How might the crime of Unconstitutional Change of Government (UCG) be used against the abuse of the Immunity Provision, 46A Bis?

Some have expressed concern about the interplay between the immunities provision and the definitions of crimes of Unconstitutional Change of Government (UCG), arguing that those most likely to be responsible for such crime are precisely those leaders who will be immune from prosecution.  In fact, as the analysis in both the crime and immunities sections demonstrates, the vast majority of perpetrators are likely to be private citizens, not officials with immunity.  In fact, many acts of UCG can be committed only by mercenaries, armed dissidents, or rebels. Even if their crimes were successful and these individuals seized power, under customary international law, immunity would likely not attach so long as their “government” remained unrecognized.

Recent events demonstrate a growing willingness – by the AU, regional communities, and civil society – to intervene to end such unconstitutional governments.  For example, shortly after then-President Yahya Jammeh indicated that he intended to remain in office despite losing the recent elections, both ECOWAS and the African Union moved to intervene, declaring the President’s actions untenable and warning of “serious consequences” if he refused to leave office.  Shortly thereafter, Yahya Jammeh stepped down.  If the criminal jurisdiction of the African Court had been in place, he could then have been held accountable before the Court.  Even if the AU’s intervention had been unsuccessful, however, the AU’s decision to cease recognizing Yahya Jammeh as President would likely have stripped him of any immunity, thereby enabling prosecution (though again, this would only have been relevant if the African Court’s criminal jurisdiction already had been in place).  And in Burkina Faso, then-President Blaise Compaoré’s attempt to revise the constitution to enable him to stay in office led to a popular uprising that forced him to resign.  As these examples show, the environment in Africa is rapidly shifting and there is an opportunity for swift justice even for heads of state and senior state officials who are increasingly being forced from office when they attempt to unconstitutionally prolong their power.

And with respect to the remaining acts constituting the crime of UCG, although the African Court would not be able to prosecute heads of state and other senior state officials during their tenure in office, they could be held accountable after leaving office. In fact, it is important to bear in mind that the immunities recognized in Article 46A bis are a form of immunity ratione personae, meaning that the immunity attaches to the office and is possessed by the officeholder only so long as he or she remains in office. As mentioned earlier in another brief, immunity ratione personae as opposed to immunity ratione materiae, has traditionally been applied to those State agents with high-level responsibility for foreign affairs in order to ensure that these individuals can travel freely without harassment by other States, thereby promoting effective communications between States. However, because immunity ratione personae is designed to ensure that high-level officials can carry out their functions, its protections are temporary and end when the individual leaves office.