Prosecuting International Crimes in Africa - PULP - University of ...

Immunity of state officials and prosecution of international crimes 59
Article 10 of the 2002 Draft Bill states that the law shall apply equally
to all persons with no distinction based on their official position. In
particular, official capacity as the head of state or government, a member
of a government or parliament, an elected representative or official of a
state shall in no case exempt a person from criminal responsibility in the
eyes of this law, nor shall it constitute in of itself a ground for reduction of
sentence. The provision provides further that those ‘immunities or those
special procedural rules that may attach to the official capacity of a person,
pursuant to the law or under international law shall not bar the
jurisdictions from exercising their competent jurisdiction over that
person’. 134
6 Conclusion
This chapter has discussed the immunity of state officials – from the
persective of customary international law, conventional international law
and national law – with a particular focus on selected African national
jurisdictions. Although a few African states have outlawed the immunity
of state officials, others still recognise it. South Africa, Uganda, Senegal,
Burkina Faso, Niger, Kenya, Congo, Burundi, Rwanda and Ethiopia are
models for Africa on this.
International and national courts which have prosecuted state officials
have faced challenges. Such challenges include jurisdictional matters and
the enforcement of warrants of arrest and subpoenas against sitting state
officials. Despite these challenges there is hope for the future because the
statutes of international courts and international conventions prove clarity
on the prosecution and punishment of international crimes. International
law and courts have long held that the immunity of state officials is not a
defence from holding state officials criminally responsible for international
crimes. Neither is it a ground for mitigation of punishment for such
officials convicted of international crimes.
However, state officials may still escape prosecution before foreign
national courts, even for international crimes, as decided by the ICJ in the
Arrest Warrant case in 2002. Nevertheless, the precedent from Ethiopia
indicates that Ethiopia’s national courts were able to prosecute former
state official of Ethiopia, Mengistu Haile Mariam. They sentenced him to
death, albeit in absentia. National jurisprudence on the immunity of state
officials is still developing and would have a future impact as Africa is
moving towards adopting a treaty to enable the African Court of Justice
and Human Rights to establish a Chamber with jurisdiction over persons
who commit international crimes in Africa, including state officials.
134 Art 10.