{UAH} Impunity for 'senior officials'? Shame on AU - Comment - www.theeastafrican.co.ke
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Impunity for 'senior officials'? Shame on AU - Comment
By L. Muthoni Wanyeki
Posted Saturday, June 28 2014 at 11:41
The Assembly of Heads of State and Government of the African Union met this week. One of the proposals under consideration was that granting criminal jurisdiction to the African Court of Justice and Human Rights.
The political impetus behind this proposal is clear. A number of African states worry about the instrumentalisation of the International Criminal Court — particularly given the ability of the United Nations Security Council to refer situations to the ICC.
Whether those situations occur in state parties to the Rome Statute or elsewhere. And given the continued imbalance of power within the Security Council.
The sentiment is that the ICC has become a new tool of leverage over weaker states — the less extreme version of the tale. Or a means of effecting regime change — the more extreme version of the tale.
At face value, nobody would have a problem with expanding opportunities for African survivors and victims of international crimes to seek restitution. On their own continent.
We can all be sceptical, of course, about how the AU intends to resource the African Court's new jurisdiction. For all its huffing and puffing about sovereignty and taking our matters into our own hands, the AU is still largely externally financed.
Resourcing criminal jurisdiction is an entirely different matter than resourcing the African Court's mandate now. Criminal jurisdiction implies prosecution services, investigations and witness protection.
The African Court will need to be able to support defence services if necessary. If it follows the ICC's innovations, it will also need victims' participation and representation services. Plus, of course, penal services. It is not, in short, a small undertaking.
That said, addressing resourcing is logistical. The political impetus behind the AU's move is not. Amendments to the draft Protocol under consideration this week included the following: "… no charges shall be commenced or continued before the Court against any serving African Union Head of State of 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 hand of the government of Kenya, in its frenzied lobbying in defence of those sitting in the presidency and vice-presidency, is clear.
But the amendments go beyond the old arguments about presidential immunities that even the Constitution of Kenya no longer wholly recognises. To other "senior state officials." The meaning of state officials is clear. The meaning of "senior" is not.
How low down the ladder will a state official suspected of committing international crimes have to be for survivors and victims of international crimes to believe that the African Court will prosecute him or her on their behalf?
The amendment undermines the entire proposal to grant the African Court criminal jurisdiction. It ensures that justice will only ever be one-sided (affecting non-state actors suspected of committing international crimes).
And, in its protection of state power, it contributes to the viciousness with which battles to capture and maintain state power are fought. It is a farce, a mockery. And it is dangerous.
L. Muthoni Wanyeki is Amnesty International's regional director for East Africa. This column is written in her personal capacity.
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