African Union Commission Chairperson Nkosazana Dlamini-Zuma
Legal Link International,Nairobi beaural — Mary Wacu lived in the Rift Valley region for 10 years
prior to the 2007/08 post-election violence that rocked Kenya after a
disputed general election.
"My husband was shot with a poisoned arrow, and my children hacked to
death. Everything was burnt to ashes, I barely escaped with my life,"
she tells IPS.
According to human rights organisations, the violence in this East
African nation left an estimated 1,500 people dead and resulted in the
rape of 3,000 women and the displacement of 300,000 people.
From her shanty in the sprawling Kibera slums, in Nairobi, Kenya's
capital, Wacu follows the proceedings of the cases for crimes against
humanity levelled against President Uhuru Kenyatta, his deputy William
Ruto and journalist Joshua Sang at the International Criminal Court
(ICC) in the Netherlands.
But here in Kenya, like many who bore the brunt of the unprecedented
violence, justice remains beyond Wacu's reach. It is a scenario that is
all too familiar in Africa's conflict-prone countries like Sudan and the
Democratic Republic of Congo.
Against this backdrop, civil society organisations (CSOs) in Africa
as well as international ones working on the continent, have opposed the
recently-adopted Protocol on Amendments to the Protocol on the Statute
of the African Court of Justice and Human Rights by the African Union
(AU) member heads of states in June.
The protocol extends criminal jurisdiction to the African Court, and
offers immunity to serving heads of states and all senior government
officials during their term of office for serious crimes. The African
Court was established by African countries to ensure protection of human
and peoples' rights on the continent.
A source from Malawi attending the just-concluded meeting to promote
ratification of AU treaties, which was held in Nairobi by the AU Office
of the Legal Counsel on the 25 and 26 of August, explains to IPS that
the amendments include an immunity provision for heads of states or
governments and certain senior state officials for serious crimes
against humanity.
The contentious article 46A categorically states that no charges
shall be commenced or continued against any serving AU head of state or
government, or anybody acting or entitled to act in such capacity.
"Lifting immunity for sitting officials for serious crimes committed
is an assurance to African leaders that they are above the law," the
source says.
AU officials at the meeting, however, refused to comment to IPS on the protocol.
Malawi has taken the lead in mobilising other CSOs across Africa to
tell their governments that the immunity provision is a blatant
disrespect for human rights.
The source says that with a number of African leaders already under
the radar of the ICC, "an immunity provision is offering African leaders
the licence to abuse their people. It will further entrench
dictatorship since many leaders will be afraid of being indicted when
their term ends."
The civil society community says that the African Court was moving in the right direction, until now.
Edigah Kavulavu, of the Kenyan Section of the International
Commission of Jurists, tells IPS that the adopted protocol is the first
legal instrument to extend a regional court's authority to criminal
jurisdiction "regional courts often deal with human rights issues, which
are matters of a civil nature."
He says that the African Court can now try cases of a criminal
nature, including genocide, war crimes, and crimes against humanity.
He points out that the main bone of contention with the protocol is
the immunity provision. Article 46A, Kavulavu says, is in breach of the
principles that govern human rights.
"Through ICC and other regional courts such as the Special Court for
Sierra Leone, these courts complement each other so that they can bridge
the impunity gap," he explains.
James Gondi of the Kenyans For Peace With Truth and Justice, a
coalition of over 30 Kenyan and East African legal, human rights, and
governance organisations, tells IPS that international criminal law and
international justice demand that "those bearing greatest responsibility
are often head of states, heads of military and high level elites who
plan, finance and coordinate criminal acts [be held to account]. The
amendment is meant to serve the interests of these three categories of
people."
The human rights lawyer further says that immunity negates the
principles of transparency and accountability, respect for the rule of
law and for humanity.
He says that the immunity provision is a display that African leaders are immune to the criminal justice system.
Gondi says that the objective of the criminal justice of which the
African Court now has mandate is and should be to "deter future
atrocities and to end impunity."
The lawyer says that the regime of law has developed such that
immunity for heads of state is lifted in many national and international
laws where crimes committed are so heinous that the law cannot turn a
blind eye.
African countries with national laws that rule out immunity for
sitting officials for serious crimes include Benin, Kenya, Burkina Faso
the Democratic Republic of Congo and South Africa.
Gondi says that while the general principle of the law is that "we
cannot give immunity for crimes against humanity because they are so
grave. The law is an issue of politics and politics are defined by
impunity and political will."
Moving forward, Gondi says that there must be a concerted
international and regional effort to end impunity and the political will
to drive these efforts, "citizens must also demand for accountability
from their leaders."
The Malawi source urged CSOs to lobby, protest and campaign to have
their governments reject the adoption and continue with sustained
campaigns.
