Implications of the African Union’s stance on immunity for leaders on conflict resolution in Africa: The case of South Sudan and lessons from the Habré case

2.1 International laws on justice

Parallel to the paradigm shift from the idea of sacrosanct sovereignty to sovereignty as responsibility, the notion of justice also has shifted from a national confine to the greater role of the international community in seeking justice, especially in conflict areas. This development is aptly captured by the 2004 UN Report of the High-Level Panel on Threats, Challenges and Change which surmises that any threat to a state and to human life en masse constitutes a threat to international security. One of the primary normative and institutional frameworks for international justice is international humanitarian law.

International humanitarian law serves as an international legal framework to limit the effect of armed conflict so as to mitigate suffering. It is founded on two international conventions, namely, the Hague Convention (1907) that restricts the means and methods of warfare, and the four Geneva Conventions (1949) that provide for the protection of certain categories of vulnerable persons: those wounded and sick in armed forces in the field; the wounded, sick and shipwrecked members of armed forces at sea; prisoners of war; and civilians not belonging to the armed forces, including non-nationals and refugees.18 These international laws are applicable to all states and all actors in situations of armed conflict. 19

Pursuant to this law and in recognition of the limitations of domestic courts, the UNSC established ad hoc international tribunals, such as those in the former Yugoslavia, Rwanda and Sierra Leone, to address the legal responsibilities of individuals in relation to war crimes, genocide and crimes against humanity. In 2002 the ICC was established by the Rome Statute as a permanent international court with a mandate to prosecute those responsible for international crimes.20

The UN also has advanced the notion of transitional justice, which serves as the ‘the full set of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuse, in order to secure accountability, serve justice and achieve reconciliation’.21 Transitional justice involves a range of judicial and non-judicial mechanisms including individual prosecutions, reparations, truth seeking and institutional reform. In attaining justice, international courts, such as the ICC and the African Court, are meant to complement national judicial institutions. They serve as last resorts to justice in light of the inability or unwillingness of domestic courts to prosecute cases genuinely, especially in states in crises and fragile states. Hybrid courts such as the anticipated Hybrid Court for South Sudan are meant to comprise both international and national judicial officials to ensure that the international community supports weak national judicial systems in pursuing justice. The South Sudan Hybrid Court is meant to be established by the AU with the cooperation of the government. These mechanisms serve to prevent impunity and to ensure the accountability of domestic elites that often operate within the confines and protection of the sovereignty of states.

Although transitional justice often takes place after some stability has been restored in conflict states, the idea of international justice is meant to deter would-be perpetrators of crimes. The idea also serves to nudge conflict parties to avoid human rights violations and pursue a timely conflict resolution, which entails addressing the causes of conflict to ensure lasting peace and security.

2.2 Construction of the immunity clause in Africa

The idea of common goals and values dominates policy and inter-state discourses of African intergovernmental organisations. While there are divergences in the values and priorities in Africa, the idea of pan-African unity, destiny and cooperation has remained a motivating factor for inter-African cooperation through continental and regional organisations.

It is within the constructivist idea of common identity and unity for a common cause that the AU, which is made up of African governments, advances the immunity clause for sitting leaders and senior government officials in Africa. While arguing against the ICC’s alleged witch-hunt of African states, the AU cites the need for stability in African states, which could be jeopardised by the trial of sitting heads of state and senior officials.22 By extension, the collective decision of AU leaders for immunity influences the behaviour of governments and leaders. AU member states such as South Africa, for instance, refused to hand President Omar Bashir over to the ICC when he visited the country for the 2015 AU Summit. Besides South Africa’s particular national considerations, the decision was based on the collective decision and idea of immunity for sitting leaders as constructed by the AU. Reports also note that South Africa had signed a memorandum of understanding with the AU that it would not arrest Bashir. The initial withdrawal by The Gambia, South Africa and Burundi from the ICC in 2016 was undertaken in the knowledge that the AU would support such a move. Indeed, while agreeing to the AU’s collective withdrawal strategy, the AU Assembly praised these countries even though South Africa and The Gambia have abolished their withdrawal decision. To avoid possible confusion on the continent, the AU included the immunity of sitting leaders in article 46Abis of the Amendment Protocol.

Although the Hybrid Court for South Sudan in writing does not provide for the immunity of government officials, South Sudanese officials are conscious of the AU’s traditional stance on immunity. This stance includes the precedent set by the AU in terms of the rejection of trials against incumbent leaders and senior government officials. As such, the calculations of the warring parties of South Sudan rightfully may be influenced by the AU’s immunity perspective, as discussed below.

3.1 Liability of domestic leaders

A study reveals that, when asked about the cause of the 2013 conflict,

the majority of the respondents cited a struggle over SPLM leadership (52%), an attempted coup (21%) and a clash between members of the army (17%) as the main causes of the conflict ... a clear majority identifies the main problems as being at the leadership level (67%). 28

The findings of the AU Commission of Inquiry on South Sudan corroborates this conclusion by noting that the conflict centres upon the leadership figures of South Sudan, particularly within the SPLM. The Commission’s report revealed that ‘Riek [Machar] wanted to be the Chairman, Rebecca Nyandeng wanted to be the Chairperson, Pagan [Amum] wanted to be Chairman and Salva [Kiir] wanted to continue. That was the problem.’ 29

Prior to independence significant differences in the leadership, especially between President Kiir and his Vice-President, were overlooked for the sake of unity. The division led to the stripping of executive powers from Machar in May 2013 and his eventual dismissal on 23 July 2013 along with most of the Cabinet (with the exception of four Ministers) and the suspension of the SPLM Secretary-General, Pagan Amum, for alleged corruption.

Markedly, during the meeting of the SPLM’s National Liberation Council in Juba in December 2013, fighting broke out between soldiers loyal to the President and those in support of Machar. The fighting soon spread to the general population in other regions. The report of UNMISS notes that South Sudan’s military and National Security Service (NSS), including the opposition forces, ‘operate in a space above the law and with virtual impunity’.30 The victims of the power tussle are people in villages that have little or no say on who holds leadership positions in the SPLM. 31

Kiir and Machar, the main rivals in the conflict, have a significant responsibility regarding the human rights violations. However, since most of the peace process entails them serving as top leaders in South Sudan, questions are raised as to how to hold them accountable. Beyond the Kiir and Machar divide, various other leaders have since broken away from Kiir and Machar’s faction to form their own armed groups. Irrespective of their claims to forming armed movements, the creation of new movements partly occurred because their participation in the peace process and their chances of gaining senior leadership positions in a new government depend on the extent of the threat posed by their groups.

For instance, Lieutenant-General Thomas Cirillo Swaka, a former deputy chief of general staff for logistics, in February 2017 left the Kirr government to form the National Salvation Front (NAS) . Lam Akol, a former Minister of Agriculture, also left the government to form the National Democratic Movement in 2016. There is also Peter Gatdet’s South Sudan United Movement (SSUM) of 2016 which splintered from the Federal Democratic Party/South Sudan Army Forces (FDP/SSAF). The FDP/SSAF , currently led by Gabriel Changson, had also defected from Machar’s group in mid-2015. The most recent armed group is that of Paul Malong who formed the South Sudan United Front (SSUF) on 9 April 2018. Malong was the former Chief of General Staff of the army who was sacked in May 2017 and placed under house arrest until November 2017.

Other examples include the South Sudan Federal Democratic Party (SSFDP) of 2015; the South Sudanese Patriotic Army (SSPA) of 2015; and the South Sudan National Movement for Change of 2017, among many others. Some of these groups formed the South Sudan Opposition Alliance (SSOA) to work together during the peace process, but the strength of the armed groups differs and reaching agreement within the alliance remains a major concern.

Due to the proliferation of armed groups, the recent Khartoum peace deal led to the creation of additional vice-presidential positions.32 The initial deal of 2015 contained a First Vice-President position and a Vice-President position.33 The current deal requires five vice-president positions including the First Vice-President and four other vice-president positions. This arrangement entails three additional vice-presidential positions to satisfy the interests of the warring leaders. The Council of Ministers has also increased from 30 as provided by the initial ARCSS to 35 in the new deal. The number of the members of the national legislative assembly has also increased from 400 to 550 in the new deal. The need for inclusivity is vital. However, violence secured those governing positions for the warring leaders. In line with the AU’s stance on immunity, President Kiir and First Vice-President Machar and the other vice-presidents could be shielded from prosecution while in office. Other elites that make up the executive and the national assembly also could raise their role as senior leaders in the government.

Given that violence remains the ticket to sustained leadership positions, a genuine attempt at addressing the crisis requires addressing the lack of accountability in the country regardless of their positions in the current governing arrangement. Apart from the call by human rights activists for accountability, South Sudanese also have been vocal in requesting justice for the crimes in the region, as discussed in the next section.

3.2 Quest for justice in South Sudan

Several research findings observe that the indiscriminate violence in South Sudan is the result of a culture of impunity and lack of accountability in the region.34 For over 40 years of civil war in the region, South Sudan has not witnessed a history of comprehensive justice and accountability for war crimes and crimes against humanity.35 Although much of the conflict faced by South Sudan before 2011 was between the SPLM army (SPLM/A) and the Khartoum government in the north, there has been a significant internal communal and leadership conflict in South Sudan that did not receive adequate attention due to the predominant description of the conflict as something happening between the north and south of the Sudan.36

The Comprehensive Peace Agreement (CPA) that ended the civil war with Sudan in 2005 granted amnesty to the conflicting parties, thereby shelving the question of the accountability of the actors on both sides of the conflict. In Southern Sudan leaders of the warring factions were rewarded with top positions in government institutions, thereby creating the impression that violence pays and the bigger your gun, the better prospect of prominent recognition you will have. The historical negligence displayed towards the gross human rights abuses in the region entails that conflicting parties are unaware of or nonchalant about international justice.

After independence in 2011 already there had been sporadic outbreaks of violence in South Sudan before the outbreak of the civil war in December 2013.37 This situation highlights the consequences of lingering impunity. Since 2013 when the civil war erupted the parties to the conflict have defied at least six major ceasefire deals, including those signed in January 2014, May 2014, February 2015, August 2015, December 2017 and as recently as June 2018. Indeed, heavy fighting often is witnessed hours after the signing of a ceasefire deal. This reality indicates that another move towards amnesty in the region will perpetuate the impunity.

A study by Deng et al reveals that there is a high demand for justice and accountability in South Sudanese societies.38 A survey of 2016 shows that a significant number of people do not believe that amnesties can contribute to lasting peace: ‘Forty-eight per cent of respondents thought that amnesties would have either a negative effect (32%) or no effect (16%) on prospects for peace, while 47 per cent thought that it would have a positive impact on prospects for peace.’39 A study conducted by the American Bar Association Rule of Law Initiative in South Sudan in 2014 revealed that ‘every person interviewed indicated that there must be accountability, at all levels, for the atrocities committed during the current crisis’.40 Even though the survey was taken in the context of the ongoing conflict, the opposition to amnesty demonstrates the frustration of people about the lack of accountability and the senseless suffering of victims in the region. One study highlights the need to tame the gun class who use violence as a means to achieve their narrow interests in South Sudan.41

Justice becomes imperative to break the cycle of violence and reverse the legacies of past human rights violations and widespread impunity. What is certain is that South Sudanese justice institutions lack capacity, institutional means and resources to satisfactorily prosecute international crimes. In addition, their independence and impartiality cannot be guaranteed.

3.3 Inefficiencies of domestic justice in South Sudan

A number of studies observe that South Sudan’s statutory judicial systems have not proven to have the capacity to produce tangible results on issues of justice or holding perpetrators accountable. A study by the American Bar Association Rule of Law Initiative highlights the gross limitations of the justice institutions in terms of investigation, documentation and prosecution of human rights abuses.42 Willems and Deng observe:43

South Sudan’s justice system has a plural justice system comprised of parallel systems of statutory courts presided over by judges and trained legal personnel and customary courts presided over by chiefs and elders. The statutory courts are structured in a single hierarchy with the Supreme Court as the highest court of law, followed by three courts of appeal, high courts in each of the ten states and magistrate courts at the county level. But those courts have not yet been established. Indeed, there are not even magistrate courts present in many of the counties.

As in South Sudan, justice remains unfulfilled for many Africans wanting accountability, reconciliation and lasting peace since the early 1990s due to weak justice institutions.44 This situation often has encouraged aggrieved actors to use force and extrajudicial approaches to realise their ends. The limitations of the internal judicial system of South Sudan have already contributed to making communities ‘carry out violent attacks against neighbouring communities in retribution for harm that was done to them and as a deterrent against future attacks’.45 In a statement to the AU PSC, President Mogae noted that ‘if the legacy of conflict and impunity is to be finally broken in our continent’s newest state, we must also act and not disappoint a new generation of South Sudanese’.46

President Kiir was quoted as saying: ‘I will not protect anybody, and I have instructed the investigation committee ... to see that all these people who committed crimes must be punished, if need be, with death.’47 However, the government has not made a comprehensive effort to hold people accountable since the war began in 2013. On 30 August 2016 the government through the military court made a token attempt to convict 60 soldiers for murdering civilians and looting during the fighting in Juba in July 2016.48 This attempt, however, does not account for the systematic killing of civilians. The opposition leader, Machar, had also promised to investigate a massacre in Bentiu town, Unity state, by his rebel forces in April 2014, but no findings had been made public.

Moreover, although the leaders seem to suggest that field soldiers are culpable for crimes against humanity during the war, it is the warring leaders that have a central role and responsibility for the war crimes. Notably, criminal accountability involves different aspects of accountability and different levels of perpetrators. Leaders and senior military officers of warring parties may be responsible for human rights violations by subordinates. As discussed earlier, a number of reports hold leadership figures accountable for being the primary actors that orchestrate and lead the perpetration of war crimes and crimes against humanity.

Cognisant of the limitations of national courts, chapter 5 of the ARCISS provides for the establishment of the Hybrid Court for South Sudan to try and to prosecute war crimes, genocide and crimes against humanity. The question then is whether the HCSS can lead to effective justice. The following section discusses the responsibilities of the HCSS and how the AU’s immunity principle thwarts the deterrent capacity of the HCSS.

4.1 Implications of the African Union’s immunity principle for conflict resolution

As argued earlier the AU over time has developed a principle of immunity for sitting heads of states and senior government officials. The AU’s immunity principle is at the heart of the well-known conflict between the AU and the ICC, a conflict that has resulted in the AU exploring options for the collective withdrawal of African states from the ICC. This immunity clause has been included in article 46Abis of the Amendment Protocol, which provides that sitting heads of state and senior government officials will not face trial by the African Court. The AU has ardently argued in favour of the immunity principle in many international forums.

Thus, even if the AU intends to prosecute the leaders of South Sudan, such efforts will go against the organisation’s insistence that the prosecution of sitting leaders and senior government officials is detrimental to sovereignty and the stability of African states.50 This principle, which remains a topical issue on the continent, will cause affected groups to consider the AU ‘hypocritical’ - at least - if it should go ahead and try incumbent leaders and senior government officials in South Sudan.

A strategy paper emanating from a conference on truth, justice and reconciliation in South Sudan in August 2014 recommended that any transitional government that will be created should be bound through the peace agreement to ‘ratify the Rome Statute, and to commit to doing so in any peace agreement that comes from the IGAD peace talks’.51 The intention is to provide the ICC with the opportunity to intervene if the leaders attempt to undermine the effort of the HCSS. However, the African mediators did not consider any role for the ICC on the matter in view of the differences and fraught relations between the organisations. The African mediators were comfortable with the AU Commission - not the UN or another international institution -having jurisdiction over the justice outcomes. This decision is particularly important to protect the value interests of African actors, especially as it pertains to the nature of justice.

In this regard leaders of the warring factions in South Sudan are not ignorant of this value held in the AU that is charged with establishing the HCSS. The new deal gave leaders of the warring factions leadership and senior positions in the transitional government as well as opportunities for future leadership positions in a stable South Sudan. Hence, the AU’s immunity principle does little to deter the South Sudanese parties from continuing the war as they deem fit since those included in leadership positions are the warring leaders. Holding leadership positions, the AU will be in a difficult position if it attempts to try these persons.

It should be noted that the AU’s immunity principle is not meant to prevent any future trial or prosecution of incumbent leaders and senior government officials provided they no longer are in power. However, the penchant of some regimes to hold on to power in Africa entails that justice remains a mirage for many victims of crimes committed by incumbent regimes. Notably, out of the 33 countries with term limits in Africa, 12 countries have sought to amend their constitutions to extend or remove these limits.52 The recent trend in the DRC, Rwanda, Burundi, Uganda and Benin is evidence of the proclivity of leaders to remain firmly in office. Disturbingly, those countries that have experienced extensions in term limits are also facing human rights challenges. The stance of the AU thus creates a platform for leaders to remain in power, to avoid probes or abdicate powers only to their allies. In the East African region in which South Sudan is situated there is a strong trend for leaders to remain in power.

Without attempting to foretell the future of South Sudan, it is possible to foresee that the current leaders do all they can to remain in power for a long time. During this time, vital evidence could be lost and a possible resurgence of conflict could detract attention from issues of justice. The South Sudanese agreement does not entail that the leaders of the transitional government are not to run for the leadership in post-transition South Sudan as was the case in Madagascar. Madagascar underwent a political crisis in 2009 when Andy Rajoelina took control from President Marc Ravalomanana with the support of the military and opposition parties. The movement was regarded by the international community as a coup d'état.

The international community advanced an election in 2013 without the candidacy of Ravalomanana and Rajoelina who were the key divisive figures in the country. The 2013 elections led to the election of Hery Rajaonarimampianina as President. Although some political crises remain in the region, the elections provided an avenue for the country to explore stability through a new leadership, thereby checking the powers of the previous leaders involved in the upheavals. Even though the crisis in South Sudan differs, the continued role of the protagonists of war in the future of South Sudan’s threatens the attainment of a lasting peace and effective justice.

Will the leaders facilitate the functioning of the HCSS? The transitional government is expected to enact legislation that will formalise the AU-led HCSS into law in South Sudan. Although the ARCSS is silent on the role of the transitional government in the HCSS, chapter 5(1.2) clearly states that the transitional government would define the mandate and jurisdiction of the three institutions including, but not limited to, their establishment and funding, actors, and defined processes for public participation in the selection of their respective members. This position entails that the transitional government will play a crucial role in initiating ‘legislation for the establishment of the transitional justice institutions’ in line with chapter 5(1.1). Chapter 5(1.5) expects the transitional government to cooperate with the AU and the international community in operationalising the Court.

This gives the transitional government some leverage in influencing the establishment and mandate of the HCSS from the outset. The cooperation of the transitional government, however, is subject to question. Notably, after the formation of the transitional government, a news item appeared in the New York Times, allegedly written by Kiir and Machar. The piece holds that South Sudan requires merely truth telling and not trials:53

We intend to create a national truth and reconciliation commission modelled on those of South Africa and Northern Ireland. This commission would have wide-ranging powers to investigate and interview the people of South Sudan - from the poorest farmer to the most powerful politician - to compile a true account of events during the war. Those who tell the truth about what they saw or did would be granted amnesty from prosecution - even if they did not express remorse.

In contrast to reconciliation, disciplinary justice - even if delivered under international law - would destabilise efforts to unite our nation by keeping alive anger and hatred among the people of South Sudan ... That is why we call on the international community, and the United States and Britain in particular, to reconsider one element of the peace agreement to which they are co-signatories: support for a planned international tribunal, the Hybrid Court for South Sudan. We call on them instead to commit to global backing for a mediated peace, truth and reconciliation process.

Regardless of the legitimacy of the piece, the item highlights the disposition of the leaders to the question of justice in South Sudan. In this regard it is debatable how the transitional government would work with the AU to facilitate the establishment of the Court. Keppler notes that

after leading South Sudan into a two-year nightmare, its leaders Salva Kiir and Riek Machar now want to shield themselves and anyone else implicated in wartime atrocities from justice ... It is obvious why these leaders want to avoid trials - they were commanders-in-chief of forces implicated in grave crimes ... during the country’s bloody civil war.54

During the recent peace process there has been less discussion of the role of the HCSS. While truth telling is crucial to the process, it is not an alternative for justice. The claim that justice will impede peace is rather untrue given the experiences in Sierra Leone, Chile, Chad and the former Yugoslavia which show that criminal trials do not undermine peace; rather they foster reconciliation.

October 2016 marked the sixth-month deadline for the finalisation of the memorandum of understanding, the mandate and jurisdiction of the HCSS in line with the ARCSS of 2015. Dating the establishment of the transitional government back to April 2016 when Machar returned to Juba and was made the First Vice-President, the mandate and jurisdiction of the HCSS should have been finalised in October 2016 and the operationalisation of the Court should have been in April 2017. The AU and South Sudan have signed a memorandum of understanding55 to operationalise the HCSS, but it is not yet functional and the ongoing instability has created uncertainty around it. Moreover, IGAD mediators have not prioritised the deterrence capacity of the HCSS. The revitalised ARCSS does not contain a timeline of action on the HCSS. Even during the recent South Sudan peace process, IGAD argued against punitive measures on the warring elites stating that they will be detrimental to efforts to secure a peace deal from the warring parties.56 The recent peace deal also did not contain international enforcement mechanisms as the implementation of the deal depends on the goodwill of South Sudanese elites.57

Given the disposition of the transitional government and the AU towards immunity for sitting leaders, the HCSS, when established, could end up trying and prosecuting scapegoats within the factions of Kiir and Machar while the top leaders go free despite their alleged involvement in ordering, instigating and planning the war crimes. It is thus argued that the possibility of effective justice in South Sudan is contingent on a policy/principle shift by the AU from immunity for sitting leaders to non-immunity on the continent.

While it is possible that justice against leaders could be attained when they no longer are in power, lessons from the Habré case highlight additional variables that complicate the quest for justice on the continent.

4.2 Lessons from the Habré case

The successful prosecution of former Chadian President Hissène Habré by an AU-mandated court in Senegal raises optimism about the AU’s commitment to justice.58 The AU-backed court sentenced Habré on 30 May 2016 to life imprisonment for crimes against humanity during his eight-year rule (1982-1990). Habré, who fled to exile in Senegal in 1990, was found guilty of committing heinous atrocities, including 40 000 politically-motivated murders and 200 000 cases of torture, as revealed by the Chadian National Truth Commission in May 1992.59 Many survivors gave searing accounts of various forms of torture and inhuman treatment they suffered. These included ‘attacks against the Hadjerai ethnic group (1987), the Zaghawas (1989), and southern populations including the so-called ‘Black September’ in 1984; the arrest and torture of political prisoners, and the treatment of prisoners of war’.60 However, it took the victims of his rule over 17 years to attain justice.

It should be emphasised that the trial of Habré was made possible by the perseverance of Habré’s victims with the support of Human Rights Watch and other human rights organisations. In January 2000 some Chadian victims brought complaints against Habré in Senegal, a decade after his deposition. Initially, the Senegalese court refused to prosecute Habré on the grounds that it did not have jurisdiction to try crimes committed in another country. The victims resorted to Belgium, given that the country has a universal law to try international crimes committed across the globe. In 2005 Belgium issued an arrest warrant for Habré after about four years of investigation.

The Senegalese government decided to arrest Habré. However, instead of extraditing him to Belgium as requested by the Belgium judiciary, the government - following a request by the AU in July 2006 - decided to prosecute Habré on behalf of Africa. The Senegalese Constitution was amended in 2008 to allow the prosecution of war crimes and crimes against humanity in and out of Senegal. After some political wrangling and financial considerations, the AU and Senegal signed a deal to set up an Extraordinary African Chamber in August 2012 to try Habré. The Extraordinary African Court was formally inaugurated on 8 February 2013. The trial began on 20 July 2015 and ended on 11 February 2016 after the testimony of 93 witnesses had been heard.

Although the trial was considered a major step forward for justice in Africa, as noted by various media reports, it was only made possible as a result of a number of circumstances, which casts doubt on the optimism about the AU’s future role in pursuing justice in Africa. Events leading to Habré’s prosecution demonstrate that justice for crimes committed by incumbent leaders in Africa is achieved mainly when the leader loses political support and patronage.

Notably, the incumbent President of Chad, General Idriss Déby Itno, deposed Habré in 1990. Since 1990 Habré maintained a low profile in Senegal where he went into exile, while Déby fortified political power in Chad. When Habré was to be tried, the Chadian government provided support for the prosecution. In 2002 the government permitted the trial of Habré outside Chad.61 Chad made the largest donation of US $3 743 000 out of the approximately $11 million budgeted for the trial. Ironically, there was no consideration of the role of President Déby Itno who ‘was commander-in-chief of Habré's forces during the period known as ‘Black September’ in 1984 when a murderous wave of repression was unleashed to bring Southern Chad back into the fold of the central government’.62 Even though the Court was free to bring charges against Déby it did not do so.63

Furthermore, Habré had already lost the support of the US and France that supported him throughout his abusive regime in the 1980s. With the support of the US, Habré had seized power in 1982 from Goukouni Oueddei, a former rebel comrade who had won elections but was considered to be pro-Libya - at a time when Libya was considered a threat to the West. The US and France supported Habré with military aid, logistical support and information. In two separate reports,64 HRW revealed how the US and France had provided support to Habré throughout his rule and ignored his leadership abuses and human rights violations in Chad. When the tide turned against Habré, the US and France became supporters of the trial of the dictator that they had enabled. The US government contributed US $1 million and France contributed €300 000 towards the Extraordinary Court’s budget.65 This scenario shows that the fact that some cases against former leaders in Africa are tried is dependent on the political disfavour of the elite. 66

In the case of South Sudan, even though IGAD has played a crucial role in the resolution of the dispute in South Sudan, a survey of the leaders in the East African region shows some disapproval to questions of international justice. Actors in the region, such as Kenya’s President Uhuru and Vice-President Ruto, are strong advocates against international criminal justice for leaders and senior government officials having themselves faced attempted trials by the ICC.67 Al Bashir of Sudan has been in power since 1989 with no end in sight to his leadership. The nature of politics in Ethiopia, Uganda, Eritrea and Djibouti also shows that leadership accountability and limits to leadership terms are not up for contestation. Ugandan President Yoweri Museveni has been in power for 35 years and reportedly has sent troops to back the South Sudanese government during the civil war.68 In this regard it is ‘not surprising, South Sudanese parties were highly attuned to these regional dynamics, and sought political advantage at each juncture, by soliciting support from neighbouring patrons’.69

The sentencing of Habré could be regarded merely as indicative of the fact that the wheels of justice turn slowly but surely. However, the victims of Habré’s cruelty had to wait for over 17 years for the ex-Chadian leader to lose political support before securing justice. As argued earlier, the uncertainty about some leaders responsible for rights abuses losing power complicates the question of justice on the continent and in South Sudan, in particular. Kur notes that ‘t he Hybrid Court is a step in the right direction. But for it to achieve its goals and deter the warlords from initiating another conflict, it must ensure that war criminals at the highest chain of leadership never escape justice.’ 70

With the current stance of the AU and its Protocol for the African Court the victims of abuses in South Sudan most probably will have to wait for a time when the leaders are likely to lose political backing to enable the trial of those leaders who orchestrated with near impunity the ongoing war in South Sudan from 2013 to 2018. As such, the immunity clause contributes to the atmosphere of violence being perpetuated, in part, by the leaders as they know they will not stand trial until such time as they cede power. The AU has to shift from its immunity stance to a non-immunity principle to end the senseless violence and impunity in the region.

It is worth noting that key debates on the topic of immunity for sitting leaders reveal that while incumbent political actors are the main critics of the indictment of sitting heads of state and senior government officials, civil society prefers the indictment of every suspect, including sitting heads of state. These conflicting positions show the divide between African political leaders and civil society on matters of accountability. The immunity clause for incumbent leaders raises doubts over the AU’s purported transition from the interests of a few state elites to the interests and rights of the African people. The immunity clause for leaders further negates article 4(h) of the AU Constitutive Act, which espouses the AU’s non-indifference to human rights abuses in member states if suspected leaders remain leading figures in the continental body and are immune from investigation and trial.