Article 46A bis: Implications for Peace, Justice, and Reconciliation in Africa

Article 46A bis: Implications for Peace, Justice, and Reconciliation in Africa

In June 2014, African heads of state at the African Union (AU) Summit met in Malabo, Equatorial Guinea, and adopted an amendment to the Protocol of the Statute of the proposed African Court of Justice and Human Rights.1 This amendment includes an immunity clause known as Article 46A bis for sitting heads of state and senior government officials, which precludes them from being tried by the African Court for serious crimes committed in violation of international law. Following its adoption, Article 46A bis has reignited heated debates—particularly amongst African civil society organizations, international institutions, and policymakers—concerning the issues of "justice versus peace" and "reconciliation versus impunity," and has sparked new concerns for how this clause might influence the role of the International Criminal Court (ICC) in prosecuting leading perpetrators of mass atrocities and war crimes in Africa.

This topic is particularly relevant as it relates to a conference entitled "International Criminal Justice, Reconciliation, and Peace in Africa: The ICC and Beyond," which took place this past July (2014) in Dakar, Senegal. The event was co-hosted by the African Peacebuilding Network (APN) of the Social Science Research Council (SSRC) and the Council for Development and Social Science Research in Africa (CODESRIA).

In this On the Spot special issue, we asked several leading scholars and practitioners working in the field of international justice, human rights, and peace in Africa to respond to recent concerns about the embedding of Article 46A bis. Specifically, contributors were asked to explore what they consider to be the most significant issue(s) and future challenges in the adoption of this clause, and how this Article differs from the mandate of other international criminal courts, such as the ICC, the International Criminal Court of Yugoslavia (ICTY), and International Criminal Court of Rwanda (ICTR).

Their answers are based on the following questions: Is Article 46A bis a blank check granting African leaders and senior government officials the right to act with impunity? Will leaders be able to get away in the future with serious war crimes and crimes against humanity? What are the prospects that Article 46A bis would be re-thought, further amended, or even dropped? Beyond the existing national laws, the ICC, and the African Court, what other viable alternatives exist for reconciling peace with justice on the continent, or indeed, facilitating the coexistence of justice and peace within stable democratic frameworks? And is there still space for African states and courts to engage with international justice institutions in the pursuit of justice in Africa?

Our respondents are:

Solomon Ebobrah, Postdoctoral Researcher, the Danish National Research Foundation’s Centre of Excellence for International Courts (iCourts), University of Copenhagen; Member, Nigerian Bar Association, Nigeria; and Senior Lecturer, Niger Delta University, Nigeria
Idayat Hassan,2 Director, Center for Democracy and Development (CDD), Nigeria
Anne Kubai, Associate Professor, World Christianity and Interreligious Studies, Uppsala University, Sweden; Researcher in genocide studies, mass violence, and conflict at the Hugo Valentin Centre, as well as Researcher in religion and international migration at the Faculty of Theology, Uppsala University
Chino Obiagwu, Chair, Steering Committee of the Nigerian Coalition on the International Criminal Court (NCICC); and Director, Legal Defence & Assistance Project (LEDAP)
Chidi Odinkalu, Senior Legal Officer, Africa Program, Open Society Justice Initiative
Alex Odora-Obote, Consulting Expert in international criminal law, Stockholm, Sweden; and former Director of Appeals, Legal Advisory Division, United Nations International Criminal Tribunal for Rwanda (ICTR)
Obiora Okafor, Professor of International Law, Osgoode Hall Law School of York University, Toronto, Canada; and Member and former Vice-Chair of UN Human Rights Council Advisory Committee
Njoki Wamai, Gates Cambridge Doctoral Scholar, University of Cambridge; and Alumna, African Leadership Centre (ALC)


Solomon Ebobrah

Ebobrah_pictureThe adoption of the 2014 amendment to the Protocol of the African Court by the AU Assembly ought to signal the end of an era. First, the Protocol sealed the stillborn status of two other African international courts: the African Court of Justice (2002) and the African Court of Justice and Human Rights (2008). More importantly, by creating an African International Court whose multiple functions includes international criminal jurisdiction, the Protocol is meant to accomplish the twin task of ending the AU’s battle with the ICC while simultaneously demonstrating a new commitment on the part of African leaders to promoting "sustained peace" and "justice".3

These and other aspects of the Protocol’s adoption, however, have since been overshadowed by the introduction of an immunity clause in its Article 46A bis. Some perceive the self-grant of immunity to sitting African leaders as "a backward step in the fight against impunity and a let-down for victims of serious violations of human rights."4 While the discourse on perpetuation of impunity is crucial, it is equally important that Africa does not lose sight of a number of other issues concerning Article 46A bis.

Obviously, sitting African leaders who currently claim the Rome Statute is abusively applied to them will not adopt any treaty that opens room for a similar threat of prosecution against them anywhere. In other words, if one assumes that a treaty similar to the Rome Statute is available for adoption, it will never enter into force because most African leaders will not authorize its ratification. Hence, energy needs to be redirected towards finding the utility of the Protocol in its current form.

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A point to note is that Article 46A bis does not foreclose prosecution, first, because it is limited to incumbency of office and, second, because no statute of limitations applies to the jurisdiction of the court.5 An undeniable concern is whether African leaders can resist the temptation of perpetuating their stays in office to take advantage of the provision. One answer may be found in the Protocol itself, if the AU manages to find the political will to enforce it: Articles 28E(1)(d) and (e) define the crime of unconstitutional change of government to include a refusal to relinquish power after free and fair election or the passage of an illegitimate constitutional amendment to extend tenure. Civil society can ensure immunity from prosecution is short-lived by pressuring the AU at the appropriate time to enforce this provision. In any event, the experience of the ICC with regard to President Omar al-Bashir of Sudan6 demonstrates the impracticality of arresting a sitting head of state. At best, only a moral victory would be won by any indictment. And nothing appears to prevent the prosecutor from commencing an investigation even if no charges can be brought during the incumbency of the affected officials.

From another perspective, nothing suggests Article 46A bis takes away the more ominous potential contained in Article 4(h) of the AU Constitutive Act, which represents the AU’s right and responsibility to "intervene in a member state…in respect of grave circumstances". Strictly applied, Article 4(h) compels the AU to intervene even during an official’s incumbency and makes prosecution after incumbency a significantly lesser evil that African leaders would embrace. Perhaps a more troubling aspect of Article 46A bis is the vagueness of its reference to "other senior state officials," especially since, unlike heads of state and government, some officials do not have short tenures of office. Apart from its lack of foundation in international law, the "blank check" nature of that aspect of the immunity removes almost every high-ranking official from the immediate jurisdiction of the court. Thus, a fundamental question arises: What perpetrators—or category of perpetrators—is the international criminal jurisdiction of the African Court meant to try? Is the court meant for opposition figures and rebel leaders alone?

Finally, it is apparent that complementarity is envisaged between the reimaged court on the one hand, and the national and subregional courts, respectively, on the other hand. Apart from the East African Court of Justice, for which endowment with a criminal jurisdiction is being proposed, no other regional court currently has jurisdiction over international crimes. This, arguably, makes the complementarity provision in that regard superfluous.

Not surprisingly, the Protocol is silent on the relationship between the African Court and the ICC. Does this mean no complementary relationship exists between the two, so that the ICC is not bound to pay heed to proceedings before the African Court? Perhaps comity among international courts would apply in the event that a trial actually takes place before the African Court. In other words, the absence of a defined relationship could be the very reason Article 46 A bis may not deliver impunity for African leaders if, indeed, that was the motivation behind its inclusion in the Protocol.

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Idayat Hassan

Idayat pic_DSC_0200Although some have argued that exempting heads of state and senior officials of African governments from prosecution by granting them immunity will advance cooperation and compliance with the proposed African Court of Justice and Human Rights, the limitations this step will impose on the justice system in Africa cannot be overemphasized. It is a step in the wrong direction and should not have happened in the first instance.

Several African leaders have committed grave acts against their own citizens in violation of international law. Jean-Bédel Bokassa, former president of the Central African Republic (CAR), was reported to have supervised the killing of many citizens, including one hundred school pupils, whose deaths at the hands of his guards in 1979 led to his overthrow. In Nigeria, the late military dictator, General Sanni Abacha, and the former head of state, Ibrahim Badamosi Babangida, are both alleged to have ordered the killing of human rights defenders and some journalists while in office. During the current war on terrorism in Nigeria, security forces have been accused of carrying out extrajudicial killings of civilians and members of Boko Haram sect. Numerous other international crimes have been committed against civilian populations by leaders and senior government officials across several other African states, as well.

The administration of criminal justice in several African countries is generally weak due to poor funding, corruption, and weak democratic institutions. This is probably one of the reasons why the interim president of the CAR, Catherine Samba-Panza, recently called upon the ICC to investigate the atrocities committed there by rebel forces.7

For this reason, granting the African Court the authority to prosecute African heads of state and their officials is fundamental to ensuring justice and accountability for such crimes. In addition, by shielding from prosecution those African leaders alleged to have committed crimes against humanity and other international crimes, the immunity clause will further weaken the "promotion and protection" of the human rights of Africans by those who have the primary responsibility to safeguard them.8

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Furthermore, the proposed immunity is in obvious contradiction to the founding principles of the AU, whose Article 4(o) obligates member states to respect the sanctity of human life and condemn and reject impunity. Based on the antecedents and attitudes of some African leaders, we can expect immunity for heads of state and their officials to create an atmosphere of impunity for perpetrators of human right violations, thereby encouraging perpetrators to hold onto power for a long time to enjoy the immunity.

The proposed immunity was born out of tensions between African states and the ICC, the latter being accused of selecting solely African leaders for prosecution. The trial of Kenya’s president Uhuru Kenyatta and the indictment of Sudan’s president, Omar al-Bashir, continue to be cases in point for those making this argument.9 An Extraordinary Summit held in October 2013 by the AU expressed African leaders’ disapproval of the ICC by deciding no sitting head of state should ever appear before an international court. Allowing immunity from prosecution before the proposed African Court of Justice and Human Rights as well will further expose Africa to gross abuses of human rights.

Peace agreements and reconciliation mechanisms cannot be effective if victims of international crimes on the continent cannot obtain justice. African states have to demonstrate the capacity to ensure they can give it to them.

Finally—and not incidentally—out of the 122 states that are party to the Rome Statute, thirty-four are African. Calling for African leaders not to appear before any international criminal court is a clear violation of the treaty obligations into which they entered. The adoption of the Protocol itself is a welcome development and offers a great opportunity to test the efficacy of this regional criminal justice project. However, it seems the immunity clause has foreshadowed any debate on how the African Court can contribute meaningfully to the promotion and protection of the rights of African citizens.

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Anne Kubai

Kubai pictureThe amendment to give heads of state and senior government officials immunity from prosecution for crimes against humanity, war crimes, and genocide before the proposed African Court of Justice and Human Rights is in direct conflict with the Constitutive Act of the AU and the Rome Statute. By giving these individuals immunity against prosecution, the amendment puts them above the law, thereby creating and entrenching inequality before the law.

Chapter IVA of the Protocol on Amendments to the Protocol, which lists "Provisions Specific to the International Criminal Jurisdiction of the Court," begins with Article 46A on rights of the accused. They include the following:

1. All accused shall be equal before the Court.
2. The accused shall be entitled to a fair and public hearing, subject to measures ordered by the Court for the protection of victims and witnesses.
3. The accused shall be presumed innocent until proven guilty according to the Provisions of this Statute.10

The amendment to Article 46A contravenes these provisions by providing 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.11

This clause is inconsistent with and violates the spirit and letter of the AU instruments intended to prevent and address impunity and gross human rights violations on the continent, a violation aptly summed up by Amnesty International in its "Open Letter to the Heads of State and Government of the African Union":

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The Constitutive Act of the African Union: (a) grants the AU the right to intervene if war crimes, crimes against humanity and acts of genocide are being committed in a Member State (Article 4(h); and (b) requires the AU to respect human rights (Article 4(m)), and to ensure the sanctity of human life and reject impunity (Article 4(o)). In addition, a key objective of the African Union is the promotion and protection of human rights contained in the African Charter on Human and Peoples’ Rights and other human rights instruments. By granting immunity from prosecution to sitting Heads of State and Government and other senior officials from the criminal jurisdiction of the African Court, Article 46A bis violates these principles and objectives—all of which are integral tenets of the AU Constitutive Act.12

Certainly, this internal inconsistency will not only make it difficult for the AU to carry out its task of providing political, technical, and material support to member states engaged in prosecuting perpetrators of international crimes before the regional court; it will also make it difficult to render justice to the victims of these crimes. Article 46A bis weakens the proposed court’s mandate to deal with international crimes, particularly because the perpetrators ordinarily are leaders who wield power over general populations they can mobilize in different ways.

Second, the clause goes against the Rome Statute. Given the acrimonious relationship between the ICC and the AU, with the latter accusing the former of targeting Africa and driving a colonial agenda, the desire for an amendment in opposition to the Rome Statute is understandable, in the event that the regional court has to initiate trials for crimes against humanity and war crimes, for which the heads of state and senior government officials are the most likely defendants.

Two points are important: the timing of the amendment and its possible implications for peace and reconciliation in Africa. With regard to timing, the amendment was made against the backdrop of the UN-backed trial of Liberia’s former president, who was handed a fifty-year sentence, to be served in a British jail, for gross violations of human rights and war crimes, and the ongoing trial at The Hague of the former president of Ivory Coast, whose refusal to hand over power after elections resulted in numerous deaths and wanton destruction in the country. They were added to the list of African leaders targeted by the ICC, which also includes the Sudanese president, who was indicted in 2009 and has yet to be arrested and arraigned for war crimes and crimes against humanity in Darfur, and Kenya’s president and deputy president, both of whom are accused of crimes against humanity and are on trial at The Hague.13

Without doubt, the proposed African Court is intended to limit the reach of the ICC, and the immunity clause is intended to limit the reach of the African Court in dealing with international crimes. Shielding all senior officers creates a challenge for the proposed court, which is seen by its supporters as Africa’s solution to African problems, even as we acknowledge it is a long way from becoming operational. A statement attributed to the Amnesty International Africa director decries the poor timing of the amendment:

"At a time when the African continent is struggling to ensure that there is accountability for serious human rights violations and abuses, it is impossible to justify this decision which undermines the integrity of the African Court of Justice and Human Rights, even before it becomes operational."14

A cursory look at the current trends of violent conflicts and mass violence in Africa reveals that victims of political atrocities are increasing in number, and the need is urgent not only for retributive and restorative justice, but also for deterrence. The magnitude of the violence to which innocent civilians are subjected in South Sudan and the Central African Republic is both alarming and disturbing, but how can the AU respond to the situation if its perpetrators, who are senior government officials, cannot be held accountable?

This leads us to the next point, which is justice and reconciliation. Though it is often said there is no reconciliation without justice, both are necessary, particularly in cases of mass violence.

If we agree there is no reconciliation without justice (as the case of Rwanda and several others have proved), seeking justice for victims of mass violence becomes imperative. When human rights have been grossly violated, we should call for a combination of retributive and restorative justice, depending on the peculiarities of each case. In any such case, one of the key elements of restorative justice is accountability—i.e., acknowledgement of responsibility for the suffering of others as a result of one’s actions.

Reparations that include comprehensive programs to facilitate truth telling and acknowledgement by perpetrators of the harm caused to victims of violence are integral to the process of recovery from violent conflict and gross human rights violations. If the leading perpetrators of violence are considered above the law and therefore exempt from and protected against the legal processes that would ensure accountability, restorative justice for victims is not possible.

It follows, then, that reparations are only possible where perpetrators are held to account. If Article 46A bis comes into force when the African Court of Justice and Human Rights becomes operational, accountability will be impossible to ensure, as will be preventing and combating impunity on the continent. The inevitable consequences will be the impossibility of rendering justice and bringing about reconciliation for victims of mass violence and gross human rights violations.

In view of this, the ultimate question is, What purpose will the proposed court serve if it cannot address the most urgent problem in Africa—that is to say, if it cannot prosecute those in power who seem to have a propensity to commit war crimes and crimes against humanity against the citizens of their own states? The court, apparently, is intended to be no more than an impotent buffer against the international justice system.

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Chino Obiagwu

Chino pictureThe disappointing implications of the recent adoption of Article 46A bis of the Protocol to the Statute establishing the African Court of Justice and Human Rights have been widely reported. Civil society groups, including the Nigerian Coalition on the ICC, have condemned the amendment as self-serving and a clear contradiction of the statutory objectives of the AU to fight impunity and reduce self-perpetuation of African leaders in power. No indictable leader will leave office voluntarily if assured freedom from prosecution while in power. Extending this immunity to "senior officials," a nebulous and wide designation, is a tragedy on a continent where millions of victims of atrocity crimes committed by people in power are crying for justice.

What has not been fully discussed is the implications Article 46A bis has for domestic criminal laws, especially in the face of complementarity and cooperation responsibilities of African state parties to the Rome Statute of the ICC.

Across Africa, national constitutions grant immunity from criminal prosecution to heads of state, including when they visit from abroad. Customary international law also declares that heads of state enjoy immunity from prosecution under it, except with regard to its statutory limitation, such as in the case of indictments by the ICC.15 In the decision by Trial Chamber 2 of the ICC with respect to obligations of Malawi and Chad to arrest and surrender President Omar al-Bashir of Sudan, the ICC held that,

"customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes." (para. 43)

National laws posit, however, that although heads of state cannot be prosecuted while in office, they can be investigated (and indicted) and arraigned for prosecution after leaving it.16 Immunity does not extend to "other senior officials" who do not hold national or state-level executive positions. Under Section 308 of Nigeria’s 1999 constitution, the immunity applies to the president, the vice president, the state governor, and the state governor’s deputy, and no more.

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What the amended Article 46A bis has done is to expand the scope of laws of immunity, so that an African state that ratifies and domesticates the Protocol will be saddled with an international law covering a wider field on immunity than its own national law. An army commander or a minister indicted by national prosecutors, for example, can seek refuge from a national court against surrender or domestic complementarity prosecution for an international crime created under the Protocol because he or she is immune from prosecution under the Protocol, while the national law does not.

A similar conflict of legal responsibility arose when the National Coalition for the International Criminal Court (NCICC) sought a court order to compel the Nigerian government to arrest and surrender President al-Bashir to the ICC during his July 2013 visit to the country.17 The plaintiffs have argued that Nigeria’s obligation to cooperate with the ICC as a state party to the Rome Statute overrides other national or regional obligations of the country. In other words, even though Nigerian law18 and domestic common law restrain the country from arresting and prosecuting a sitting head of state, the Rome Statute requires Nigeria as a state party to do so. On the other hand, the AU resolutions demand Nigeria and other AU members not cooperate with the ICC with respect to indicted heads of state on the continent.

To clarify this conflict of treaty obligations, some African civil society groups recently applied for an advisory opinion of the African Court on Human and Peoples’ Rights regarding the priority of obligations for an African state party to the ICC with respect to its cooperating with the ICC and its complying with resolutions of the AU.19 Both cases are awaiting decisions. By extending immunity to “senior officials,” even for such widespread positional crimes as corruption, mercenary conduct, and genocide, the amended Article 46A bis has created a jurisprudential quagmire in the form of a vague blanket immunity that contradicts the national laws of the AU members.

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Chidi Odinkalu

Chidi IMG_0453Complaints from Africa about the workings of the ICC are well known. The court has been accused of focusing only on the continent and of being shaped by poorly disguised political and diplomatic agendas. This July, twelve years after the ICC began operations, the AU decided to establish what would, in theory, be an international criminal court for Africa by giving the existing African Court on Human and Peoples’ Rights (ACHPR) jurisdiction over international crimes.

Not surprisingly, the AU’s motives have been questioned. The ACHPR was created to hear complaints about rights abuses. To function as a criminal court, it would require enhanced capabilities, including a prosecutor and defense lawyers. Other regional human rights tribunals, such as the European Court of Human Rights or the Inter-American Court, have no criminal jurisdiction. Critics have portrayed the AU’s move, therefore, as a ploy to undermine the ICC.

These criticisms deserve attention. That something hasn’t been done before is never a good enough reason not to try. The suggestion that the Statute of the ICC–better known as the Rome Statute, a reference to the city in which it was adopted—provides no legal basis for a regional competence over international crimes proceeds from a somewhat hubristic, if mistaken, belief that the statute is the Holy Grail of international law on accountability. It isn’t. Article 52(1) of the United Nations Charter clearly authorizes "the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action." No one could seriously argue that Africa, which provides all the cases presently before the ICC, should not care about such crimes. Comparisons here with the European and Inter–American courts must consider that, unlike Africa, neither of these systems currently has any situations before the ICC.

Furthermore, the idea that Africa lacks the capacity to try the worst atrocities committed within the continent against its own people is patronizing at best. Capacity is not a fact of nature. It is acquired. Any country or institution—including the ACHPR—that desires seriously to acquire the capacity to try international crimes can easily do so.

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That just leaves the question of motive. One part of this is the suggestion that the jurisdiction extension is willful, procured to block the ICC in Africa. This is not entirely accurate. In reality, the idea of some form of African regional court for international crimes emerged in 2004, when the continent, then very much in love with the ICC, began grappling with how to try former Chadian dictator Hissène Habré. The motive at that time was not to hinder the ICC, but to accomplish things it could not do.

The other part of the motives issue is contained in a provision in the proposed amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, which reads, "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."

This provision covers two categories of persons: "serving" African heads of state or government and "other state officials based on their functions." It is best to treat these two separately.

The latter category is nebulous and unclear in both scope and function. There can be no justification for it to be included in this kind of instrument. Also unclear is who will be responsible for designating who is a "senior official" and who is not. Hopefully, a court presented with such designation can exercise reason and sound judgment to clearly impose constraints against abuse of this elastic expression.

The issue with respect to sitting heads of state is even less clear-cut because the position of international law on their being accused while they are in office is unsettled. To be clear, no one should be shielded from answering for international crimes because of the nature of his or her office. But how to get heads of state to stand trial is a conundrum to which international law has found no easy answers. The result is a mess.

First, there is doctrinal confusion. The International Court of Justice, which adjudicates disputes between states, affirms that heads of state and government and foreign ministers have "functional immunity" attached to their offices. The ICC Statute contains three contradictory provisions in articles 27(1), 89(1), and 98(1) on immunities affecting heads of state. In particular, Article 89(1) of the statute entitles member states to comply with requests for arrest and surrender only "in accordance with the procedure under their national law." Under most constitutions, presidents may resign, be voted out, be impeached, or leave office on the expiration of their terms and thereafter face prosecution for crimes. Kenya’s constitution, for instance, denies immunity to a president charged with international crimes. But many countries don’t provide for any such exception to blanket immunity from process for sitting presidents.

Second, there are political and practical constraints. In their comprehensive study, Prosecuting Heads of State, Ellen Lutz and Caitlin Reiger rightly point out that "the waxing and waning of political fortunes still dominates the extent to which former leaders are held judicially accountable for their crimes at all."20 A leader who can win an election is unlikely to be turfed out of political office by a court in Arusha or The Hague.

Third, there are increasingly well-founded appearances of diplomatic double standards, which could fatally damage advocacy for mass atrocity accountability globally. The usually vocal international justice advocacy community has been eloquent in its silence in response to the credible allegations that powerful states from Europe and North America are arm-twisting the Palestinian Authority to preclude it from submitting the Gaza conflict to the jurisdiction of the ICC. Credible advocacy for accountability requires consistency.

Thus, what is needed is investment in growing cultures of political accountability, while simultaneously eliminating well-founded perceptions of double standards in the application of the Rome Statute system. Otherwise, advocates must increasingly confront accusations that their focus on immunities for African heads of state is one of two things: subterfuge for procuring African regime change by external fiat or an attempt to dispute domestic judicial impotence in the face of electoral violence before foreign tribunals.

Overall, a cautious welcome can be extended to the move to extend the jurisdiction of the African Court to cover international crimes. The affirmation by African leaders that these mass atrocities happen and must be brought to account is in itself progress. Flaws remain in the specific proposals on immunity, but none that cannot be addressed by collective attention by international law generally or imaginative application of the law by the ACHPR. Africa’s new criminal court deserves a chance to be tested by experience and improved by skill.

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Alex Odora-Obote

SCAN0106Article 46A bis, which extends to African leaders immunity from prosecution before the African Court of Justice and Human Rights, is a preemptive action, calculated to shield them from responsibility, notwithstanding the court is not yet operational. This subterfuge complements other mischiefs embedded in the Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. It guarantees the failure of the court.

These mischievous acts include the limited temporal jurisdiction of the court (Article 46E (1)) which permits the court jurisdiction only for crimes committed after entry into force of the Protocol. Currently, the court has no jurisdiction over any perpetrator. Furthermore, even after the court becomes operational, it will not acquire jurisdiction from that date, but rather from the date of the Protocol’s ratification by a state.

Additional protective layers emerge once the court is operational. The drawing of overlapping jurisdictions, for example, creates uncertainty as to which court has primacy when more than one occupies the same temporal jurisdiction—the African Court, the ICC, or the African domestic national court. What is the scope of the relationship between the African Court and the ICC, on the one hand, and the African national courts and the African Court, on the other?

Furthermore, thirty-four out of fifty-four African countries currently are state parties to the Rome Statute and have binding obligations to cooperate with the ICC. This creates difficulties between African states who are parties to the ICC and the nonstate parties with respect to their relationship with the African Court.

The draft Protocol is also silent on mutual legal assistance, extradition, surrender of suspects, transfer of accused persons, protection of victims and witnesses, and domestic support to investigators and prosecutors from the African Court and the ICC. Some of these issues may be addressed at a future date when the court is operational.

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Finally, the Protocol is silent on funding for the collection and preservation of evidence, for defense lawyers, for victims and witnesses, and for translators to interpret the many African languages that may be used by witnesses and victims in court. To meet these responsibilities, the court requires a reasonable budget; yet the AU is not known for financially supporting its institutions. In fact, the Protocol is silent on funding for the court generally, and the office of the prosecutor in particular. What percentage of the AU budget will be allotted to the court?

Overall, Article 46A bis is a subterfuge. The African Court was designed to fail.

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Obiora Okafor

Obi Okafor_PictureThe brevity of an essay like this one seems to me to demand an unrelenting focus on just one point about a topic on which one could write a whole book. With this limitation in mind, the overarching point I want to make here is not necessarily one in favor of the granting of immunity to sitting African heads of state, but rather how thoughtful observers of this development must account for and respond to the ways in which not granting this kind of immunity may, in fact, hinder the attainment of their own end goal of protecting more and more Africans from repression and violence.

Somewhat paradoxically, the seemingly pro-human rights approach of targeting sitting heads of state for prosecution before international courts can, in certain contexts, lead to the exacerbation of domestic repression, conflict, and violence. At least on the African continent, when a sitting head of state is in real danger of being hauled, tried, and convicted before an international criminal court, holding on to office usually affords protection to him or her. The threat of international prosecution would thus encourage all-too-many highly repressive and violent leaders to do everything possible to remain in office as long as they possibly can so as to reduce the likelihood of being ousted by opposing internal forces, which would likely lead to their arrest. Not surprisingly, the road to the continued stay in office of such leaders tends to be lined with the bodies of killed, tortured, or otherwise seriously abused opponents and ordinary citizens. One might argue, for example, that the prospect of being taken before the ICC or some such forum helped augment the repression and conflict in al-Bashir’s Sudan. Witnesses are said to have been killed, the opposition repressed, and conflict stoked. The alleged intimidation, killing, and disappearance of possible witnesses against the current Kenyan president and his deputy have also been well documented by human rights activists.

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Thus, in the real world, the grant of immunity to sitting heads of state—something that is temporary and transactional—may not necessarily be as antithetical to human rights as many have loudly suspected. To the contrary, it could actually protect more Africans from (augmented) repression and violence than their targeting for international prosecution could ever hope to achieve. And it could even lead to more (not fewer) prosecutions before the international criminal courts, albeit only of officials of lesser rank than the head of state (for example, ministers and army chiefs).

What is more, the temporary immunization of sitting heads of state from prosecution could suitably dull their minds in the meantime to the real dangers many of them may face when they leave office. As no statute of limitations exists for war crimes and crimes against humanity, their eventual prosecution is a viable prospect. Just ask Hissène Habré, who was charged with these crimes twenty-two years after being deposed as leader of Chad. Crucial to the calculus here is that these leaders can do significantly less harm to the human rights of ordinary people in their respective countries if they are targeted for international prosecution while out of office.

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Njoki Wamai

njoki_wamai picThe June 27, 2014 meeting of AU heads of states in Malabo, Equatorial Guinea, has drawn condemnation from individuals and civil society organizations who have warned that the revised Article 46A bis of the proposed African Court of Justice and Human Rights undermines the Court’s ability to fight impunity on the continent. The African heads of states at the meeting revised the contentious article 46A bis to read: "No charges shall be commenced or continued before the Court against any serving African Union 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."

According to an International Peace Institute (IPI) meeting report with practitioners in the field of transitional justice, victims and survivors of human rights abuses aspire for a number of goals in order to feel truly reconciled. These include restoration to original position, compensation (economic), rehabilitation (medical and otherwise), satisfaction through truth telling, and promise that it will never happen again.

Evidence from my PhD research on communities in Kenya (where human rights violations occurred after the 2008 post-election violence) suggests that apart from economic compensation for some victim groups, political will and a consistent framework is lacking to ensure that the other important objectives of transitional justice, such as satisfaction through truth telling, rehabilitation, and promise of non-occurrence, are achieved.

This has led to apathy among the victims who believe that the most important gesture for them to feel that justice has been done would be compensation and apologies from their neighbors who committed these violations. Hence, while they recognize the symbolism in ending impunity that the ICC creates by charging the alleged masterminds who are usually leading political figures, they would feel even more satisfied if the local perpetrators were arrested or if a truth telling process at the local level was started in addition to the Hague process, which seems too removed from their local context.

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Despite attempts to create a regional court with immunity for heads of state and other senior leaders, it is unlikely that peace and reconciliation efforts on the ground will be affected by Article 46A bis, since most victims are more concerned in introducing and improving local truth telling and justice processes that will affect their everyday lives, like that of gacaca in Rwanda. Evidence from Kenya suggests that in addition to the symbolic justice created by regional and international justice from the AU and the ICC, victims and survivors of human rights abuses more importantly aspire for justice from local-level peace and reconciliation initiatives. There is need for greater emphasis and support for community-level peace and justice efforts that can provide for reconciliation after human rights violations, in addition to the national and regional processes such as the proposed African Court of Justice.

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  1. This replaced the African Court of Human and People’s Rights.
  2. Upon the author's request, please note that the views expressed in this work are personal and should not be construed as representing that of the CDD or its affiliated organizations.
  3. See the preamble to the 2014 African Court Protocol, http://www.iccnow.org/documents/African_Court_Protocol_-_July_2014.pdf, accessed October 10, 2014.
  4. Amnesty International Australia, “African Union Protects Leaders from Prosecution for Genocide and War Crimes,” http://www.amnesty.org.au/news/comments/34947, accessed October 10, 2014.
  5. Art. 28A(3) of the 2014 African Court Protocol.
  6. Following referral of the situation in Darfur, (former Sudan) to the ICC by the UN Security Council by SC Resolution 1593(2005), the ICC issued warrants of arrest against President al-Bashir in 2009 and in 2010. Since then, Mr. al-Bashir has not been brought before the ICC.
  7. Jennifer Lazuta, “Rights Group Calls for CAR Atrocities Investigation,” Voice of America, July 10, 2014, http://www.voanews.com/content/amnesty-central-african-republic-atrocities/1954647.html, accessed October 10, 2014.
  8. Amnesty International, “Open Letter to the Heads of State and Government of the African Union,” June 20, 2014, http://www.amnesty.org/en/library/info/AFR01/012/2014/en, accessed October 10, 2014.
  9. At the time this piece was written, President Uhuru Kenyatta had not yet appeared before the ICC.
  10. African Union, “Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights,” May 15, 2014, http://www.iccnow.org/documents/African_Court_Protocol_-_July_2014.pdf, accessed October 14, 2014.
  11. Ibid.
  12. Amnesty International, “Open Letter to the Heads of State and Government of the African Union,” June 20, 2014, http://www.amnesty.org/en/library/info/AFR01/012/2014/en, accessed October 14, 2014.
  13. See footnote no. 9.
  14. Amnesty Press Release, July 1, 2014, http://www.amnesty.org/en/for-media/press-releases/au-summit-decision-backward-step-international-justice-2014-07-01, accessed October 16, 2014.
  15. See articles 27 and 98 of the Rome Statute of the International Criminal Court, http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf, accessed October 16, 2014.
  16. See the Nigeria case of Fabumi v Inspector General of Police (2011) LPELR-3550(CA), http://www.lawpavilionpersonal.com/lawreportsummary_ca.jsp?suite=olabisi@9thfloor&pk=CA/I/207/07&apk=39981, accessed October 16, 2014.
  17. NCICC & Others v Attorney General of the Federation & Others no. 2 Suit No FHC/ABJ/CS/501/2013. See http://allafrica.com/stories/201307161269.html?page=2, accessed October 16, 2014.
  18. For example, the Diplomatic Privileges and Immunities Act
  19. Advisory Opinion No 001 of 2014, AFCHPR/Req.Ad.OOp/001/2014/004. See http://www.african-court.org/en/images/documents/case/Summary_of_ADVISORY_OPINION_No.pdf, accessed October 16, 2014.
  20. Ellen L. Lutz & Caitlin Reiger (eds), Prosecuting Heads of State, (Cambridge: Cambridge University Press, 2009), p. 276.
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