CSOs against immunity protocol
Two civil society organisations (CSOs) have asked African States, including Malawi, not to ratify a protocol which provides immunity to sitting presidents and senior government officials from prosecution for crimes such as genocide and crimes against humanity at the African Court of Justice and Human Rights.
The International Bar Association (IBA) and the Southern Africa Litigation Centre (Salc) noted that the African Union (AU) adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights at the recent AU summit held in Equatorial Guinea which President Peter Mutharika did not attend, but was represented by Minister of Foreign Affairs and International Cooperation George Chaponda.
Article 46A of the Protocol on Amendments states: “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 IBA executive director Mark Ellis said in a statement issued yesterday that the provision generates perverse incentives for abusive leaders to remain in power so that they are shielded from prosecution.
Salc director Nicole Fritz added: “But it isn’t only that the AU, by its decision, creates contradictory legal norms, it also contradicts its own founding charter, which requires that it protects human and people’s rights.”
The new protocol is also in conflict with the Roman Statute which established the International Criminal Court (ICC) which does not provide for immunity for sitting heads of State and that 34 African countries, among them Malawi, have ratified.
There has been conflict between African States and the ICC on the prosecution of heads of State such as Kenya’s Uhuru Kenyatta and Sudan’s Al Bashir such that the AU held a summit in October last year that no African head of state should appear at the ICC.
In 2012, Malawi refused to host the AU summit after Al Bashir insisted on attending the event even when he is wanted for crimes against humanity.
Minister of Justice and Constitutional Affairs Samuel Tembenu said he would respond to questions on whether Malawi would ratify the amended protocol in due course.
