The African Union has had a draft resolution that will merge the current continental judicial bodies- the African Court on Human and Peoples’ Rights and the African Court of Justice and Human Rights- into one judicial body- African Court of Justice and Human and Peoples’ Rights. Part of the resolution proposes that the new court should have an enhanced criminal jurisdiction over war crimes, crimes against humanity and acts of genocide on the continent. Without getting into the merits or demerits of such a step, the sting is in the tail of additional proposed changes. Alarmingly, there is a proposal that, as relates to this new court, “No charges shall be commenced or continued against any serving African Union Head of State or Government”. This is a change over from the original draft proposal that provided that “A person who commits an offence under this Statute shall be held individually responsible for the crime” and that “Without prejudice to the immunities provided for under international law, the official position of any accused person, whether as Head of State or Government, Minister or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment”. These changes are due for discussion and probably adoption by the same heads of States during their next meeting. This particular proposed change, as we shall see, is simply retrogressive and ill motivated.
First, by proposing these changes the African Union is seeking to make a giant leap backwards. Since the Nuremburg Trials the irrelevance of the official position of the perpetrators as relates to the commission of international crimes has become an entrenched part of international criminal law practice. This principle is reflected in various international statutes such as Article 7 of the Charter of the Nuremburg Tribunal, Article 4 of the Genocide Convention, Article 7 of the ICTY Statute, Article 6 of the ICTR Statute, Article 6 of the Statute of the Special Court for Sierra Leone and Article 27 of the Rome Statute. In fact, it has been argued that due to its long history, its application in various cases, and the fact that it has never been openly opposed then it should be considered as part of customary international law.
Secondly, the African states were active participants in discussions leading to the formation of the Rome Statute where the current Article 27 was exhaustively discussed. None of the African countries raised the issue of official capacity of the suspect for consideration. This latter change of heart seems to be an afterthought of the entire body of leadership. That said, is it not reasonable for the citizens of the respective countries to get an explanation for the change of heart?
Third, the motivation for these proposed changes is completely selfish. The African Union never had any problem with the Rome Statute until one of their own was indicted. The warrants of arrest issued against President Al Bashir of Sudan and the current case against President Kenyatta of Kenya and his deputy are what motivated the African countries to unite against the International Criminal Court. The law is therefore being made in order to accommodate the individual interests of the leaders. Not a word, however, is being said of the interests of the potential victims who are just as African. The girls who have been raped, the men who have been butchered, the women who have been displaced are really on their own.
Fourth, if this provision is passed, it will lead to increased impunity on the continent as the leaders will have been given a carte blanche to do as they feel. The leaders who are suspects will also be motivated to hang onto power by all means in order to postpone the inevitable. The flip side is that the cycle of violence in Africa would never end: if I cannot get rid of my President at the ballot, then why not try other means?
I am crossing my fingers that the heads of state will reject this proposal. Join me.
Written by: Ronald Rogo
 Article 46B (1) of the original draft protocol
 Article 46B (2) of the original draft protocol
 See Salvatore Zappalla, Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddhafi Case Before the French Cour de Cassation, EJIL (2001), Vol 12 No. 3, 595-612