The African Union’s decision to offer sitting presidents immunity from prosecution for crimes against humanity is likely to water down efforts by the continent to set up a court for trying international crimes.

At a meeting in Arusha last week, legal experts expressed concern that the immunity clause will not only slow the fight against impunity in Africa but is also likely to affect the human rights mandate of the African court that is still being set up.

There is also concern that the June resolution at the African Union summit in Malabo, Equatorial Guinea, to expand the jurisdiction of the African Court on Human and Peoples’ Rights to include international crimes, will energise the push to withdraw from the Rome Statute and stop dealing with  the International Criminal Court.

President Yoweri Museveni of Uganda called on AU member states to withdraw from the Rome Statute during the summit to be held in Addis Ababa in January next year.

The Arusha-based African Court on Human and Peoples’ Rights will start dealing with cases of international crimes when 15 of the 54 African states ratify the amendments to its jurisdiction. However, the court’s jurisdiction will only apply to countries that have ratified it.

Ottilia Maunganidze, a South African-based legal researcher at the Institute of Security Studies (ISS), said having an African court to try international crimes is good because it can create jurisprudence for the continent.

However, the concern is that domestic courts have not developed mechanisms to investigate international crimes despite having the capacity to do so.

“It is only the Ugandan and Rwandan courts that have international crimes divisions. Senegal will soon start prosecuting former Chadian president Hissene Habre, but Kenya enacted the International Crimes Act that remains dormant,” Ms Maunganidze said.

After failing to persuade the United Nations Security Council to defer the cases facing Presidents Uhuru Kenyatta of Kenya and Omar al-Bashir of Sudan, the African leaders decided to expand the mandate of the African Court to include international crimes.

READ: Uhuru at ICC: Damned if he goes, damned if he doesn’t
However, they shielded themselves by inserting an immunity clause. The clause allows for investigations to be instituted against sitting heads of state, but they can only be prosecuted once out of power.

Donald Deya, the chief executive officer of the Pan African Lawyers Union (PALU), said the fact that African leaders are considering prosecuting their peers is a milestone because they have resisted accountability for the past 30 years. He expressed concern over the assumption that the roles of the African Court and the ICC are conflicting, when in fact they are complementary.

ICC will retain the right to investigate serving African heads of state and government for such crimes even if the African Court is operational because the Rome Statute does not recognise immunity. 

Yitiha Simbeye, a law lecturer at Open University of Tanzania, said the immunity heads of state enjoy is not based on the Vienna Convention but on customary international law pegged on sovereignty.

Dr Simbeye said citizens could strip their leader of immunity like the people of Yugoslavia did with Slobodan Miloševic, making him the first sitting head of state to be indicted for war crimes.

Immunity aside, the issue of financing the additional division will be a challenge, given that member states do not pay enough to the AU, leaving much of the finances to be covered by donors. The budget for the court is $8.6 million, and it will need an additional $5 million to $10 million annually. 

Selemani Kinyunyu, a programme lawyer with PALU, said the court is the third best financed institution after the AU Commission ($434 million) and Pan African Parliament ($29 million).