The future of international justice in Africa is uncertain following last week’s approval by the AU summit in Malabo, Equatorial Guinea, of a protocol to the proposed African Court of Justice and Human Rights, which will exempt serving heads of state and senior officials from prosecution while still in office.
This amendment is the culmination of a difficult year in relations between the International Criminal Court and the AU, arising from the trials facing the Kenyan President and Deputy President before the court. Kenya has played a leading role in shaping the AU/ICC relations and in articulating the AU position before international forums.
The effect of the protocol is that the proposed court, which will replace the existing African Court of Human and People’s Rights, that is based in Arusha, and the yet-to-be-formed African Court of Justice, and which will have jurisdiction to hear criminal cases that the existing court does not have, will have no capacity to try heads of state and unspecified senior officials.
While African states have asserted that these amendments are part of a scheme to find “African solutions for African problems”, it is difficult to argue that the Kenyan cases before the ICC have not played a defining role in energising last week’s amendments, which are viewed as a backlash against the ICC, and a major setback for the victims of serious crimes in Africa.
Even within African civil society, which has a total rejection of all forms of impunity, some voices have defended last week’s amendments, pointing out that these were pragmatic concessions that needed to be made in order to allow efforts towards the setting up of Africa’s own criminal court to go forward. However, this argument ignores the extreme disfunctionality that has characterised the existing court, even when it did not have to deal with the controversies that usually surround criminal justice.
While the protocol establishing the existing African court came into force in 1998, it took 10 years for the first case to be brought before the court and, even then, this case was technically incompetent. However, there has been a recent surge in the number of cases before the court which now stand at more than 20.
The small number of subscriptions to the court remains the main problem standing in the way of access to the justice that the court promises. Out of the 53 African states that are members of the African Union, only 26 have ratified the treaty on the existing African court.
The bar of access by individuals to the court through a requirement that a member state must authorise such access by signing a declaration is also a significant problem for the court. Only Tanzania, Malawi, Ghana, Burkina Faso and Mali have allowed direct access by their nationals to the court by signing the declaration.
The problems facing the African court resonate with those facing courts established under the various sub-regional economic cooperation agreements. Of these, the SADC Tribunal of Justice has been worst hit: Following its decision which declared the eviction of white farmers by Zimbabwe as unconstitutional, Zimbabwe withdrew from the tribunal, whose legitimacy it challenged.
Then in 2010 the SADC summit ordered a review of the “functions and … terms of reference of the SADC Tribunal”, which led to the suspension of the operations of the tribunal which then closed.
The backlash against the tribunal is similar to the treatment that the East African Court of Justice received in 2010, following its decision in the Anyang’ Nyong’o case with which Kenya took exception leading to a hurried amendment to the treaty on the court to make the point that Kenya, and not the court, was boss.
Presidential immunities
Last week’s amendment creates a new norm that will compete with the norm at the ICC, that it is not acceptable to shield presidents from prosecution.
Kenya has proposed amendments to the Rome Statute which come up for discussion at the next Assembly of State Parties in December, seeking presidential immunities under the Rome Statute.
While it is unlikely that the amendments will be approved, Kenya’s proposal signifies the increasing boldness by African states, and Kenya in particular, in pursuing an agenda for impunity that would never have been thought possible only a year ago.
A patent difficulty is that the Kenya Government is leading Africa, and representing the people of Kenya, in negotiations on major policy-changing endeavours without any form of consultation with citizens at home. Kenyan citizens are reading about what is being done abroad in their name, about which nobody is talking at home.
The evidence shows that African states are not prepared for meaningful accountability, either at home, where they are cracking down on accountability organs, or abroad, where they raise the rhetoric of feeling targeted because of being African.
The Kenyan constitution leans heavily against immunities for heads of state, providing that the President of Kenya is not immune from prosecution if treaties to which Kenya is a signatory do not allow such immunity. In effect, the government is affecting a major constitutional presumption without bothering to discuss the reasons for doing so with its citizens.
The contempt by the government for citizens is demonstrable. There is a certain rogue image in which the current leadership is not afraid to represent Kenya, and which is at odds with the country’s history, recent experiences, and the documented aspirations of the people of Kenya.
Source: Daily Nation
