ADDIS ABABA - Complaining of bullying in the international justice arena, African leaders are forging ahead with plans to set up their own regional court -- and give themselves immunity in the process.
The African Union (AU) accuses the Hague-based International Criminal Court (ICC) of anti-African bias and even racism, and plans for a home-grown mechanism are inflaming a stand-off over who deals out justice on the continent.
In a decision last month, AU leaders unanimously agreed to grant sitting heads of state and senior government officials immunity from prosecution at the African Court for Human and Peoples' Rights, which is not expected to get off the ground for several years.
"The African Union, as a regional organisation, deserves the right to enact its own international law," explained Vincent Nmehielle, AU director of legal affairs.
For him, Africa's relationship with ICC has become a David versus Goliath struggle, and he is fed up seeing African nations singled out as the weakest link on the world stage.
"We know the skewed nature of international criminal justice, the powerful versus the weak, and justice is only such that serves the powerful and not the weak," he argued.
The Hague-based ICC rules that no one is protected from prosecution, but many African leaders are quick to point out that all of the ICC's eight cases are against Africans.
Their initial enthusiasm for the tribunal -- four of the ICC's cases were referred to it by African governments -- is now wearing thin.
Among Africa's 54 countries, 34 have signed on to the ICC -- but several leaders are now questioning that commitment. The African court, which was first established in 1998, will not necessarily replace the ICC but could be used by countries that are not members of the international court.
The ICC is pursuing, among others, Sudan's Omar al-Bashir, indicted for crimes against humanity in war-torn Darfur, and Kenyan President Uhuru Kenyatta and his deputy, William Ruto, who are on trial for allegedly orchestrating post-election violence in 2007-2008 that left at least 1,000 people dead.
Atter intense lobbying by Kenya, the AU requested last year for the cases against Kenyatta and Ruto to be deferred on the grounds they were too busy with national security issues, but this was rejected by the United Nations.
"No action has been taken on Syria, Sri Lanka or the invasion of Iraq, yet African leaders are the ones who have to get lawyers. What we're dealing with here isn't justice, it's bias," fumed one senior African diplomat.
"There's absolutely no reason why Africa should put up with it. We managed to shake off colonialism, and we'll shake this off too. The ICC is not serving Africa, it's punishing Africa, so we're better off finding our own solutions."
A step backwards
But rights activists and supporters of international justice say the move is disappointing, ignores the voice of the victims and flies in the face of AU's core principle of preventing and punishing gross human rights violations -- such as genocide in Rwanda, mass rape in the Democratic Republic of Congo and ethnic cleansing in the Central African Republic.
"It's clearly a step backwards. The constitutive act of the AU was about intervention in crimes against humanity and yet now you have a situation where a serving head of state might not be prosecuted," said Alex Vines of Britain's Chatham House.
He warned the immunity clause could alienate international donors who fund the bulk of the pan-African bloc's peace and security budget.
"Donors will be thinking through what this decision actually means in terms of their partnerships with the African Union," he said.
Jemima Kariri, senior researcher at South Africa's Institute for Security Studies, said the decision to grant immunity -- which must be green lit by 15 AU member states to come into effect -- could also undermine democracy.
"If a sitting president is awarded immunity... they would work as hard as possible to ensure that they remain in power forever," she said.
Africa is home to some of the world's longest serving leaders, including Equatorial Guinea's Teodoro Obiang Nguema Mbasogo, in power since 1979, and Zimbabwe's Robert Mugabe who has been in office for 34 years.
But Nmehielle said the presumption leaders will cling to power to avoid punishment "has never been tested."
"It presupposes that African leaders will always be bad and will always do bad stuff," he said.
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