Shambolic, shameful and symbolic

This research paper analyzes the 2014 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (ACJHPR Amendment), specifically focusing on a provision that grants immunity from prosecution to serving African Union (AU) heads of state and senior officials. The author argues that this immunity provision is a symbolic reaction to the International Criminal Court's (ICC) focus on Africa and is contradictory to the AU's own constitutive principles and other regional agreements.

• On 27 June 2014, African heads of state adopted the ACJHPR Amendment to grant the African Court of Justice and Human and Peoples’ Rights jurisdiction over international criminal law, in addition to its human-rights and general international-law jurisdictions.
• The ACJHPR Amendment introduces Article 46A bis, which provides absolute but temporary immunity from prosecution for serving AU heads of state, government, and other unspecified senior state officials during their tenure.
• The author contends that the immunity provision is a 'symbolic fist shake' and a 'Machiavellian tactic' driven by the AU's hostility toward the ICC's investigations in Africa, particularly the cases involving President Omar al-Bashir of Sudan and President Kenyatta of Kenya.
• The immunity provision in Article 46A bis directly contradicts the AU's own Constitutive Act, which asserts the Union's right to intervene in member states in cases of genocide, war crimes, and crimes against humanity.
• The ACJHPR Amendment conflicts with the 2006 Great Lakes Protocol, which explicitly denies immunity to heads of state or government for international crimes.
• The author argues that the immunity provision creates a perverse incentive for abusive leaders to remain in power indefinitely to avoid prosecution, effectively rendering the court's jurisdiction over 'unconstitutional change of government' redundant.
• The drafting process of the ACJHPR Amendment is described as rushed and lacking transparency, with minimal consultation with NGOs, external legal experts, or government representatives.
• A positive aspect of the ACJHPR Amendment is the establishment of a Defence Office as an independent organ of the court, including the creation of a 'principal defender' with equal status to the Prosecutor.
• The author notes a legal contradiction regarding the 'crime of unconstitutional change of government'; while peaceful democratic protests that change government may be criminalized, violent acts intended to create 'general insurrection' may be excused if they are for liberation or self-determination.
• The practical implementation of the ACJHPR Amendment is unlikely in the near future because the 2008 protocol must first come into force, which requires 15 ratifications, but only five states have ratified it to date.

APA

du Plessis, M. (2014). Shambolic, shameful and symbolic. Institute for Security Studies. https://issafrica.s3.amazonaws.com/site/uploads/Paper278.pdf

Chicago

du Plessis, Max. Shambolic, shameful and symbolic. Institute for Security Studies, 2014. https://issafrica.s3.amazonaws.com/site/uploads/Paper278.pdf.

Wikipedia

{{cite report |last1=du Plessis |first1=Max |title=Shambolic, shameful and symbolic |publisher=Institute for Security Studies |date=November 2014 |url=https://issafrica.s3.amazonaws.com/site/uploads/Paper278.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{duplessis2014shambolic, author = {du Plessis, Max}, title = {{Shambolic, shameful and symbolic}}, institution = {Institute for Security Studies}, year = {2014}, month = nov, url = {https://issafrica.s3.amazonaws.com/site/uploads/Paper278.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }