by Arnold Tsunga and Wayne Jordash QC

There is a general notion that the law is like a spider’s web. It only catches the weak.

The decision adopted by the AU heads in Malabo, Equatorial Guinea, to grant immunity from prosecution for serious human rights violations to heads of state and senior government officials at the African Court of Justice and Human and Peoples Rights only serves to reinforce this perception.

Heads who faced justice

Few African heads of state have been tried for serious human rights violations of their own people. Those that come to mind are Charles Taylor (Liberia) and Hosni Mubarak (Egypt). Charles Taylor was tried by a hybrid tribunal set up under the auspices of the UN in Sierra Leone (sitting in The Hague, a city that has become the seat of international justice). After being overthrown in a revolution, Mubarak was tried by domestic courts in what some view as flawed victor’s justice. The AU was not involved in either of these proceedings.

Others await or are going through trial. These are Laurent Gbagbo (Cote D’Ivoire), Omar Hassan Ahmad Al-Bashir (Sudan), Uhuru Kenyatta and his deputy, William Ruto (Kenya) at the ICC, and Hissène Habré (Chad) at an AU sponsored tribunal in Senegal. The Hissène Habré case has been awaiting trial since shortly after the millennium. Legitimate concerns have been raised about the willingness of the AU leaders to see Hissène Habré face justice and the completion of the trial. Omar Hassan Ahmad Al-Bashir has been largely protected by the AU heads that have refused to cooperate with the ICC to effect his warrant of arrest.

Majority of heads never face justice

The list of those suspected to have violated the human rights of their own people and have never or may never get an opportunity to face justice or formally clear themselves is much longer. It includes, Mobuto Sese Seko (DRC), Emperor Bokassa (CAR), Idi Amin (Uganda), Muammar Gaddafi (Libya), Mengistu Haile Mariam and Zelles Zenawi (Ethiopia), Pau Biya (Cameroun), José Eduardo dos Santos (Angola), Robert Mugabe (Zimbabwe), Yahya Jammeh (Gambia), Paul Kagame (Rwanda), Savir Kii (South Sudan) to name but a few.

In short, no AU established mechanism has ever tried an AU head of state for serious violations of people’s rights.

AU heads dilemma

In matters of international criminal justice for serious violations, the AU leaders face a dilemma based on a clear paradox. The continent experiences serious impunity for widespread and systematic human rights violations yet it is blessed or cursed with so much wealth in natural resources. Such natural wealth exists side by side with so much brutal impoverishment of African people. In 1988, the AU block countries constituted the highest figures per block in geopolitics to vote in favour of the Rome statute establishing the ICC. Arguably, at that time, there was a movement in favour of

ridding the continent of impunity in order to create a basis to tackle this poverty and underdevelopment. However, as the latest machinations appear to indicate, the AU heads appear to have formed the collective view that they helped to create a creature that has turned around to bite them. Of course, this type of retrograde decision making is not new: in the SADC region when the heads felt that the SADC Tribunal (the SADC Court of law) was making ‘undesirable’ decisions, instead of looking inwards and amending their ways, they dissolved it, and are now reconstituting it without the critical jurisdiction to give individuals the locus standi (the right to contest) to bring cases against states.

Breach of settled international standards and norms

Equality before the law

One of the principles at the centre of fair and effective protection in the law is that of equality before the law. It prohibits discrimination. It guarantees that no one is above the law. It denies the notion that some people are more equal than others. It creates a good basis for an effective distribution of power and is the fulcrum for democratic checks and balances. It is the basis on which the separation of powers, so necessary for modern democracies, function. It creates a firm footing to prevent modern societies moving away from the adoption of progressive constitutions towards a practice of constitutionalism. It limits dictatorship and the excesses of executive discretion that operate without accountability.

This fundamental element of international human rights law is enshrined in all major international and regional human rights instruments, including Article 7 of the Universal Declaration of Human Rights, Article 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 3 of the African Charter on Human and Peoples’ Rights that all mandate that every individual shall be equal before the law and entitled to equal protection of the law. As noted by the UN’s Human Rights Committee, there can be no discrimination, exclusion, restriction or preference based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all right and freedoms (General Comment No. 18). As noted by the African Commission on Human and People’s Rights in the Legal Resources Foundation v. Zambia (No. 211/98 (2001) case, “the right to equality is very important. It means that citizens should expect to be treated fairly and justly within the legal system and be assured of equal treatment before the law and equal enjoyment of the rights available to all other citizens.”

Encourages pursuit of power at any cost

Unfortunately the Malabo decision of the African heads of state, not only breaches this principle, but also shakes it to the core. It creates a basis on which power can be attained and retained at any cost. It is a passport to many illegitimate things: to executive excesses, unfair enrichment, extra judicial executions, arbitrary arrests and detentions, undermining the freedom and human potential of African people. Above all it is a passport to impunity. Elections will become a zero sum game. Winning elections at any cost will be the difference between jail and unlimited opportunities to manipulate state power and national resources. One of the core reasons why Africans fought for liberation from colonialism - that is equality and justice - has been, paradoxically, trampled underfoot and thrown out of the window by African leaders themselves.

Right to real and effective remedy

Another important principle of international law is that victims of serious and widespread human rights violations have the right to real and effective remedies and reparations for such violations. The AU heads decision breaches the victim’s right to an effective remedy and reparations. Article 8 of the Universal Declaration of Human Rights and Article 2(3) of the ICCPR provides that everyone has the right to an effective remedy by competent national tribunals for acts violating the fundamental rights granted by law. Of course this is not qualified by any claim that the person responsible for the violation was acting in any official capacity or possessed a particular status.

In short, it is a decision that will embolden future perpetrators whilst rubbing salt into the injuries of present and future victims. It is inconsistent with African values of Ubuntu that allow for the healing of victims and restoration based on truth telling, an acceptance of wrong by the perpetrator and remorse. One is driven to an inescapable conclusion: that the views of the victims were not heard. But do the African heads of state care about them anyway? Their decision speaks volume and shows that they do not.

Conclusion. Does the AU position weaken the ICC?

One question that also emerges is whether the AU heads decision weakens the ICC. Far from it. It unwittingly reinforces the need for the ICC and enforces its fundamental object and purpose. The cornerstone of the ICC is that of complementarity. In short, the ICC will not prosecute where there is domestic willingness and ability to deal with perpetrators of serious, widespread and systematic violations even in situations where such violations have been committed by the head of state. The head of state has no immunity from prosecution under the ICC Rome statute. By making it impossible, or less likely, for African heads of state to be prosecuted for serious, widespread and systematic human rights violations in Africa, the AU may have left victims of such violations with no other remedy than ICC prosecutions under the Rome statute. So in a stroke of a self-serving pen, the AU removed African solutions for African problems and justified the existence of the ICC. Granted that the ICC has its fair share of its own problems and that some of the complaints by the AU heads against the ICC need to be addressed, but those are issues for another day and another article. Suffice to note at this stage, that by trying to undermine the ICC, the AU heads have now demonstrated to the world that victims of widespread and systematic human rights violations by African leaders have no other regional arena of justice in Africa and must instead rely upon the ICC. What an irony, or even a paradox! The current AU heads have placed an unnecessary burden upon future (more enlightened) AU leaders to disentangle the continent from this web of injustice and yoke of oppression.

Arnold Tsunga is the Africa Director for the International Commission of Jurists and writes in his personal capacity while Wayne Jordash QC is an International Human Rights Law Expert.