The immunity provision in Article 46A bis of The Malabo Protocol or the “Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights” which was adopted by AU
“No charges shall be commenced or continued before the Court against any serving African Union 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.”
But Mr. William Nyarko, Executive Director of ACILA,who stated ACILA’s opposition to the immunity provision when he appeared as a guest on Class 91.3FM’s “World Affairs” program,emphasized that the immunity provision runs contrary to the preamble or the object and purpose of the Malabo Protocol to fight impunity on the African continent.The radio discussion was on the topic “Pursuing Justice for Victims of International Crimes in Africa: Reality or Mirage?”
In addition, he said, the immunity provision also runs contrary to a settled matter in international justice which provides no immunity to anyone appearing before an international criminal tribunal or court,adding that if the immunity provision is not deleted from the Malabo Protocol, itis likely to encourage impunity as Heads of State who commit or direct the commission of international crimes will stay in power for life to prevent being brought to justice when they leave office.
He told Dr. Etse Sikanku, the host of “World Affairs” that since the commission of international crimes such as crimes against humanity and war crimes (which were committed in Sierra Leone) and genocide (in Rwanda, and Darfur), are not part of the official job functions of a Head of State, African leaders should not even contemplate being provided immunity for these serious international crimes.
The issue of immunity for sitting heads of state continuous to be contentious for some African heads of state and has become a rallying point for denouncing the International Criminal Court (ICC) as biased, selective, and targeting of African leaders while other leaders who commit international crimes in other parts of the world escape justice.
Although the Rome Statute of the ICC, which 34 African states have ratified does not provide immunity for sitting heads of state, some African states, including Kenya, whose president came under ICC investigation, have pushed for an amendment to the Rome Statute to provide immunity to sitting heads of state.
That action having failed, African states moved to take steps to establish what appears to be a rival African criminal court, by making amendments to and including immunity for sitting heads of state and government and senior officials to the Protocol on the Statute of the African Court of Justice and Human Rights in Malabo, Equatorial Guinea, in June 2014. It would take ratifications by 15 African states for the Malabo Protocol to come into force for the criminal jurisdiction of the existing court to take effect. So far, no African state has ratified the Malabo Protocol, but nine states including Ghana, have signed the Malabo Protocol
In addition to establishing an apparent rival court,the African Union adopted an “ICC withdrawal strategy” at its recent AU Summit in January 2017.
However, speaking on the same program by phone from his base in South Africa, Mr. Netsanet Belay, Director of Research and Advocacy of Amnesty International, Africa division, said that African states withdrawing from the ICC is not the solution to the issues they might have with the ICC.
According to Mr. Belay, for all the shortcomings of the ICC, the ICC has done a lot to bring perpetrators of international crimes against vulnerable to people justice in Africa, adding that African states must stay with the ICC and continue to push for reforms within the ICC.
Dr. Gassan Abess, an advisor on Human Rights, Research and Criminal Justice at the Center for the Rule of Law and Accountability (CARL) in Sierra Leone, who joined the discussion by phone from Sierra Leone, also stated that the ICC had done more good than harm in addressing impunity for international crimes and abuse and that he was not in favour of African states withdrawing from the ICC.
“I will not recommend a withdrawal (by African states) from the ICC ”, he emphasized.