By Farai Dauramanzi
Some human rights defenders in Zimbabwe has criticised the recent decision by the African Union Summit of Heads of States and Governments to exempt all sitting heads of states and other senior government officials from being prosecuted under the statute of the African Court of Justice and Human and People’s Rights (ACJHPR).
African leaders who met for the 23rd summit in Equatorial Guinea from 26-27 June 2014 approved on a protocol to create the ACJHPR to try 14 international crimes which will include genocide, crimes against humanity, war crimes, piracy, corruption, mercenaries, money laundering and unconstitutional changes of government.
The agreement to create the court was reached through an amendment to the protocol that created the African Court of Justice and Human Rights (AfCJHR). However, the amendment which provides immunity from prosecution to sitting heads of states and senior government officials is proving to be controversial among human rights defenders.
Speaking at a public discussion forum to commemorate the Africa Human Rights Day that was hosted by the Zimbabwe Human Rights NGO Forum on Friday 24 October 2014 in Harare, various presenters who made presentations on the topic Justice and Accountability in Africa, The African Court of Justice and Human Rights: The Equatorial Guinea Amendment Challenges and Opportunities said that the amendment would have many negative effects on justice delivery for Africans.
Lloyd Kuvheya from ICJ said the main bone of contention is Article 46 of the statute which reads 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.
“The prosecutor in that court cannot drag a sitting head of state for prosecution. In other words it is entrenching the impunity of heads of state as well as senior government officials,” said Kuvheya.
Tiseke Kasambala of the Human Rights Watch who presented a document on implications of the Equatorial Guinea Amendment for justice and accountability in Africa said that African leaders were trying to escape justice since the issue of the merged court (ACJHPR) only came about after the indictment of some sitting heads of states by the International Criminal Court (ICC).
“All of this (the immunity clause) is self-serving but, also it goes against some of their own domestic laws. Granting immunity to sitting heads of states and government and certain senior government officials simply risks giving them an open licence so that they can perpetrate crimes,” said Kasambala.
However, Dzimbabwe Zimbga of the Zimbabwe Lawyers for Human Rights who was presenting on how national laws foster cooperation with international human rights mechanisms said that it was difficult for individual states secure immunity against prosecution as no state or region can operate outside international protocol.
“There are also other obligations that arise by virtue of the customary international law meaning those kinds of norms that even if there is no treaty that you have ratified that recognise those human rights principles you are also bound because over time they are now recognised as norms that any country needs to recognise,” said Chimbga.