 24, 2014.
  10. The wording of Article 7(2) of the Statute of the ICTY and Article 6(2) of the Statute of the ICTR are identical; both state the “official position of any accused person, whether as Head of state or government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment.”
  11. Heads of state and high officials do usually enjoy a degree of immunity by virtue of their positions, however. They have immunity from national courts when they are on the territory of a foreign state, and former heads of state and senior officials enjoy immunity for official duties carried out while they were in office.
  12. Carla Del Ponte, keynote speech, Annual Conference of Political Affairs Division IV, “Civilian Peace Building and Human Rights in South-East Europe,” New York, September 1 2005, www.un.org/icty/pressreal/2005/p1001-e.htm9, accessed September 10, 2005. Also see generally the International Criminal Court Fact Sheet, www.un.org/News/facts/iccfact.htm, accessed May 25, 2007.
  13. William A. Schabas, “Genocide Convention at Fifty,” in United States Institute of Peace Special Report (Washington DC: United States Institute of Peace, 1999), 4 also available at http://www.usip.org/sites/default/files/sr990107.pdf, accessed September 9, 2014.
  14. Amnesty International, “Open Letter,” May 5, 2014, http://www.amnesty.org/en/library/asset/IOR53/004/2014/en/0ef6fe09-a572-4ec9-bca6-1a11b4e90025/ior530042014en.pdf, accessed September 18, 2014.
  15. Ibid. See also International Justice Resource Centre, “African Union Approves Immunity for Government Officials in Amendment to the African Court of Justice and Human Rights Statute,” July 2, 2014, http://www.ijrcenter.org/2014/07/02/african-union-approves-immunity-for-heads-of-state-in-amendment-to-african-court-of-justice-and-human-rights-statute, accessed July 30, 2014.
  16. Republic of South Africa, Implementation of the Rome Statute of the International Criminal Court Act, Act 27 of 2002.
  17. Waitherero, “Immunities Clause at the African Court of Justice.”
  18. Protocol on the Statute of the African Court of Justice and Human Rights, http://www.african-court.org/en/images/documents/Court/Statute%20ACJHR/ACJHR_Protocol.pdf, accessed July 30, 2014.
  19. Coalition for the International Criminal Court, “A step towards Impunity: AU Approves Immunity for Those in Power,” Coalition Bulletin, http://ciccglobaljustice.wordpress.com/2014/07/03/a-step-towards-impunity-for-grave-crimes-au-approves-immunity-for-those-in-power/?utm_source=CICC+Newsletters&utm_campaign=062cc04932-Coalition_Bulletin_June_2014_ENGLISH&utm_medium=email&utm_term=0_68df9c5182-062cc04932-356527553, accessed July 20, 2014.
About the Author

Dan Kuwali is extraordinary professor of law at the University of Pretoria, South Africa; adjunct professor at the Centre for Security Studies, Mzuzu University, Malawi; and a fellow at the Carr Centre for Human Rights Policy, Harvard Kennedy School, USA. He is the author of Responsibility to Protect: Implementation of Art 4(h) Intervention (2011) and The Responsibility to Protect (2014).

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