AFRICA DEFINE YOURSELF: AFRICAN UNION ADOPTED A RESOLUTION GRANTING SITTING PRESIDENTS IMMUNITY FROM PROSECUTION FOR WAR CRIMES AT AN AFRICAN COURT OF JUSTICE AND HUMAN RIGHTS SET UP TO TRY GRAVE CRIMES. By Senzo Scholar In my article entitled “AFRICA DEFINE YOURSELF: THE AFRICAN UNION IS EMBROILED AND ENMESHED IN ELITE SOLIDARITY AND EVINCE PERNICIOUS CAVALIER FOR THE ORDINARY AFRICAN CITIZENS” dated 27 June 2014, I argued that - “It was elite solidarity in a sense that heads of African states sympathized with their elitist counterpart Kenyan president Kenyatta. ….. Reverting back to the issue of elite solidarity, the African Heads of States held an African Union extra-ordinary summit on 12 October 2013 in elitist solidarity with their counterpart and successfully prevented the indictment of President Kenyatta by the International Criminal Court. …… However the African Union has failed to hold an urgent extra-ordinary AU Summit to discuss the attacking of Kenyans under the disguise of terror attacks, including the abduction of the 270 Nigerian girls, and alleged threats of terror attack in Uganda. This indeed reveal elite solidarity and pernicious cavalier for the ordinary African citizens. What is preventing the African Union from holding an extra-ordinary summit to discuss and find ways to combat the attacking of Kenyans under the disguise of terror attacks, and response to the abduction of the 270 Nigerian girls, and alleged threats of terror attack in Uganda? The answer is clear ELITE SOLIDARITY is the only agenda and concern worthy of an urgent African Union extra-ordinary Summit. ” In just less than five days, my case that the African Union is engulfed with “ELITE SOLIDARITY” is bolstered by the fact that the African Union, on 26 June 2014, during the AU Summit in Malabo, Equatorial Guinea adopted a resolution granting sitting presidents immunity from prosecution for war crimes at a continental court set up to try grave crimes. In layman terms this resolution implies that the African leaders who are sitting presidents are excluded from prosecution at the African Court of Justice and Human Rights. Legally speaking this simply means that ‘African ELITE’ called the African Heads of States for as long as they are sitting presidential incumbents, they are above the rule law in the statutory eyes of the African Court of Justice and Human Rights. This resolution makes the arms of justice for the African Court of Justice and Human Rights to be short such that they are not long enough to reach the elite called African heads of states. Therefore in other words the scale of justice in terms of this AU resolution must only tilt in prejudice of, and against all African citizens save the African heads of states. This is beyond elite solidarity indeed, in fact the African Union heads of states have conferred upon themselves unfettered statutory powers. This calls for an urgent review of the African Union Constitutive Act, as to whether as the standing constitution of the African Union, does it allow heads of states to be above the rule of law. If it does, this simply empowers the African heads of states to be the enshrined illegal unfettered powers against the material provisions of constitutional acts of most African states. Article 9 of the Constitution of the Republic of Ethiopia provide - “9(1) The Constitution is the supreme law of the land. Any law, customary practice or a decision of an organ of state or a public official which contravenes this Constitution shall be of no effect. 9(2) All citizens, organs of state, political organizations, other associations as well as their officials have the duty to ensure observance of the Constitution and to obey it. 9(3) It is prohibited to assume state power in any manner other than that provided under the Constitution” Section 3 of the Southern Sudan Constitutions provide- “3(1) This Constitution derives its authority from the will of the people and shall be the supreme law of the land. It shall have a binding force on all persons, institutions, organs and agencies of government throughout the Country. (2) The authority of government at all levels shall derive from this Constitution and the law. (3) The states’ constitutions and all laws shall conform to this Constitution. Section 2(1) and 2(2) of the Constitution of Uganda, 1995 respectively provide - “(1) This Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda.” “(2) If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void.” Section 2(1) and 2(4) of Kenyan Constitution Revision 2010, respectively provide that – “2(1) The Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government” “2(4) Any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid” Section 1 of the Constitution of Ghana provides - “(1) The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution. (2) This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.” Section 2 of the Republic of South Africa Constitution Act 108 of 1996 provides This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. Section 1 of the Constitution of the Federal Republic of Nigeria, 1999 provides “(1) This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria. (2) The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution. (3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void” As evinced above, it is evident that African Union Resolution is not in keeping with the spirit of most countries in Africa. However, one could challenge this thesis by submitting that the constitution of these countries do not have jurisdiction over the African Court of Justice and Human Right. It would be interesting to juxtapose the jurisdictional conflict thereof, as to which court would enjoy jurisdictional precedence in respect of the African Court of Justice versus the national courts of first instances. The African Union has made itself to be a Court of Law of first instance in Africa, and they enjoy this jurisdiction from the material provisions of Article 18 and 26 of the Constitutive Act of the African Union which respectively provide - Article 18 “Court of Justice 1. A Court of Justice of the Union shall be established; 2. The statute, composition and functions of the Court of Justice shall be defined in a protocol relating thereto” Article 26 “Interpretation The Court shall be seized with matters of interpretation arising from the application or implementation of this Act. Pending its establishment, such matters shall be submitted to the Assembly of the Union, which shall decide by a two-thirds majority” Just to put it in context, in terms of the definition as provided by the AU Constitutive Act, Court Justice is defined as ““Court ” means the Court of Justice of the Union” The Constitution Act of the African Union is silent about the African Court of Justice and Human Rights. However article 28 of the Au Protocol on the Statute of the African Court of Justice and Human Rights, gives it carte blanche jurisdiction on any (all) cases arising in Africa. Article 28 reads The Court shall have jurisdiction over all cases and all legal disputes submitted to it in accordance with the present Statute which relate to: (a) the interpretation and application of the Constitutive Act; b) the interpretation, application or validity of other Union Treaties and all subsidiary legal instruments adopted within the framework of the Union or the Organization of African Unity; c) the interpretation and the application of the African Charter, the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, or any other legal instrument relating to human rights, ratified by the States Parties concerned; d) any question of international law; e) all acts, decisions, regulations and directives of the organs of the Union; f) all matters specifically provided for in any other agreements that States Parties may conclude among themselves, or with the Union and which confer jurisdiction on the Court; g) the existence of any fact which, if established, would constitute a breach of an obligation owed to a State Party or to the Union; and h) the nature or extent of the reparation to be made for the breach of an international obligation. It can be prudently argued that in terms of material provisions of Article 28(a), (c), (d) and (e) confers upon the African Court of Justice and Human Righty supremacy over courts of first instances in African countries. There are technicalities which bears the material need for further legal clarification, such include the plausible argument that countries are not organs of African Union. Therefore technically the material statutory provision of article 28 of the AU Protocol on the Statute of the African Court of Justice and Human Rights, which gives the African Court of Justice and Human Rights jurisdiction on all acts, decisions, regulations and directives of the organs of the Union, has not legal hold on the states under the African union. In all sincerity and candour this argument is very legally punchy, due to the fact that the material provisions of the article 5 AU Constitutive Act, which defines the organs of the African Union to comprise only (a) Assembly of the Union; (b) Executive Council; (c) Pan-African Parliament; (d) Court of Justice; (e) Africa Union Commission; (f) Permanent Representatives Committee; (g) Specialized Technical Committees; (h) Economic, Social and Cultural Council; and (i) Financial Institutions; Article 5 of article 5 AU Constitutive Act, refers to institutions within and who aegis of the African Union, as organs of the African Union. It excludes the country, and as such the argument that countries are not organs of AU is legally substantive and sound. I would like to challenge the legal brains who are pan African to comment in this regard. And to advise further if indeed my thesis is legally sound. However, I am 100% certain of the fact that no constitution of any country in the world, does give its president (head of state) unfettered power to be above the rule of law. This brings into an interest PhD research topic which is “In the event where the statutory provisions of the African Union policy documents and its material resolution happen to be inconsistent with the constitutional provisions of the African country which a member state of the AU, does the countries rule of law take precedence or the AU legal provisions take precedence?” In short “When AU legal provisions are inconsistent with most of African countries’ constitutional act’s provisions which one should take precedence?” The question of the carte blanche jurisdiction of the Africa Court of Justice and Human Rights has not yet been tested in any courts of first instances within African states who are members of the African Union. This remains an interesting legal debacle especially in the interest of developing common law jurisprudence. Well reverting back to the question of unfettered powers, in the interest of justice everyone should be equal before the rule of law. At least this is the constitutional legal requirements in South Africa in terms of section 9 of the Bill of Rights. I am tempted to believe and strongly argue that in all African countries, no statutory provision(s) enshrines supremacy to a country head of state to such an extent that renders him/her above the rule of law. In the eyes of African Union the scale of Justice must not be balanced. It must tilt in favour of the AU heads of states. This is owing to the AU resolution that the sitting presidents in Africa who are members of AU Assembly are immune from facing the mighty arms of justice within the jurisdiction of the African Court of Justice and Human Rights. The AU elite called African heads of states, see themselves as above the rule of law in Africa. The long arms of justice are cut short by AU, as African heads of states are out of reach judicially. The AU unashamedly abuses its political powers by enshrining upon themselves unfettered powers to thwart and emasculate the supremacy of the rule of law in Africa, and equality before the rule of law for all Africans and African heads of states. This is tantamount to grave impunity, African Union’s rape of justice and crass violation of human rights that enshrines equality before the rule of law. It evince elite judicial solidarity and unjust discrimination against African citizens who are not members of the so called African Union elite. As Africans in Africa and in Diasporas let us unite against this African Union elite solidarity and the resolution that enshrines AU heads of states unfettered power to be above the rule of law. Aluta Continua!!
Posted on: Thu, 03 Jul 2014 11:36:05 +0000
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