May I just add one dimension to the excellent article on the above subject in your online paper of today found here. While I entirely agree with the conclusions drawn in this article, I would just like to add one aspect to it: the international dimension of the Head of State Immunity.
But before I do this, I must make one observation which is that many countries have this clause cited in your excellent article by their constitutions. As you will recall, this is the same clause that cheated the former Chilean dictator General Pinochet after he retired from office to continue performing public functions including undertaking that visit which took him to the United Kingdom where he was arrested on indictments issued against him in other European countries where his victims of his barbarous misrule lodged formal complaints. Save for merely mentioning it, Pinochet’s case was in public domain and there will be no additional value repeating it here. On return home after British authorities by the narrowest of margins in the House of Lords set the arrest aside but not before he tested deprivation of liberty, his Parliament removed his immunity and he was prosecuted at home. The rest is history.
As indicated above, immunity clauses are widespread in many countries’ constitutions. Their origins may have been genuine being designed not to confer decorum on the holder of the office of head of state as such but to genuinely protect him or her from actions criminal or civil which while innocently and in good faith he/she performed the office of head of state may have committed or omitted to do In simpler terms, the law recognized the reality that a holder of an office like that may inevitably ‘step’ on citizens’ tolls and hence the latter’s grievances which may end up in court. Therefore, the law came to act as some kind of shield to protect the head of state both while in and outside office.
South Africa stands in stark contrast to most jurisdictions in this regard. The South African constitution simply doesn’t have any clause on immunity. Most of your readers will recall that it is on the basis of this that incumbent president Jacob Zuma is as we read this currently ‘in’ court dragged there by opposition Democratic Alliance (DA) who are boldly challenging the manner in which the previous Director of the National Prosecutions Authority Advocate Mpshe, now acting Judge of the High Court, dropped state charges of corruption leveled against president Jacob Zuma. On his part, president Zuma realizes the danger this case poses to his dignity and that of his political life and of course he did put several measures to counter any such prosecution most notably use of electorate on the ground to keep him in office because that way, he is practically protected even if the law is silent.
The point I wanted to share though on this particular aspect is that if you look at the international dimension of Head of State immunity, you soon realize that however cleverly these clauses may be crafted, they have no status in international law. In international, it has long been settled that anyone subject of allegations of committing international crimes whether head of state or not and whether in or out of office is amenable to prosecutions. There is a court ruling to this effect. The Sierra Leone Special Court of Sierra Leone (SCSL) has ruled in the Charles Taylor first case (not this one in The Hague in which he was slapped with a 50 year sentence anyway which he is currently appealing) that Head of State immunity does not attach to such an individual accused of perpetrating international crimes. Charles Taylor brought this case while still in office when his indictment and arrest warrant was opened and had argued that the indictment and warrant so issued violated his Head of State Immunity. Unfortunately for him, the judges disagreed and we know where he is now.
Except it is in the genes of leaders not to learn, it is now a well settled law and practice that an individual who is suspected of perpetrating international crimes, namely, genocide, war crimes; and crimes against humanity simply cannot be allowed to hide under the statutory immunity clause in his or her countries’ constitution or organic law.
Clearly, international law has advanced while local law of most jurisdictions remains static thereby creating this open lie. Citizens would understand that while Zambia has an immunity clause in the constitution which in any case is not absolute, the Zambia has ratified the Rome Statute of the International Criminal Court (ICC) against the background of renewed enthusiasm in the United Nations through the Security Council to establish ad hoc tribunals in Rwanda, former Yugoslavia, Sierra Leone already mentioned and in other countries.
Professor Michelo Hansungule