For years, African governments have accused the international criminal court of unfairly targeting leaders from the continent. Their proposed alternative – the African court of justice and human rights – was intended to give the continent a home-grown solution. But on Monday, in a move that one rights campaigner called an own goal, leaders stripped the court – which has yet to begin work – of power to prosecute them for genocide, war crimes or crimes against humanity.
At an African Union summit last week in Equatorial Guinea – often spotlighted for its own rights abuses – heads of state and officials voted to grant sitting leaders and senior officials immunity from prosecution. The immunity would be valid only while officials are in power, but critics warned it could further encourage attempts to seize office for life. Zimbabwe's Robert Mugabe is the world's longest-ruling leader, and African heads of state make up roughly half of the globe's top 10.
The decision rolls back half a century of developments in international human rights and criminal justice law, said Kenyan activist Njonjo Mue. Other courts of last resort, such as the international criminal court (ICC), can prosecute sitting or past leaders who typically have immunity in their national courts.
"It's a joke," said Mue, programme director at the Nairobi-based Kenyans for Peace With Truth and Justice. "The [African] court has been cited as an African solution to African problems, but by granting themselves immunity they put themselves out of reach of the institution. Ninety per cent of the crimes [the court investigates] will be by senior officials in power … It's an own goal because it means victims have no choice but to turn to the ICC for justice."
The ICC was set up a decade ago to try those accused of the worst international crimes, but some global powers – including Russia and the US – don't recognise its jurisdiction. However, the Hague-based institution's most strained relationship has long been with African leaders. All eight people it has indicted are African. Its current chief prosecutor, Fatou Bensouda, from Gambia, faced renewed accusations of bias when prosecutors – as opposed to governments or the UN – initiated their first case, against the Kenyan president, Uhuru Kenyatta, and his deputy, William Ruto, for fomenting ethnic bloodletting after a disputed 2007 election. About 1,200 people died in the violence. The seven other African cases were all referred to the ICC by governments or the UN.
Survivors of some of the civil conflicts that raged through west Africa in the 1990s – and helped bring about the ICC's creation – also expressed dismay at the African court's draft constitution.
Sorie Sawanah, a former taxi driver, had his arm chopped off by drug-crazed child soldiers rampaging through Sierra Leone's capital, Freetown, in 1999.
"He doesn't want to speak on that – it just pains him," said his son Ibrahim, when told about African leaders being granted immunity from prosecution.
Both men said they had felt "at peace" in April 2012, when Charles Taylor became the first African president to be prosecuted at an international court. A UN-backed special court for Sierra Leone found the former Liberian president guilty of aiding and abetting war crimes and crimes against humanity for supporting rebels who carried out atrocities in Sierra Leone – such as the one in which Sawanah lost his arm – in return for "blood diamonds".
Not everybody is critical of the proposed new court. Assiatou Bamba, a trader, who was forced to flee with two children from her home in Ivory Coast's capital, Abidjan, during the 2011 conflict, said prosecutions went against a traditional spirit of reconciliation.
The former Ivory Coast president Laurent Gbagbo is awaiting trial at The Hague. Gbagbo, 69, is accused of plunging his country into civil war instead of relinquishing power after losing elections in 2010.
"Here in Ivory Coast we witnessed terrible things," said Bamba, whose home was shelled during the conflict. "But now, what good does it do to drag up the past? Besides, we have a culture of respecting those in position of authority, and – whatever wrong they have done – our leaders shouldn't be humiliated in a court."
Such sentiments of reconciliation were partly behind the creation of Rwanda's controversial Gacaca courts (although they did not try leaders). The word means "grass" in the country's Kinyarwanda language, referring to the place where communities traditionally gathered to resolve disputes. The courts combined modern criminal law with more traditional informal community procedures.
Bamba's husband, Aboubacar, dismissed arguments that reconciliation meant leaving crimes unpunished. "Being in a position of authority does not mean having the right to slaughter those beneath you like chickens," he said.
Amnesty International said the decision by African leaders to grant themselves immunity was "a step backward for justice".
"At a time when the African continent is struggling to ensure that there is accountability for serious human rights violations and abuses, it is impossible to justify this decision, which undermines the integrity of the African court of justice and human rights, even before it becomes operational," said the organisation's Africa director, Netsanet Belay