The Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights was adopted at the recently concluded 23rd AU Summit in Equatorial Guinea. The Protocol, in expanding the jurisdiction of the Court (now the African Court of Justice and Human and Peoples Rights), provides, inter alia, for the prosecution of international crimes, unconstitutional changes in government, terrorism and a variety of transnational crimes. A step forward.
In terms of this Protocol African heads of state and government, and senior government officials will be immune from prosecution while in office. Two steps back.
The issues of immunities remains a contentious one. On the one hand, there are those who believe that immunity from prosecution is necessary (at least for heads of state). On the other, there are those who are of the view that no one should be above the law, irrespective of what office they hold. The latter also equate immunity to the promotion of impunity.
I ascribe to the latter thinking. The inclusion of broad immunity provisions (Article 46 A bis must be read with Article 46 B (2)) in the new court’s protocol suggests one thing… at least in respect of criminal prosecution at regional level, all men are equal, but some more equal than others.
The Protocol is now open for ratification. Once the requisite 15 countries have ratified the Protocol, it will enter into force.
(I intend to reflect later, amongst other things, on the inclusion of unconstitutional changes in government as a category of crimes in the Protocol. Life allowing!)